The surrogate's conclusion, that the will of the deceased was not executed and attested in the manner prescribed by the law of the state and that probate thereof should *Page 335 be denied, was based upon findings as to the facts which seem to me to be quite controlling. He found, in substance, as follows: that the instrument which was offered for probate, with the attestation clause appended thereto and subscribed by two witnesses, was in the handwriting of the testatrix; that, upon the occasion when it purported to have been executed, the witnesses had attended upon the deceased at her room in a hotel, in pursuance of her request to Mrs. Barnes, one of them, "to bring her husband with her to witness a document;" that then the "document," already signed, and "folded so that its contents could not be seen," was placed upon the table before them and being "told to sign at the place designated by the testatrix under the attestation clause," they affixed their signatures and were dismissed; that "the decedent did not sign such paper in the presence of the witnesses, or either of them;" nor did she "acknowledge such paper to have been subscribed by her" to either of them; that she did not, "either at the time of making such subscription, or at the time of the signing of the instrument by the witnesses, or on the said occasion, declare to, or in the presence of, the said witnesses, or either of them, that such instrument was her will" and she did not "in any way communicate to them that it was her will, or an attempted testamentary disposition of her property." Further, the surrogate, specifically, refused to find these requests: "That each of the witnesses to said paper writing knew at the time their names were signed thereto that it was the will of the decedent," and "that at the time each witness signed his or her name, he and she saw the signature of the decedent to the paper writing and read the attestation clause, or a portion thereof, including the words therein, `will and testament.'"
The decree of the Surrogate's Court, which was made upon these findings, was unanimously affirmed at the Appellate Division and while the appellants concede that, by reason of such affirmance, this court cannot review the evidence and must accept the facts as found, they contend that the question of law, nevertheless, remains whether upon these facts the *Page 336 surrogate's conclusion of law was correct. In substance, their argument is that, within a fair construction of the Statute of Wills, there was an acknowledgment by the testatrix of her signature and that there was a sufficient publication of the instrument as her will.
The only question upon this appeal then is, whether the Surrogate's Court could have admitted the proposed instrument to probate, as the last will and testament of the deceased, upon the facts as established. The Statute of Wills provides that "every last will and testament of real and personal property shall be executed and attested" in a manner prescribed. The subscription, required of the testator, shall be made by him in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been made, to each of the attesting witnesses, and, at the time of making the subscription, or of acknowledging the same, he shall declare the instrument so subscribed to be his last will and testament. (2 R.S. 61, § 40.) The surrogate, before admitting a will to probate, is required to inquire particularly into all the facts and circumstances and he "must be satisfied * * * of the validity of its execution." (Code Civ. Pro. § 2622.) Now it should seem to be pretty clear that whether an instrument propounded for probate was the will of the deceased and whether it was validly executed as the statute prescribes, are made pure questions of fact, which the surrogate must determine upon his inquiry. The feature of the case, which is deemed of such importance by the proponents, as affecting the question of publication and as demanding a different legal conclusion than that reached below, is that this was the holographic will of the deceased. The statute, however, makes no exception with respect to a holographic will, in its requirements as to execution, and it is not easy to understand how its holographic character dispenses with, at least, some substantial compliance with the formalities prescribed for the proper publication of a will. The statute still requires obedience. (Matter of Beckett, 103 N.Y. 167. ) It is, undoubtedly, true, in the case of a holographic will, that the *Page 337 dangers of fraud and imposition, or of undue influence, against which the statute was designed as a safeguard, are greatly diminished and that it is unnecessary to criticise as closely the terms and manner of publication. The atmosphere of a testamentary instrument, wholly in the handwriting of the testator, is such as, naturally, to dispose the judicial mind to accept it as his will with less strictness in the proof of a compliance with statutory formalities. In all cases, a substantial compliance will be sufficient and no particular form of words is required, or is necessary, to effect publication, (Matter of Hunt,110 N.Y. 278; Matter of Beckett, 103 ib. 167); but some compliance must be proved. The real question here is not with respect to the manner of compliance, but whether there could have been any compliance with the statutory requirements, when the character of the instrument was concealed and not communicated to the witnesses. The legislative intent was that a declaration should be made by the testator, either in words, or by signs, to the witnesses of his understanding of the nature of the instrument and a publication of a will requires that the testator declare, in some comprehensible way, that the instrument was signed by him. (Remsen v. Brinckerhoff, 26 Wend. 325; Gilbert v.Knox, 52 N.Y. 125.) It must appear that, as between the testator and the witnesses, there was some meeting of the minds upon the understanding that the instrument was the testator's will; that it had been subscribed by him and that the attestation of the latter was desired to the will so subscribed. The facts, which we must accept in this case, are that there was absolutely no communication between the testator and the witnesses, at the time they signed their names to this paper, and they barely permit of the surmise on the part of the witnesses as to the nature of the transaction in which they were participating. The formal attestation clause is not of itself sufficient, when it positively appears that the essential elements in the due execution of a will were absent. (Lewis v. Lewis, 11 N.Y. 220;Woolley v. Woolley, 95 ib. 231.) All presumptions in favor of its execution must yield in the presence *Page 338 of such positive facts as were found by the trial court; be the will holographic, or not.
This case differs from that of Matter of Hunt, (110 N.Y. 278), where the witnesses were unable to recollect precisely what took place, in detail. Their want of recollection was not permitted to invalidate the instrument, when they had testified that the circumstances must have been as stated in the attestation clause, or they would not have signed the instrument. There is a material difference between the case of a mere inability to recollect what took place, when there is no denial of the circumstances; or a case where the denial of the witnesses as to their signature or presence is met by proof of both these facts and of the circumstances surrounding the transaction, (Matter of Cottrell, 95 N.Y. 329), and a case like the present one, where the facts found established affirmatively that none of the requirements of the statute was complied with.
In each case, the circumstances, as they are disclosed by the evidence, must determine the question of the validity of the execution and publication of a will. The inquiry is to be made by the surrogate and his decision upon the evidence before him, either way, when approved by the Appellate Division, is binding upon this court.
There are no other questions involved in this appeal, which demand our attention, and I advise that the order appealed from should be affirmed, with costs to the respondents appearing by separate counsel in this court to be paid out of the estate.
O'BRIEN, HAIGHT, LANDON, CULLEN and WERNER, JJ., concur; PARKER, Ch. J., not sitting.
Order affirmed. *Page 339