By the Court,
Mullin, J.To authorize a surrogate to admit a last will to probate, it must be 'executed and attested in the following manner : 1st. Subscribed by the testator at the 'end of the will. 2d. Such a subscription shall be made in presence of each of the attesting witnesses, or shall be acknowledged to have been so made to each *391of the witnesses. 3d. When the testator subscribes the will, or makes the acknowledgment, he shall declare the instrument so subscribed to be his last will and testament. 4th. There shall be two witnesses, who shall sign at the end of the will, at the request of the testator. (3 R. S. 144, § 35, 5th ed.)
In Coffin v. Coffin, (23 N. Y. 15,) it is said that the declaration that the instrument is the testator’s last will and testament need not be made in any particular form. Any communication of the testator , to the witnesses whereby he makes'known to them that he intends the. instrument to take effect as his will, will satisfy the requirement. In that case both witnesses were present, and one of them asked the testator if he wished him to sign or witness the will, and the testator answered in the affirmative. This was held a good publication. The judge delivering the opinion says: “ There can be no doubt that such a declaration can be made in answer to a question, or even by a sign. It is only required that it be understandingly made.”
In Lewis v. Lewis, (1 Kern. 226,) Allen, J., says: “ To satisfy the statute, the testator must in some manner communicate to the attesting witnesses, at the time they are called to sign as witnesses, the information that the instrument then present is of a testamentary character, and that he then recognizes it as his last will and testament by some assertion1 or clear assent in words or signs ; and the declaration must be unequivocal. The policy and object of the statute require this, and nothing short of this will prevent the mischief and fraud which were designed to be reached by it. It will not suffice that the witnesses have elsewhere, and from other sources, learned that the document which they are called to attest is a will, or that they suspect or infer from the circumstances and occasion that such is the character of the paper. The fact must, in some manner, although no particular' form of words is required, be declared by the testator in their presence, that they may *392not only know the fact, but that they may know it from him, and that he understands it, and, at the time of its execution, which includes publication, designs to give effect to it as his will; and to this, among other things, they are required by statute to attest.”
Keeping in mind this construction of the clauses in question, let us proceed to examine the evidence given before the surrogate, 'in order to see whether it comes up to the standard established by the courts. Mary Fitzgibbon was one of the witnesses, and subscribed her name at the end of the will, as required by the statute. The certificate signed by her is in the usual form, but it is not of itself evidence to prove the due execution of the" will. She was therefore called before the surrrogate, her examination under oath reduced to writing, and in that examination she. testifies that she saw the deceased sign his name at the end of the paper. He said he wanted her to sign her name to a paper. She did so. Did not hear him say that it was his last will and testament. She signed it in his presence. ' It cannot be seriously claimed that upon the evidence thus given the statute has been complied with. On the contrary, the náost important requirements are entirely disregarded. If we go to her oral evidence, taken on a more full and careful direct and cross-examination by counsel, the case is not changed. She says: “I heard Starr say at the time-Mr. Douglass signed the instrument, that it was Mr. Douglass’ last will and testament; he referred me to the margin, with red ink notes, and then turned over the pages and said it was Mr-. Douglass’ last will and testament; then Douglass signed it; there was a separate paper concerning Sarah; Starr said sign that; Douglass said, I. will sign in both places; think'he signed the one concerning Sarah first; I sat down in the. chair by tbe stand, and Douglass said, we want you to sign this; Mr. Douglass did not call it his will; Starr said it was Mr. Douglass’ will; Douglass did *393not say to me, I want you to witness this instrument; he did not tell me what it was; Douglass signed it, and then put his finger on the seal,” On her cross-examination she says she “ supposed it was a will, because Starr told her so, and because Huggins had been, there a few days before, making a will; all Douglass said was, we want you to sign this; Douglass was very hard of hearing.” She also testified that she had been in Douglass’ employ for some time, and she did not think, judging from her experience with him, that Douglass heard all Starr said when he spoke to her about signing the will, and that it was Douglass’ last will. She testifies to other matters, but the foregoing is the substance of her evidence on the subject of the execution of the will, and I repeat, it fell very far short of establishing a legal execution of it. Hot one word is spoken by Douglass, except to say that he wanted her to sign this, and she thinks he may have said, pointing to the seal, that it was his. Starr said it was Douglass’ will, in his presence, but there was no word or sign of assent, or any indication that he understood what was said. This would be enough to prevent probate ; but súperadded to this is evidence of great deafness, and the opinion of thfe witness, founded on her acquaintance with him, that he did pot hear what Starr said.
But on the failure of one witness to remember that all the statute formalities were complied with, if they are proved to have been complied with, by the other, the will will be admitted to probate. (Nelson v. McGiffert, 3 Barb. Ch. 158.) Starr, the other witness, testifies with the greatest minuteness to the doing of all the statute requires to be done, in order to constitute á valid execution and publication of a will; and within the case of Nelson y. MoGiffert due publication was established. But before the principle can apply, the surrogate must be satisfied that the witness is truthful; that he is telling the transaction precisely as it occurred. If the witness undertakes to swear to the *394matters which the other witness swears never occurred, it is for the surrogate to say which he .will believe.' The difficulty in this case is, not that the witness Mary Fitzgibbon has forgotten what occurred, but it is that she recollects that the essential things required by the statute were not said ór done.
[Oswego General Term, July 8, 1862.Mullin, Morgan and Bacon, Justices.]
I think the surrogate was right in holding that he could not, on this evidence, admit the will to probate. He was personally interested in the fund willed to the corporation, and he had most unfairly withheld all information'on that subject, when he could not have forgotten that he was ■entitled to demand, five per cent of the money given through his agency to the corporation, of which he was agent. Add to this his own statement of his intercourse with the testator; the influences brought to bear upon him to obtain money for their corporation; his- bodily infirmities ; his great age; the opportunity afforded to practice on his religious or benevolent feelings; the manner in which, and the stéps by which, a gift and bequest obviously greatly beyond what the testator originally intended to give to such purpose, all conspire do convince me that the will ought not to be admitted to probate on the evidence furnished to the surrogate.
It is quite clear that the surrogate means to rest his decision on his want of confidence in the evidence of Starr, and his belief that the witness Mary.'has honestly stated what transpired on the occasion of the execution of the will. On this ground, I think he was right, and that his decree' should be affirmed, with costs.
Bacon, J., dissented.
Decree' affirmed.