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the will in the precise manner prescribed by the present New York statute, may, however, be proven with less particularity than the other elements of factum, such as subscription and publication.86 The statute now in force does not prescribe the manner and form for such request to the witnesses; nor does it prescribe the facts which shall be evidential of such a request. No precise form of words is, therefore, requisite. Any evidence which imports such a request is probably sufficient, at least in cases where there is no fraud and the other elements of factum are determined to coexist.87 In numerous decisions the element of special request to attesting witnesses has been presumed, in the absence of fraud, from circumstances which are only indirectly evidential of such a request by

That such decisions are just is apparent, if we have regard to the object of the statute in requiring a request from the testator to the attesting witnesses. It has been held to be the prevention of an “officious signing by the witnesses without any privity with the testator." 89 Consequently when animus testandi is apparent, by evidence of a subscription on the part of the testator and a publication of a testamentary paper in due form in the presence of the actual attesting witnesses, it is not a violent presumption, that such attesting witnesses were those requested by testator to act as the attesting witnesses; at least in cases where no fraud is charged and proved. But, nevertheless, under the statute of New York there must be some evidence of testator's request to the attesting witnesses to act as such, or the statute is not complied with, and factum of the will is deemed not to be established."


86 Butler v. Benson, i Barb. 526; Doe v. Doe, 2 id. 200; Brown v. De Selding, 4 Sandf. 10.

87 Coffin v. Coffin, 23 N. Y. at p. 16; Hutchings v. Cochrane, 2 Bradf. 295, 296.

88 Matter of Lapham, 37 Hun, 15; Coffin v. Coffin, 23 N. Y. at p. 17; Belding v. Leichardt, 56 id. 680; Brady v. McCrosson, 5 Redf. 431; Hutchings v. Cochrane, 2 Bradf. 295; Matter of Woolsey, 17 Misc. 547; Matter of McGraw, 9 App. Div.

372, 382; Matter of Menge, 13 Misc. 553, 556; Matter of Murphy, 15 id. 208; Matter of De Hart, 67 id. 13.

89 Peck v. Cary, 27 N. Y. at p. 26.

90 Belding v. Leichardt, 56 N. Y. 680; In re Stewart's Will, 2 Redf. 68.

91 Tarrant v. Ware, note, 25 N. Y. at p. 429; Chaffee v. Baptist Missionary Convention, 10 Paige at p. 91; Matter of Hewitt, 91 N. Y. at p. 263; Neugent v. Neugent, 2 Redf. 369; Matter of Lyman, 14 Misc. 352, 360; Burkev. Nolan, i Dem. 436; Stein v. Wilzinski, 4 Redf. 441 ; Matter of Kivlin, 37 Misc. 187.

The necessary request by the testator to give capacity to witnesses as attesting witnesses may be made by another in the testator's presence, and if so made without any dissent on testator's part such request is to be taken in law, on the principles heretofore stated, as the request of the testator himself.93 The reading aloud by the testator, or in his presence, at the time of execution, of a properly drawn attestation clause® is generally conclusive evidence of testator's request to the witnesses to act as such, 95 as it is of publication, and even of a declaration of a prior subscription by testator.96 It is for this reason among others that an attestation clause should, if possible and convenient, always be placed at the end of a will, and at the time of the execution of the will such clause should be read over aloud in the hearing of the witnesses and the testator.97 But this is not indispensable. 98

Under the fourth subdivision of the present section of the Statute of Wills,99 the attesting witnesses must sign their names or make their marks at the end of the will," and they must sign after the testatora and in his presence, in order to be attesting witnesses.* But it is not indispensable that the attesting witnesses should sign in the presence of each other."

Attestation Clause. An attestation clause or certificate, annexed to a will, is a matter of legal precision and ordinary precaution, and not a matter of law. One form of such a clause, commonly used in practice, will be found at a prior page. An attestation clause is not a part of a will, and is not necessary to give validity to a will.? The important statement in Mr. Redfield's excellent work, that in the absence of an attestation clause there is never a presumption of due execution, publication, etc., of a will, is not justified, and has lately been criticised. Yet reading an attestation clause aloud to the assembled witnesses is, as we have seen, evidence not only of testator's subscription, but of publication and of testator's request to subscribing witnesses. It is not, however, in these aspects alone that the presence of an attestation clause may be important to probate or on an issue of factum of a will. In the event of the death of the attesting witnesses it may become per se evidence of a high order.'

92 Supra, p. 124.

93 Gilbert v. Knox, 52 N. Y. 125; Matter of Nelson, 141 id. 152, 157.

94 See such a clause, note 91, p. 114, supra.

95 Matter of Stewart's Will, 2

99 g 21, Decedent Estate Law.

1 Matter of Hewitt, gi N. Y. 261, 263; Mock v. Garson, 84 App. Div. 65.

2 Jackson V. Jackson, 39 N. Y. 153; Sisters of Charity v. Kelley, 67 id. 409, 413. Sed of. In re Karrer's Will, 118 N. Y. Supp. 427.

3 Hoysradt v. Kingman, 22 N. Y. 372.

4 Supra, p. 129.

6 Hoysradt v. Kingman, 22 N. Y. 372; Willis v. Mott, 36 id. 486; Matter of Phillips, 34 Misc. 442; Matter of Diefenthaler, 39 id. 765; Matter of Engler, 56 id. 218.

Redf. 77.

96 Matter of Nelson, 141 N. Y. 152, 157.

97 See reported note to Brinkerhoff v. Remsen, 8 Paige at p. 499.

98 See below "Attestation Clause."

The certificate of attestation annexed to a will is not, however, equivalent to the testimony of a deceased attesting witness, if such evidence were obtainable. It is evidence only to some extent of the facts stated in it, and the force of such evidence will depend on the circumstances of the particular case.10 But with very slight proof of confirmatory circumstances, a full certificate of attestation attached to a will may be highly evidential of the matters therein certified. 11

Where the certificate of attestation attached to the will is full and complete, and is subsigned by the attesting witnesses themselves, it may serve as evidence, if corroborated, to contradict the testimony of even the subscribing witnesses if their evidence is to the contrary of the matter contained in such certificate.12 Indeed

6 Supra, p. 114, note 91.

? Matter of Abel, 136 App. Div. 788; Jackson v. Jackson, 39 N. Y. 153, 159; Matter of Phillips, 99 id. 267; Matter of Burke's Will, 2 Redf. 239; Matter of Cornell, 89 App. Div. 412.

10 Orser v. Orser, 24 N. Y. 51; Matter of Nelson, 141 id. 152; Matter of Abel, 136 App. Div. 788.

8 Redfield, Surrogate's Practice (5th ed.) p. 171; $ 203, 7th ed. id.; Matter of Abel, 136 App. Div. at p. 791.

9 Jackson v. Jackson, 39 N. Y. 153, 159; Matter of Abel. 136 App. Div.788; Matter of Ellery, 139 App. Div. 244.

11 Woolley v. Woolley, 95 N. Y. at P. 235; Matter of Burnsee, 141 id. 389; Matter of Abel, 136 App. Div. 788.

12 Brinkerhoff v. Remsen, 8 Paige, 488; Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Dack v. Dack, 84 id. 663, 665; Matter of Will of Cottrell, 95 id. 329, 335; Matter of Nelson, 141 id, at p. 156; Misc. 492.

it is now said that in the absence of any other proofs a full and contemporaneous certificate of attestation attached to the will may, on due proof of the signatures of the deceased witnesses, be sufficient evidence to afford a presumption of factum of a will under the existing statute,13 and this is certainly true where there are any corroborative circumstances. 14 Whether the custody of the will may not be a corroborative circumstance is not, however, decided in this State. The proper custody of a document where the subscribing witnesses are all dead is, however, a very important consideration for courts on an issue of factum, or non est factum, of a deed or will. For it must appear in all such cases that the paper writing comes from such custody as is sufficient to afford a reasonable presumption of genuineness.15

But the formal execution of a will can not in any event be presumed, in opposition to positive testimony, merely upon the ground that the attestation clause is in due form.16

The attendance of a lawyer in charge of the execution of a will affords, in connection with a full and complete certificate of attestation, some presumption of a strict adherence to the forms required by law.17 And even where such certificate is defective in some respects, the attendance of the professional man, in charge of the formal execution of the will, will serve to negative the presumption arising from an omission in the certificate.18

The proofs of due execution of a will can be made out througlı the evidence of the professional man in attendance and in charge of the execution of the will, even if he is not an attesting witness.19

15 Cf. Matter of Abel, 136 App. Div. 788.

16 Woolley v. Woolley, 95 N. Y. 231; Matter of Balmforth, 60

Matter of Burnsee, 141 id. 389;
Matter of Cornell, 89 App. Div. 412;
Matter of Carey, 14 Misc. 486, 490;
Matter of Walker, 67 id. 6.

13 Matter of Sizer, 129 App. Div. 7, 10; Matter of Abel, 136 id. 788, 792.

14 Matter of Foley, 55 Misc. 162, 167; Matter of Kellum, 52 N. Y. 517; Matter of Abel, 136 App. Div. 788. Sed cf. Matter of Kennedy, 167 N. Y. 163, as to how far testator's own declaration may be regarded as corroborative.

17 Matter of Will of Cottrell, 95 N. Y. at p. 339; Worden v. Van Giesen, 6 Dem. at pp. 238, 239; Matter of Walker, 67 Misc. 6.

18 Matter of Nelson, 141 N. Y. 152.

19 Holcomb v. Harris, 166 N. Y. 257, 263; Matter of Cornell, 89 App.

Div. 412.

Where he is an attesting witness no question of confidential communication can arise, as by making him an attesting witness there is a waiver of confidence and a qualification of the witness even if otherwise incompetent.20

Republication of Wills by Codicils. It is still the law that a codicil may constitute, as before the Revised Statutes, a republication of an original will or prior codicil, but it seems only if such original will or prior codicil is executed with all the formalities now prescribed by the statute for an act of testamentation. It is said that a subsequent duly executed codicil does not now operate to publish a defectively executed will or prior codicil.21 By the old law before the Revised Statutes a codicil duly executed operated as a republication of a prior will.2 But a codicil did not have the effect of republishing a will of lands which was not duly executed and attested.23

Codicils. The Revised Statutes provided that the term "will" as used in the chapter (VI) on wills and testaments should include all codicils, as well as wills.24 And this purported to be only a revision of the prior Statute of Wills.25 The Legislature has since, in the chapter of the Code of Civil Procedure, relating to surrogates, again recognized codicils to wills as existing in practice.26 But no statute of the State defines a codicil, and, therefore, by well estab

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20 Matter of Nelson, 141 N. Y. 152, 155.

21 Lovelass on Wills, 373; Brown v. Clark, 77 N. Y. 369; Matter of Emmons, 11o App. Div. 701; Matter of Carll, 38 Misc. 471, 475, and see intimation of a distinction between proper and defective execution of original: Matter of Andrews, 43 App. Div., pp. 400, 401; affd., 162 N. Y. I; Matter of Conway, 124 N. Y. at p. 463, and Matter of Campbell, 170 id. at p. 87 (but see also Caulfield v. Sullivan, 83 id. at P. 161, to the effect that the provisions of will may be regarded as embodied in codicil and executed at the same time). At the present

writing Matter of Emmons, supra, seems to be the only direct authority on this point, and no appeal to the Court of Appeals was taken in that case. Cf. Matter of Douglass, 38 Misc. 609.

22 Van Cortlandt v. Kip, I Hill, 590, in error 7 Hill, 346, and see Lovelass on Wills 373, citing all the old leading cases.

23 Lovelass on Wills, citing Atty.Gen. v. Barnes, 3 Rep. Cha. 81; Pre. Chan, 270.

24 2 R. S. 68, § 71.

26 R. L. (of 1813) $ 20. See note to first ed. R. S.

26 § 2514, subd. 4.

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