The contestant and appellant is the widow of the testator. The testator died ¡November 23,1895, leaving the widow, and three children by a former wife, his only heirs at law and next of kin.
His will was made June 20, 1883, prior to the death of such former wife. The estate consists entirely of personal property. There were three witnesses to the will, Hubbard, Skinner and Guy. " Hubbard was dead at. the time the will was presented for probate, and his signature as a witness thereto was not proven. The other two witnesses were examined before the surrogate upon the proceedings resulting in the probate of the will. The only question litigated before the surrogate (aside from the questions as to the construction of the will) was whether the due formalities were observed in its execution. The will was holographic, was acknowledged by the testator to the witnesses to be his will, and they all subscribed their names thereto as witnesses, at his request, in his presence and in the presence of each other, signing the *568ordinary attestation clause, stating among other things that the will was signed in their presence.
The only-question is whether, upon all the evidence, the surrogate was justified in .finding that the testator subscribed the will in the presence of the witnesses, or acknowledged his signature thereto to each of the witnesses. It is not disputed that it was necessary to-establish a subscribing of the will in the presence of the witnesses, or an acknowledgment of the testator’s signature to each witness, and that if an acknowledgment was relied upon, it must have appeared that the signature itself was visible to the witnesses. (Matter of Mackay, 110 N. Y. 611; Matter of McDougall 87 Hun, 349; Matter of Laudy, 148 N. Y. 403.)
In Orser v. Orser (24 N. Y. 51) it was held that a will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate, although none of the subscribing witnesses are able to swear from recollection that the formalities required by the statute we're complied with, and even although some of them should swear positively that they were not, if the other evidence warrants the inference that they were.
In Trustees of Auburn Seminary v. Calboun (25 N. Y. 425) it was held that facts making due execution of a will need not all, or any of them-, be established by the concurring testimony of the two subscribing witnesses. While both witnesses must be examined, the will may be established even in direct opposition to the testimony of . both of them.
In Matter of Will of Cottrell (95 N. Y. 335) it was held that a regular attestation clause, shown to have been signed by the witnesses and corroborated either by the circumstances surrounding the execution of the instrument, the testimony of other witnesses to the fact of due execution or other competent evidence,, is sufficient to establish a will signed by the testator, even against the positive evidence of the attesting witnesses to the contrary.
There are many other authorities to this same effect, and the principles established in these cases will hardly be controverted. Applying them to this case, it must be held that the facts and cir, cumstances in proof before the surrogate were such as to warrant him in finding a proper execution of this will. He was justified in finding, notwithstanding the want of recollection on the part of the witnesses, *569or their' more or less positive evidence to the contrary, that the testator signed the will in their presence, or at least acknowledged his signature to each of the witnesses, such signature being visible to them at the time. The issue appears to be somewhat narrowed by proof given before the surrogate to the effect that the body of the will, the signature of the testator and the body of the attestation clause were all written b)’’ the testator himself, and with the same ink and pen, while the ink and pen used by the witnesses in signing their names were different from those used by the testator. This would seem to indicate that the will was signed by the testator before the witnesses were called in. If this was a fact, then the only question remaining was whether the acknowledgment of the testator’s signature to each of the witnesses was made, it being visible to the witnesses at the time.
That the testator acknowledged the will to be his, and declared it to be his, is not disputed. It was sworn to by the witnesses and was not denied. This acknowledgment would by fair inference seem to cover the signature, as well as the body of the will, the signature having been subscribed to the will and being there at the time of such acknowledgment. (Matter of Will of Buchan, 16 Misc. Rep. 204, and the cases therein cited.)
The. only question really left then was, whether there was evidence before the surrogate, authorizing him to 'find that the signature was visible to the witnesses when it was acknowledged to them by the testator.
The will was executed June 20, 1883. The hearing before the surrogate when the witnesses gave their testimony was February II, 1896. More than twelve years had then elapsed since the transaction occurred, as to which the witnesses spoke. Can memory be relied upon for so long a time to give a correct account in detail of the transaction ? Are we to credit fully the statements of the witnesses, to believe that they gave all that occurred, all that was said and done, and precisely as it was said and done ? Especially are we to give such effect to the evidence of the witnesses, when it tends to contradict the-attesting clause, signed by the witnesses at the time, the probabilities of the case and other circumstances appearing in in the case, tending to show the proper execution of the will ? It *570seems to us that the surrogate was justified in finding that the will was properly executed, and that he could not well arrive at any other conclusion. We do not consider the questions as to the construction of the will inasmuch as the majority'of the court agree to reverse the decree because the will was not shown to have been properly executed.
Our conclusion is that the decree of the surrogate admitting the will to probate should be affirmed, with costs.
O’Brien, J., concurred.
Decree reversed, case remitted to the Trial Term of the Supreme . Court to be tried before a jury, with costs to the contestant to abide the result.