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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 171 The evidence in this case establishes that both of the subscribing witnesses understood from the words and acts *Page 174 of the testatrix, uttered and done at the execution of the will, that she knew the paper she was signing to be testamentary and desired them to act as witnesses thereto. Miss Deen swears that she knew the paper to be a will from the words addressed to her by the testatrix, and similar means of knowledge attached to the language in which she requested the signature of Miss Cassini. It is entirely certain that the testatrix understood the character and contents of the paper which she executed; that she did exactly what she intended to do and without the possibility of mistake or imposition; for the will was a holograph; in her own handwriting from the declaration "My last will and testament," with which it began, to and including the words "signed in the presence of two witnesses," which immediately preceded her own signature. While the primary and principal purpose of the statute requiring a publication at the time of the testamentary act was thus nearly secured and the danger of error or fraud reduced to a minimum, its bare possibility remained, and the command of the statute still required obedience, since holographic wills are in no manner excepted from its terms. But in such a case, criticism of the terms and manner of what is claimed to have been a sufficient publication need not be so close or severe as where the question whether the testatrix knew that she was executing a will depends solely upon the fact of publication. It has often been held that a substantial compliance with the statute is sufficient. It requires no literal adherence to its own words and phrases, but permits the necessary information to be given in any manner adequate to the desired result. Where the testator cannot speak at all, or only with difficulty, he may communicate his knowledge by signs or by words to some listeners unintelligible. He must communicate it, however; but if he does that in a manner capable of conveying to the minds of the witnesses his own present consciousness that the paper being executed is a will, that must necessarily be sufficient. At the time of the execution of the will in controversy the testatrix did not once call it a will, but spoke of it as a paper. To a stranger the expression would fail to indicate what kind of a paper she understood *Page 175 it to be, and if no more than that was communicated to the witnesses it was not sufficient. But to them the indefinite and general expression was made definite and descriptive of a will by her own words connecting the expression with a previous conversation and referring the memory of the witnesses to it. Miss Deen had been a subscribing witness to an earlier will of the testatrix which the latter had declared to be such in express terms. The witness knew the relations subsisting between Alice McBlair and the testatrix. While Alice was a niece, she had been brought up from early infancy by Mrs. Beckett as a daughter, and loved and cared for as such. The witness knew also of the illness which had afflicted Alice and, for the time at least, had left her insane. Before Miss Deen was sent for to sign the will she had been told by Mrs. Beckett that the latter desired to make an alteration of the previous paper on account of Alice's sickness. Being sent for by a note she found the testatrix with this will before her. She asked Miss Deen if she would sign that paper, on account of Alice's sickness; that she wanted to make alterations of a previous one on that account; and that "she was sorry to trouble me again to sign the paper." The witness could hardly fail to correctly interpret Mrs. Beckett's meaning. In substance it was that the paper before her was intended as an alteration of a previously executed will, made necessary by the sickness of Alice, and that the signature of the witness was again, for a second time, desired to a similar paper and in the same capacity as at first. Miss Deen did so understand it. She swears to that explicitly, and explains how and why it was that she knew from the words of the testatrix that the latter understood the testamentary character of the paper being executed. Substantially the same thing is true of Miss Cassini except that she was not asked what she understood from the language of the testatrix. At the Grand Union Hotel in New York, the night before starting for Litchfield, Mrs. Beckett told the witness that she was going to make a will; asked Miss Cassini who she was to see if she was "reliable;" told her about Alice, and that all she had she intended to give her; and then asked Miss Cassini if she would *Page 176 be willing to sign that paper for her. The witness promised. She knew at the end of the conversation that Mrs. Beckett was intending to make a will for the benefit of Alice, to which she, Miss Cassini, had promised to be a witness. She was reminded of that promise soon after while at Litchfield, and told that the case might come into court some day, but she need not be afraid. And finally when the will was ready for execution the testatrix said, "this is the paper I spoke to you about signing." It is impossible not to see, taking the whole conversation together, that Miss Cassini must have understood the testatrix to declare that the paper she signed was the will which she had said she intended to make, and to which as a witness she had asked Miss Cassini to promise her signature.
But it is objected that a declaration dependent upon a previous conversation for its meaning will not answer the requirement of the statute, and that the words of publication must at the time be complete in and of themselves. It may be that an imperfect and indefinite declaration cannot be made sufficient by proof of a previous conversation not connected with the factum by the words of publication used. But here they were so connected by the very language of the testatrix at the time of execution. She herself so referred to the previous conversations, so connected them with the paper then present, as to make them an essential part of the communication, almost as completely as if she had formally repeated them. Looking at the substance of what occurred, and giving great importance to the fact that the will was a holograph, we are disposed to concur with the General Term in holding that due publication was proved.
But there is a further difficulty to be considered. The testatrix had executed a previous will which has not been found and cannot as yet be produced. No fact in the case points to its destruction by the testatrix, but every circumstance indicates that she never revoked or intended to revoke it. Under her deceased husband's will she had a power of appointment to the extent of $25,000, which she could exercise in favor of her sisters or her nieces, but which, without her testamentary *Page 177 action, would leave that sum a constituent part of her husband's estate. The witness who drew the missing will is quite sure that she exercised that power of appointment, and asserts as the result of his memory that the sisters of the deceased, who are the present contestants, were not named or provided for in the will which he drew. The will before us provides: "I leave and bequeath to my niece, Alice McBlair, all the money I die possessed of in several banks, and bonds, besides all I bequeathed to her in my former will." It is objected that this bequest is uncertain and indefinite, and the property intended cannot be selected out and inventoried. So far as it passes by this will it is capable of identification. It transfers whatever money the testatrix had at her death which was on deposit or stood to her credit in any banks, or was invested in and represented by bonds. That is certain which may be rendered certain, and an inquiry as to her bank accounts and an examination of her securities would disclose what and how much would pass by the will. The added phrase, "besides all that I bequeathed to her in my former will," tends to make the bequest independent of and separable from that contained in the former will. The word "besides" means in addition to, over and above, outside of, and separately from, what had been previously given. And the later bequest is so absolute and without condition, so surely intended to stand by itself and dictate its own effect, that it may be operative whether the earlier provision is known or unknown. (In re Greig, L.R., 1 P. D. 72.) Nor does it alter the case to say that the sisters are thus unprovided for. It is quite doubtful whether the previous will gave them any thing, but if it did provide for them out of the $25,000, its loss is alike their misfortune and that of Alice, and the latter should not lose what is given to her for that reason. But they are not wholly unprovided for. They themselves tell us in their counsel's brief that Mrs. Beckett had accumulated over $40,000, of which $30,000 was in banks and in bonds, and the balance in the hands of various parties and in the form of furniture and silver-ware. Something like $8,000 or $10,000 is thus apparently left undisposed of for the next of kin, and *Page 178 their struggle here is to secure the whole at the expense of the manifest and clear intention of the testatrix. We think the effort should not succeed.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.