This is an appeal from a decree determining that an election to take as a surviving spouse is invalid and that the widow executed and acknowledged a valid waiver of election.
The Decedent Estate Law (§ 18, subd. 9) in part provides: ‘‘ The husband or wife, during the lifetime of the other, may waive or release the right of election to take as against a particular last will * * * A waiver or release to be effective under this subdivision shall be subscribed by the maker thereof and either acknowledged or proved in the manner required for the recording of a conveyance of real property. ” (Emphasis supplied.)
The decedent, a member of the Bar, died on November 2,1952. Surviving him were his widow, whom he married on September 5, 1947, and his brothers and sisters. In June 1953, the widow served notice on her deceased husband’s executor that she elected to take her share of the estate as in intestacy, pursuant to the Decedent Estate Law (§ 18). Thereafter she died and her executors commenced the proceeding which resulted in the decree appealed from.
Concededly the widow signed a waiver of election sometime in August, 1947, which antedated her marriage to the decedent. The dispute between the litigants is with respect to the validity of the alleged acknowledgment of the waiver. The executors of the decedent contend that it was acknowledged before a notary public on September 29, 1947. Conversely, the widow’s executors assert that she never appeared before the notary and never acknowledged the waiver or her signature thereon. Although the instrument in question indicates on its face that it was intended to be signed and acknowledged prior to the marriage *565of the parties, it was not acknowledged, if at all, for at least a month after that occurrence.
In 1954, Mrs. Goodman became seriously ill and an application was granted to perpetuate her testimony. Upon her examination she categorically denied ever appearing before the notary whose certificate is a part of the instrument, denied ever having seen him and denied that she had ever acknowledged the execution of the waiver to anyone. She died shortly after her testimony was taken. It is asserted by counsel for her executors that at the time the application for the perpetuation of testimony was made, they disclosed to respondents’ counsel that the notary had signed a statement to the effect that the widow had not acknowledged the waiver before him.
Without detailing all the proof presented at the hearing before the Surrogate, it will suffice to point out that the petitioners called the notary presumably to testify that the widow had not acknowledged the waiver, in accordance with two statements which he had previously signed.* To the amazement of the petitioners, the notary testified that the certificate of acknowledgment was his and ‘‘ [i]f I signed it, I saw her, yes, Sir. ” It then developed that he had also signed two affidavits for the respondents in which he affirmed that Mrs. Goodman had acknowledged the waiver to him and attempted to explain away the contradictory statements as being made under “ pressure ”. Other material testimony was given by two reputable members of the Bar, who, in substance, stated that the notary had informed them that one Lucy Schoenfeld had presented the waiver to him for his certification. Lucy Schoenfeld had been an employee of a business concern in which Mrs. Goodman had an interest, but was not available as a witness at the trial because of her death prior thereto.
That the notary’s testimony should have been carefully scrutinized and evaluated cannot be gainsaid. The record discloses that the learned Surrogate had some concern with respect to this vital proof, for he examined the witness to a considerable extent. Although in his opinion he made passing mention of the inconsistent testimony of the notary and of the conflicting statements that he signed, the Surrogate made no finding thereon, but held, ‘ ‘ that the presumption of due and proper execution of the waiver, as evidenced by the certificate of acknowledgment, has not been rebutted by clear and convincing *566proof (Albany County Sav. Bank v. McCarty, 149 N. Y. 71)
We take it from the foregoing that the Surrogate held that a presumption of regularity or validity is created by the receipt in evidence of an acknowledged waiver. We cannot accept such a determination, nor do we so interpret the case upon which the Surrogate relied. The Albany County Sav. Bank case holds that the certificate of acknowledgment is prima facie proof, which, if standing alone, would be sufficient. The court there suggested that it should not be overthrown upon evidence of a doubtful character, but only on proof so “ clear and convincing ” as to amount to a moral certainty. That case should be used as authority only within its frame of reference. The acknowledgment was in connection with a bond and mortgage. There is a marked distinction between the acknowledgment of deeds and mortgages which are instruments used in commerce and a waiver of the personal right of election. Moreover, that case was decided in 1896, several decades before the Decedent Estate Law granted the right of election to a surviving spouse, the intent and purpose of which will be hereinafter discussed. In Rock v. Rock (195 App. Div. 59) the Appellate Division, Third Department, in an analysis of the general rule enunciated by the Court of Appeals in Albany County Sav. Bank v. McCarty (supra), concluded that: ‘ ‘ when the judgment of the Court of Appeals is finally reached, it is said in effect, and in many other cases in so many words, that * * * a certificate of the notary [is] prima facie proof only, and as such takes the case to the jury ” (p. 63).
The Civil Practice Act (§ 384, subd. 3) clearly indicates that “ [t]he certificate of the acknowledgment * * * is not conclusive ; and it may be rebutted, and the effect thereof may be contested, by a party affected thereby ’ ’.
To revert to the testimony with respect to Miss Schoenfeld, if it is the fact that she presented the waiver to the notary for acknowledgment, the waiver would be invalid. While an instrument that requires acknowledgment need not be executed at the same time as it is acknowledged, it is not “ duly acknowledged ” unless in addition to the signature, there is the oral acknowledgment by the person executing it to the official who certifies that fact by a written certificate. (See Rogers v. Pell, 154 N. Y. 518, 529; Matter of Passero & Sons, 237 App. Div. 638, 639.)
In enacting the provisions of section 18 of the Decedent Estate Law, the Legislature (L. 1929, ch. 229, § 20) created the right of election of a surviving spouse. It expressly provided that ‘ ‘ such provisions shall be liberally construed ” for the designed purpose “to increase the share of a surviving spouse in the estate *567of a deceased spouse * * * by an election against the terms of the will * * * thus enlarging property rights of such surviving spouse ". (Matter of Byrnes, 260 N. Y. 465.) To fulfill the declared intent and purpose of extending the enlarged right given a surviving spouse, the right of election may be waived only by strict conformity with the provisions of the Decedent Estate Law (§ 18, subd. 9; Matter of McGlone, 284 N. Y. 527; Matter of Colaci, 288 N. Y. 158, 163).
In any event, however, the burden of establishing the waiver is upon the respondents. (Matter of Colaci, supra, p. 162.) Even assuming arguendo that we treat the acknowledgment as a presumption, it disappears when evidence to refute it is produced. (See People ex rel. Wallington Apts. v. Miller, 288 N. Y. 31, 33; Matter of Magna v. Hegeman Harris Co., 258 N. Y. 82, 84.) Moreover,‘‘ [i]n civil cases a plaintiff is never required to prove his case by more than a preponderance of evidence. This is as true of actions against an executor, founded on claims put forward for the first time after the death of the testator, as it is of other actions ”. (McKeon v. Van Slyck, 223 N. Y. 392, 397; see, also, Matter of Presender, 285 App. Div. 109.) Thus, in the absence of a presumption that the waiver was duly acknowledged, the estate may well have failed to carry the burden placed upon it of establishing the validity of the waiver by a fair preponderance of the credible evidence.
As we view it, an evaluation of the testimony of the notary is vital for a determination as to the validity of the waiver. While this court has the authority to make findings with respect thereto, we believe that an examination of this witness by a trier of the facts will more accurately assess his credibility.
We therefore hold that the decree should be reversed and the matter remanded to the Surrogate for a new trial of the issues.
Peck, P. J., and Valentb, J., concur with Breitel, J.; Frank, J., dissents and votes to reverse in opinion, in which Cox, J., concurs.
Decree affirmed, with costs to the respondents against appellants.
The officer taking an acknowledgment is competent to impeach his own certificate. (Borst v. Empie, 5 N. Y. 33, 37; Spraker v. Spraker, 152 Misc. 867; Rock v. Rock, 195 App. Div. 59.)