This appeal brings before us two questions: one, of the competency of the decedent, and the other of the execution, in conformity with the statute, of the paper propounded as his will. I purpose to examine only the latter question, because I see no reason, upon such consideration as I have been able to give to the evidence, to differ with the court below upon the first point, and also because I have arrived without hesitation at a conclusion upon the latter, which makes any discussion of the testamentary capacity of the decedent unnecessary.
The statute requires four things to the execution of a valid will: 1. The signature of the testator at the end of the instrument; 2. That such signature be affixed or acknowledged by him in the presence of two witnesses; 3. The publication or declaration by the testator, to or in the presence of these witnesses, that the paper is his will; 4. The attestation and signature of the instrument by the two witnesses at the request of the testator. Each one of these acts must be performed and proved, and no court could, without repealing the statute, dispense with either upon any proof of testamentary intention or of compliance with the remaining requirements. The questions which have been discussed in the courts in respect to the execution of wills, have been questions of evidence respecting the character and the amount of testimony requisite to establish these necessary facts. Two very recent cases in this court have been referred to as relaxing the rules hitherto held by the courts in such cases, and it may be well to notice briefly these cases, and perhaps to correct any misapprehension of their bearing upon the questions presented by this appeal, before proceeding to consider the facts testified to by the *Page 34 witnesses in the court below. Although every testamentary cause must rest upon its own circumstances, as well in respect to the formal execution of the testamentary papers, as to the capacity of the alleged testator, yet the application which is made of rules of law to the evidence in any given case will furnish a precedent for those which are to follow. The cases to which I refer are Coffin v. Coffin (23 N.Y., 9), and Orser v.Orser (24 id., 51). This court held, in Coffin v. Coffin, that the publication of a will, and the request to the witnesses to attest it, may be made by the same statement or declaration, and that where one of the witnesses in the presence of the other, asked the testator if he wished him to sign or witness the paper as his will, the reply of the decedent that he did, was a publication or declaration by the testator that the paper was his will, and also, under the circumstances of that case, might be considered as addressed to both the witnesses, and was such a request to them to witness the will as is required by the statute. The effect of the rule thus given, in its application to other cases, will depend very much upon the circumstances from which it is to be inferred that a request to one witness, or an answer to an inquiry by one, is a request to both as well as a publication. That the publication of the will, as well as the request to attest it, may be made by the same declaration or statement, could hardly be denied. It is easy to imagine a statement, or a sentence of assertion or reply, which would distinctly include both these particulars. What circumstances surrounding such a transaction would give to a request or a reply to one witness in the presence of the other the same effect as if it were addressed to both, must of course be decided in each case for itself. It will be found, when we come to consider the present controversy, that the respondents are not relieved from the difficulties of their proof by any thing to be inferred from the decision in Coffin v. Coffin. With regard to the case ofOrser v. Orser, there is, if possible, still less in that which is at all material to the questions now before us. It is, perhaps, difficult to extract any general principle or rule from that decision. The case came up by an appeal after a jury trial of *Page 35 an issue, and the questions presented arose by exceptions to rulings of the judge, with reference to particular features of the evidence and instructions asked by the counsel. All which can be gathered from the decision in this court of matter of law is, that where one subscribing witness to a will is dead, a complete attestation clause in his writing, together with the fact that he was familiar with the formalities required by law, while the surviving witness was not, and other extrinsic circumstances, may be sufficient to overcome the want of recollection of the surviving witness. No such question as that arises in this case. There is little or no difference as to the facts or between the witnesses, and no want of recollection of what took place.
I will state the facts connected with the execution of the paper propounded in this case as the will of Robert S. Peck, as they appeared in the evidence of each witness before the surrogate. The paper was executed in the State of Connecticut. It was attested by three witnesses, all of whom were examined, and also the draughtsman who prepared the paper. Edward T. Clapp, who was the first subscribing witness, testified to the following facts: He was in the banking room of the Quinebaug Bank at Norwich, in the afternoon, and as he was about to leave, Mr. Samuel C. Morgan, the president of the bank, and the person who drew the will, called him back. Mr. Morgan was seated at a table a short distance from the witness, and the decedent Peck stood near him by the table. A paper lay on the table. Mr. Morgan said to the witness, "I wish you to witness Robert's will; he is going to sea, and is making his will before he goes." Mr. Morgan pointed to the witness where to put his name, and he leaned over the table without sitting down, and wrote his name. The witness remarked pleasantly to Mr. Peck, "I hope you have left me a good slice;" to which the latter made no reply, except a smile and a nod. Nothing was said by Peck, and nothing by this witness to him, except the remark I have quoted. It is to be inferred, I think, from a portion of the testimony of this witness, that he thinks that Peck's name had been affixed to the instrument before he *Page 36 signed his own name, although he does not say so. He certainly did not see Robert Peck sign the paper. After what I have related had occurred, this witness went away. Henry G. Huntington, the next subscribing witness, was at this time teller in the Quinebaug Bank. The banking room where these occurrences took place was not, I should judge, of any considerable size, but it was divided into two portions, by doors which, however, at this time, were open, and by the different use to which the front and rear parts of the room were appropriated. The front room or part of the room from which Mr. Clapp and Mr. Meech were called to the table, and where Mr. Huntington was occupied with his ordinary duties, was where the business of the bank and its customers was transacted. The back part of the building, which could be shut off by doors, as I have said, was known and used as a directors' room. Mr. Huntington, on being shown the paper propounded as the will, stated that he affixed his name to that paper in the directors' room of the Quinebaug Bank, at some time in the summer of 1858, at the request of Mr. Morgan or Mr. Peck, he could not say which. He was told it was Robert Peck's will, but he could not say by whom. Peck was somewhere within fifteen feet of him when he affixed his name as a witness. He thought he cast his eye over the attestation clause, because he usually does so in such cases, but did not remember whether he did so or not. He could not say that Robert Peck said anything in his hearing, nor did he remember Mr. Clapp speaking to him. This is the whole of his testimony. Stephen B. Meach, the third subscribing witness, was a clerk in another bank in Norwich at this time. He was in the Quinebaug Bank, standing at the counter transacting some business, when Mr. Morgan requested him to come and witness Robert's will, that he was going to sea, and was about making his will. Peck stood within ten or twelve feet of Morgan at the time. The witness went to the table and signed his name. He did not see Peck sign it, nor did he see his name signed to the paper at all. He did not run his eye over the paper, nor know what it was except by what Mr. Morgan said. He had no conversation whatever with Robert *Page 37 Peck, nor did he hear him say anything or any one else speak to him except the remark made by Mr. Clapp, to which he made no answer. Nothing was said to this witness by Mr. Morgan, except what I have stated, which was spoken to him as he stood at the counter, to call him into the back room. Mr. Morgan, the person who drew the will, after detailing the circumstances preceding its execution, the instructions which he received, and that Robert Peck either read the paper or heard it read after he had drawn it in conformity to these instructions, states the circumstances of its execution in the same way. After Robert had read or heard the will, Mr. Morgan told him it was necessary to have three witnesses, and seeing the gentlemen who witnessed the will at the other side of the bank, he spoke to them, and requested them to come and witness the will as witnesses to Robert Peck's will. Morgan thinks Robert was in the act of signing his name when he called or spoke to these gentlemen. Nothing more was said by any of the parties, except the remark made by Mr. Clapp to Peck, as he was leaving, and which was testified to by the other witnesses. This is the whole of the proof as to the execution of the paper. The attestation clause is complete and full, except that it does not state any request by the testator to the witnesses to attest the paper. Such a request might be implied from the request by Mr. Morgan in his presence, but that is not the difficulty in the case. With regard to the attestation clause, however, it must be observed that it cannot be called in to supply the deficiency which exists in the proof here, because that deficiency is not a mere want of recollection by the witnesses. Mr. Huntington has but a very slight recollection of what occurred; but the statements of the other witnesses, Clapp, Meach and Morgan, are remarkably complete and coincident, and give the whole transaction without leaving anything to be inferred or supplied. These witnesses appear to me to have testified, all of them, in a truthful, candid way; and there is not the slightest reason to suppose that anything more or anything different took place, besides what they relate. That relation comes to this: Robert Peck *Page 38 having signed this paper as they were in a different apartment, or in a separate portion of the apartment, Mr. Morgan, as Robert stood near him, called them, saying, "I wish you to witness Robert's will, he is going to sea and is making his will before he goes." The paper now offered for probate was lying on the table, and these three persons signed their names in a place indicated by Mr. Morgan, and retired, one of them making a casual and immaterial remark to Robert.
Now if the remark or request made by Mr. Morgan could be held as amounting to both a request to the witnesses, which it was, and also a publication of the will, which I should be inclined to think it was not; yet neither of the witnesses saw or witnessed Robert Peck's signature, and there is not the slightest proof of the acknowledgment of the signature to either of them. It, is plain that it was not so acknowledged, and it is equally plain that it had been affixed to this instrument when these three persons first saw it. It is true that the paper was, beyond a reasonable doubt, signed by the decedent while they where in the banking room. But none of them saw him sign it, or had his attention drawn to what was going on, until the decedent was at least in the act of rising from the table. Signing such a paper in the same room with a witness who does not see the act, and does not know at the time that any such act is taking place, is not signing in his presence. Each of the three subscribing witnesses says, in effect, that he did not see the decedent sign his name; two of them that he had left the table, and Mr. Morgan, that he was in the act of leaving when they were first addressed. It is, therefore, impossible to infer or conclude that these persons witnessed the act of signing the paper. Their statement upon that subject is not a mere want of recollection, but is as positive as the rest of their evidence. Mr. Meach says, he thinks he did not see Robert sign the paper. Mr. Huntington has no recollection about it, and Mr. Clapp says that Morgan was seated on the table and Peck was standing near him when the former requested him, Clapp, to come and be a witness, and he went there. And he added that when he first saw Peck, he was standing and not *Page 39 rising from the table, and that he was not signing when he reached the table. All this leaves no doubt that the signature was made before the witnesses' attention was attracted to the matter, and that it was not made in their presence. In order to comply with the statute, the signature, thus made, should have been acknowledged to the witnesses. There is no pretence that was done, and the proof therefore, fails.
This being a fatal and incurable difficulty, it is unnecessary to discuss the question of publication. I mean to be understood as not conceding that the proof of publication was sufficient, but I put my opinion upon the other ground.
The judgment of the Supreme Court and of the surrogate should be reversed, and a decree entered denying probate to the instrument propounded as a will.
SELDEN and ROSEKRANS, Js., expressed no opinion.
Judgment affirmed.