On the 19th of October, 1904, Jane Sohreiber died, leaving what purported to be her last will'and testament, which bore date October 14, 1904, and upon proceedings taken by the executrix therein named, the same was admitted to probate against the objections of. decedent’s husband, as her last will and testament, valid to pass personal property, and he has appealed.
*496The validity of the decree of the Surrogate’s Court admitting the will'to probate, is challenged principally upon'the ground that there was (l).no proof to establish testamentary capacity of the testatrix; arid (2) that the proof was insufficient to justify, a finding that there was a due execution and publication of the instrument as a last will and testament: The two subscribing witnesses were the only ones sworn in the probate proceedings, neither of, whom, by way of opinion or otherwise/ gave' any testimony whatever bearing on the subject of testamentary capacity of the testatrix, or that she was, at the ■ time of the execution,' not under restraint.
' Section 2623 of the Code of Civil Procedure expressly provides ¡that if- it appears to the surrogate that the will was duly executed and that the testator at the time of executing it was, in all respects, competent to make a will and not under restraint,” then it musf be admitted to probate. The phrase “if it appears to the surrogate,” as used in this section, implies that theremust be some evidence given tending to show that the person who made the will was competent to make it, and, at the time of its execution not under restraint. Evidence, is the only way by which a fact can be made “ to appear ” to one acting in a judicial capacity. This must be. so, otherwise there would be no way of reviewing an official act., This section,, therefore,, is equivalent to a positive requirement that the fact of competency must be established in the first instance by sufficient, evidence by the. proponents of a will. This is usually done by the. subscribing witnesses (Miller v. White, 5 Redf. 321); inasmuch as the proponent has the affirmative of the issue (Matter of Cottrell, 95 N. Y. 336 ; Matter of Freeman, 46 Hun, 458), arid unless it be done, probate should be refused. (Matter of Goodwin, 95 App. Div. 183.) Indeed, if there could have been any doubt upon the subject, it was removed by Matter of Ramsdell (16 N. Y. St. Repr. 281), where probate Was denied upon this express ground and the decree of the surrogate was affirmed by the late General Terin (20 N. Y. St. Repr. 446), which in turn was affirmed by the Court of Appeals (117 N. Y. 636). And to the same effect is Matter of Goodwin (supra) and Kingsley v. Blanchard (66 Barb. 317).
It is undoubtedly true that there is a presumption, as contended by the responden % partly of "law and partly of fact, that ¿very man is *497sane. But this presumption is not enough, in view of the section of the Code referred to, to he the basis of a finding that a testator, at the time an alleged will was made, was competent to maké it and not under any restraint.
The evidence bearing upon the execution and publication of the will is quite meagre. The will, as already indicated, was made only a few days before the testatrix’s death, and at a time when it is quite evident she was very ill. The witness McMullen testified : “ I went over there and I was asked to sign the paper, and I done so. It was read over to Mrs. Schreiber. After it was read over to Mrs. Schreiber she signed her name. The pen broke. It was with her paralyzed hand that she done it.” The witness does not say who requested her to sign, nor is there anything in her testimony to indicate — other than the reading of the will and that thereafter the testatrix signed it — that she knew, when she did so, it was her will.
As to the other witness, she testified: “ The will was read and she recognized me. She nodded to me. * * * I was requested to sign that; to write our names. Mrs. Schreiber requested it.” Just how the request was made does not appear, but the witness further stated: “ I heard the paper read. It was read to us all there. She nodded to me that I should sign it. She could not speak very well. She was paralyzed, but she was conscious. She recognized me when I came in and nodded to me, but could speak very little.” This is substantially all the testimony there is bearing upon the question of the execution and publication, and while it may be sufficient, nevertheless, it is so unsatisfactory that I think there should be a further hearing on the subject.
I am of the opinion, therefore, that the decree of the surrogate should be reversed and an order made under section 2588 of the Code of Civil Procedure directing the trial by a jury of the questions of the competency of the testatrix, as well as the due execution and publication of the will, with costs to the appellant to abide the event, payable out of the estate.
O’Brien, P. J., Clarke and Houghton:, JJ., concurred; Ingraham, J., dissented