In re Mackay's Will

• Decision Date: 26 October 1888
• Citation: 110 N.Y. 611,18 N.E. 433
• Parties: In re MACKAY'S WILL.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 611

18 N.E. 433

In re MACKAY'S WILL.¹

Court of Appeals of New York.

October 26, 1888.

Appeal from supreme court, general term, Third department.

Application to surrogate's court of St. Lawrence county, to probate the will of James Mackay, deceased. From a decree refusing probate the executors and legatees appealed to the general term, where the surrogate's decree was affirmed, and they appeal to the court of appeals. For opinion of the general term, see 44 Hun, 571.

Louis Hasbrouck, for appellants.

Wm. H. Sawyer, for respondent.

EARL, J.

The subscribing witnesses came to the dwelling-house of the deceased by previous appointment, and, while seated at his writing-desk, he said to them: ‘Gentlemen, what I sent for you for was to sign my last will and testament.’ Thereupon he took from his writing-desk the instrument offered for probate, and, laying it before the witnesses, said: ‘It is now all ready, awaiting your signatures.’ He then presented the instrument to the witness McCarrier for his signature, and he signed it, saying, as he did so, ‘I am glad, Father Mackay, you are making your will at this time; I don't suppose it will shorten your life any,’ to which he replied, ‘Yes, he wanted it done, and off his mind;’ and then the witness Mulligan, who had joined in this conversation, signed the instrument, as a witness. At the time of exhibiting the instrument to the subscribing witnesses he told them it was his will; but he handed it to them so folded that they could see no part of the writing, except the attestation clause, and they did not see either his signature or seal.

There would undoubtedly have been a formal execution of the will in compliance with the statutes, if the witnesses had at the time seen the signature of the testator to the will. Subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they see it. And so it has been held in this court. In Lewis v. Lewis, 11 N. Y. 221, where the alleged will was not subscribed by the testator in the presence of the witnesses, and when they signed their names to it it was so folded that they could not see whether it was signed by him or not, and the only acknowledgment or declaration made by him to them, or in their presence, as to the instrument, was, ‘I declare the within to be my will and deed,’ it was held that this was not a sufficient acknowledgment of his subscription to the witnesses within the statute. In that case ALLEN, J., writing the opinion, said: ‘A signature neither seen, identified, or in any manner referred to as a separate and distinct thing, cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name to which...