(dissenting). The Surrogate was fully warranted in holding that upon the evidence adduced before him decedent did not declare the holographic instrument to be his last will and testament.
Subdivision 3 of section 21 of the Decedent Estate Law provides : * ‘ The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament.”
To comply with the statute there must be proof that the testamentary character of the instrument was communicated by decedent to the witnesses, and that the instrument was signed by him. ‘ ‘ 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.” (Matter of Turell, 166 N. Y. 330, 337.)
Here the testimony of the only two witnesses' present at the time of execution, expressly negatived any claim of publication or communication of the character of the paper subscribed. Each testified that decedent did not declare that the paper was his will. Neither of them understood it to be a will from decedent’s words or conduct.
Proponents of the document do not fill the void of the testimony on behalf of the only two persons present at the execution of the will by offering reasons for disbelief in the testimony of *582those witnesses. (Matter of Moore, 109 App. Div. 762, 767, 768, affd. 187 N. Y. 573.)
As the Surrogate noted, the statements of decedent that he was going on a trip and was leaving instructions in case anything should happen, do not give rise to the inference that the paper was testamentary in character. Such statements of decedent may have been referable to other documents as well as to a will.
In the circumstances, probate of the instrument was properly denied.
Dobe, J. P., Callahan and Beeitel, JJ., concur with Van Voobhis, J.; Cohn, J., dissents and votes to affirm, in opinion.
Decree reversed, with costs to appellants payable out of the estate. Settle order on notice.