The only question presented upon this appeal is whether the testator acknowledged his signature to his will to the subscribing witnesses at the time they signed the attestation clause. The proof shows that the testator drew up the will in his own handwriting, and brought it to one Jones, who drew up the attestation clause to the same. One of the witnesses, Stoker, testified that he was present at the time, and that Jones asked the testator if the signature to the will was his, and he replied that it was; that Jones then asked him if that was his last will and testament, and he said it was; that at that time it had been signed by the testator and that the two witnesses thereupon, at testator's request, signed their names in his presence and in the presence of each other. This witness' testimony shows that the statute was complied with strictly. The witness Jones testified that he did not recollect all that occurred, but that the testator came into his office with a paper which he thought was the will in controversy, and stated that he desired him to witness his will; that he asked him if he acknowledged the paper to be his last will and testament and the testator said he did; that he then asked him if he desired himself and Stoker to sign it as witnesses, and he said he did; that they both then signed it in the presence of each other and of the testator. On cross-examination this witness stated that he could not swear that the testator said that was his signature, but he swore he knew he acknowleged that it was his last will and testament. The most that can be claimed for the qualification thus made is, that the witness did not recollect, but as he had already sworn that the testator had declared the instrument to be his last will and testament, the last statement cannot be regarded as a qualification of what he had previously testified to. Even if there was a failure of recollection, inasmuch as one of the witnesses testified positively to the due execution of the will, such a want of recollection cannot materially affect the testimony which established *Page 557 the legal making of the will. The authorities are numerous which sustain the position that where one witness testifies positively to the due execution of a will, the want of memory of another cannot overcome the positive testimony, and the proof will be regarded as sufficient. Aside from what has been already remarked, we think that the testimony of Jones, who swore positively that the testator acknowledged the will to be his last will and testament, was an acknowledgment of his signature, and sufficient, with the other evidence given by him, to establish a due execution of the will. The signature was plainly visible upon the instrument itself, and the testator having requested Jones and Stoker to subscribe their names to it as witnesses, and he having acknowledged the same to be his last will and testament, the statute was fully complied with in this respect within the decisions of this court.
It is insisted that the testimony of the subscribing witnesses was contradicted by persons who were present at the time. These witnesses had nothing to do with the execution of the will, were present accidentally and, the presumption is, did not give the same attention to what transpired as the subscribing witnesses did. Their testimony must be taken, therefore, with considerable allowance and is not entitled to the same weight as the evidence given by those whose business it was, and who were called upon to witness the execution of the will. Certainly such evidence, under no rule, can be held to be entitled to more consideration than the positive testimony of the subscribing witnesses. It is said that these outside witnesses corroborate the testimony of Jones, which, it is claimed, established the fact that the will was not signed by the testator at the time of the alleged execution of the same. As already indicated we do not so understand Jones' evidence. It clearly tends to establish the due execution of the will and the most that can be claimed under any circumstance is that there was a conflict of testimony, which it was the province of the surrogate to consider. As he has passed upon the question, as to the due execution of the will, as to the acknowledgment of the signature of the testator, upon conflicting evidence as a question of *Page 558 fact, and the General Term having affirmed his decision, it is not reviewable in this court. (Marx v. McGlynn, 88 N.Y. 369;In re Ross, 87 id. 515.)
The order of the General Term should be affirmed.
All concur.
Order affirmed.