On an appeal from a surrogate’s decree admitting a will to probate the Appellate Division should consider the whole evidence de novo. . (Matter of Brunor, 21 App. Div. 259.) In such consideration it has the same power to decide questions of fact' which the surrogate had (Code Civ. Proc. § 2586), and if in doubt whether the will were duly executed, to set aside the pro-: bate and direct a trial of the issues before a jury. (Code Civ. Proc. § 2588; Matter of Manton, 32 App. Div. 626; Howland v. Taylor, 53 N. Y. 627.)
After a careful consideration of all the evidence taken by the surrogate I think there exists a doubt sufficient to justify the court in setting aside the probate and sending the matter tot' a jury to determine whether the will in question were ever signed by the testatrix. At the time of her death she- was over twenty-one years of age. The will is alleged to have been made on the 3d of February, 1912, and she died suddenly on the tenth of that month. Prior to her. death she had enjoyed good health, was a person of strong mind, of at least ordinary intelligence, could read and write, and properly manage her own affairs. Her only immediate relatives were a sister in- an insane asylum and a niece, neither of whom *733was in any way mentioned or referred to in the will. After her sister was confined in the insane asylum 'she visited her several times a year and was solicitous as to her care and comfort. The executrix and sole beneficiary under the will is Mary Galvin—• not a relative — and the only connection which the testatrix is shown to have had with her is at most when out of employment, boarding at her house for which it is fair to infer from the record she paid. One of the subscribing witnesses is Adelaide Galvin, daughter of Mary Galvin, and the other is Joseph E. Brown, the daughter’s intimate friend, and the person who drew the will is an undertaker who had been on terms of intimacy with the subscribing witnesses and Mary Galvin for many years. The will purports to have been signed by the testatrix making her mark. The attestation clause so recites and both of the subscribing witnesses testified she signed in that way.
It may be in the city of New York that wills are frequently drawn by undertakers who happen to be notaries public, but when a person of ordinary intelligence, who can read and write, signs such will by mark, the court should require some reasonable explanation why that course was adopted. A forged signature, in most cases,-, can be detected, but a signature by making a mark, if a forgery, is almost impossible of- detection.. It is for this reason, in the latter case, where the witnesses to such mark are ■ interested by taking a substantial interest or are the- intimate relatives or intimate friends of those who do, that very clear .and satisfactory evidence is required to establish the validity of • the mark. (1 Underhill Wills, 255.)
Such evidence, I think, was not here given; on the contrary, the same is far from convincing-, and, as it seems to me, bears evidence of being manufactured. The testatrix, at and immediately prior to her death, was employed as a chambermaid at the Woman’s Hospital in the city of ’New York. Just how long she had been there employed does not appear, but it is fairly to be inferred for some considerable time, on account of - the intimacy she had with other employees. Anna Gallagher, another employee of the hospital, who for eight months immediately prior to the testatrix’s death had roomed with her, *734testified that she was not out of the hospital on the evening the will is alleged to have been' made. And from her testimony •and the testimony of the witness Lindsay, also an employee of the hospital, it seems incredible that the testatrix could have been absent from the hospital for such a length of time as that stated by the subscribing witnesses and especially that of Galvin.
The genuineness of the mark is not only doubtful, but the testimony of the subscribing witnesses, as well, as that of the one who drew the will, tend in no small degree to increase the doubt. The witness Galvin testified that the testatrix, some three weeks prior to the making of the will, asked her about it; that she stated she did not know but .would ask her personal friend, Mr. Brown; that Brown told her to take the testatrix to Dargeon;. that she introduced the testatrix to Dargeon and they had a talk; that the testatrix then asked the witness if she could not get Mr. Brown as a witness; that on the evening the will was executed the testatrix was at Galvin’s house; that .nothing was there said about the will, but in walking home with her the testatrix asked “ if we would attend to that little business that evening, * .* * and I told her * * * I would be perfectly willing to go in the evening and we went; ” that they thereupon went to Dargeon’s office and met Dargeon and Brown; that before the testatrix made her mark Dargeon read the will and then handed it to her; that she took it, made her mark and then asked her and Brown to sign as witnesses, which they-did. Brown testified that he was at Dargeon’s office when the witness Galvin and the testatrix arrived, and that the testatrix and Dargeon went into a rear office for a short time and then Dargeon went upstairs to another office where the will w"as drawn; that after he had drawn it, Dargeon came downstairs and at the testatrix’s request read it to her in the presence of both witnesses. Dargeon testified that he first met the testatrix two or three weeks before the will was drawn; that she was brought to . his office and introduced by the witness Galvin; that he took her to the rear office, and she then told him she had some money in the bank and would like to make some disposition of it in case of her death; that he told her she could *735do it by having it transferred in the bank or making a will, and she said she preferred making a will; that she asked him if he would draw it for her, and he told .her he would at any time convenient for her; that he drew the will on the evening in question, and when pressed on cross-examination as to why he had stated in the attestation clause that it was signed by mark, he replied that when she told him how to prepare the will she said that she would sign in that way because “I am in a state of excitement and feel very nervous.”
So that we have a person of full age, accustomed to reading and writing, of ordinary intelligence, in the habit of transacting her own business, making deposits in the bank and writing her own signature, in good health, going deliberately to an undertaker to have her will prepared and executed, and stating in advance of the execution that she will sign the same by making her mark, and the only excuse she gives for so doing is that she is in a state of excitement and feels very nervous. This is not the kind of proof which the law requires to explain why a person who can write signs a will by mark, and especially so when the relation of the subscribing witnesses and the person who drew the will to the sole beneficiary — who is in no way related by blood — is considered. Not only this, but the person who drew the will was a comparative stranger whom she had never met but once before and in whose custody she left the will after it was executed, and where it is claimed it remained until after she died. I cannot help but feel, under such circumstances, that property ought not to be taken from those who would otherwise inherit it, at least until a jury has passed upon the question.
For these reasons I am unable to concur in the opinion of Mr. Justice Dowling and vote to reverse the decree of the surrogate to the end that the matter may be submitted to a jury.
Miller, J., concurred.
Decree affirmed, with costs.