There .are some statements 'in. the testimony o£ the draftsman of the propounded paper, who is also one of the witnesses to its execution, which, if taken by themselves and accepted as true, would justify a finding that the decedent declared to the witness Wolberg that the paper wais his will. Other statements made by him would seem to lead to a different result. Thus, when aisked by counsel for the proponent as to whether anything wias said by the decedent to- Wolberg about the paper, he said: “ I cannot remember that he told him what it was. I merely heard him say that he requested him to sign.” This witness was examined through an interpreter.
Mr. Wolberg denied having heard any declaration to the effect that the paper he was called upon to. witness was a will, and he asserted that he signed the paper as a witness., at the request o-f the decedent and without knowledge of its character, other than what could be gained from .a description of it as a note or memorandum. He testified in English and appeared to me to be .an educated man of unusual intelligence, who. was trying to tell the truth. If the apparently inconsistent statements of the draftsman can be- reconciled in favor of the proponent’s theory, there is a clear conflict between the two- subscribing witnesses.
The nurse called by the proponent, who was present during all the brief period while Wolberg was in the sick room of the decedent for the purposes of the execution of the paper, testified that the decedent told Wolberg “ to sign this paper;” and *8again, “ He said to Enoch he should sign Ms name.” According to this witness the character of the paper as a will was not spoken of by the decedent to Wolberg, or by the draftsman in the presence of the decedent and Hr. Wolberg, at any time prior to its complete execution, thus corroborating the story of Mr. Wolberg and contradicting the portions of the testimony of the draftsman relied upon by the proponent. He -also testified that, -after Wolberg had signed, and while the parties were still together, the draftsman said- to Wolberg: “ That is- a will.” It is not claimed that the decedent, either by word or gesture, manifested any concurrence in this declaration, or gave any sign that be had heard it. That ¡any such declaration was miade -i-s in contradiction- to both' of the subscribing witnesses, who agree that nothing was -said or done ¡after the piaper had been signed by Wolberg, when he immediately left the room. It is hard to believe the testimony of -the draftsman that he made the declarations to Wolberg wM-ch he says he did, -at times prior to the execution of the paper, ¡and also to believe that it occurred to Mm to explain- to Wolberg that the paper was -a will, after it had been signed by Wolberg, -and when such explanation would seem to have been unnecessary.
It is not an unusual thing for one or more of the subscribing. witnesses to iai will to deny the observance of some of the prescribed formalities of execution, and I am referred to the numerous cases where wills have been admitted to probate, notwithstanding such denials. In each case the question is one of fact. In many of- them the proponent was ¡aided by circumstances not present here, such as the fact that the witnesses had signed an -attestation -clause reciting the details of due execution, or the execution of the paper had been -superintended by a competent lawyer, -or by some person -shown to be familiar with' the requirements of the law. In tMs case there was no attestation danse, no lawyer was present or bad ¡anything to do with the matter, and none of the persons' present -are shown to have *9had any knowledge of the law governing the execution of a will, further than to understand that two witnesses were necessary. The paper was prepared by a person unable to speak our language and without -any special knowledge of the law of this State. It was not written in the English language, but in Hebrew characters -and in classical Hebrew. It was written upon two isheets of paper, which were not in any way attached or fastened to each other. Mr. "Wiolberg says that he -only saiw the sheet which bears his signature; that he Was unable to read it, -and that he did not read it. He was lan employee of the decedent, accustomed to obey his instructions, and it is not remarkable that he should certify as a witness to the execution of -a paper duly signed by his employer without inquiry as to its character.
It is quite dear that it was desired to keep it secret that a will was being executed, -and it would seem that the draftsman and the decedent did not know how important it was that the subscribing witnesses should both know just what they were doing.
The general legal principle, that the burden of proving every necessary fact rests upon the party alleging it, is fortified as to proceedings to prove wills by the statute requiring that the surrogate must be satisfied as to due execution. Code Civ. Pro., § 26-22. In this ease I <am not so satisfied', and, on the contrary, I am of opinion that the weight of evidence requires me to find as a fact that the decedent -did not, -at any time, declare to or in the presence of the witness Wolberg that the propounded paper was his will. Probate will, therefore, be refused. Costs will be awarded to both parties, payable out of the estate. Tax costs and settle findings and decree on notice.
Probate denied. Costs to both parties, payable out of estate-
*10NOTE ON PROOF OF EXECUTION OF WILL.
GENERALLY—PROBATE GRANTED.
Where one of the witnesses to a will drew it up in the presence of the decedent, and it was spoken of, by that witness, in the hearing and the presence of the other witness, and in the presence of the decedent, immediately before its execution and attestation, as her will, and she signed it with her mark, and upon proceedings for probate, the witness who drew the will was dead, but the other witness testified that he signed the will as a witness before the testatrix made her mark, held that the will must be admitted to probate. Matter of Kane, 2 Connolly, 409.
Under section 2620 Code of Civil Procedure, as amended by the Act of 1888, chapter 508, a will may be admitted to probate, without taking the testimony of an absentee subscribing witness, unless it be demanded by a party to the proceeding. Matter of Clark, 75 Hun, 471.
A will may be proved by the evidence other than the testimony of the subscribing witness. Matter of Johnson, 7 Misc. 220.
It is not necessary that both the subscribing witnesses should state all the material facts required by the statute. Matter of Hardenburg, 85 Hun, 580.
Where the testimony of subscribing witnesses to a will is conflicting and uncorroborated, that which tends to sustain the will will be adopted. In re Jones’ Will, 85 N. Y. Supp. 294.
GENERALLY—PROBATE DENIED.
A will signed by the testator’s mark, may not be admitted to probate, upon the testimony of a single subscribing witness, proving the handwriting of the deceased subscribing witness, but who did not see the mark made. Matter of Porter, 1 Misc. 262.
A will should be refused probate where the proof is not clear as to its formal execution and attestation. Matter of De Castro, 1 Mills. Surr. 588.
Persons who saw certain instruments executed, but did not then subscribe them as witnesses are not in contemplation of law subscribing witnesses to them, and their subsequent proof of the papers in the manner required of a subscribing witness to a deed, and their subsequently afiSxing their signatures to the papers cannot, without request of the parties, make the papers admissible in evidence as having been duly proved by subscribing witnesses. Matter of Clute, 3 Mills Surr. 8.
*11BURDEN OF PROOF.
Upon an application for the prohate of a will the burden is upon the proponent to prove that it was executed in the manner required by the statute. Matter of Hurlburt, 48 App. Div. 91.
Where the proponent did not meet the burden of proving that the instrument offered for probate as a will, was executed or attested in the manner prescribed by law, the instrument should not be admitted to probate. Matter of De Castro, 32 Misc. 193.
The question whether a will was properly executed is one of fact to be determined by the surrogate; upon such an issue the proponent has the affirmative and must convince the trial court by satisfactory proof that every statutory requirement has been complied with. Matter of Elmer, 88 Hun, 290.
ATTORNEY AS WITNESS.
An attorney cannot testify to facts attending the execution of a will, drawn by him for his client, unless the client waives the privilege, but where he is the subscribing witness, the privilege is waived, and the client cannot limit the waiver to facts accruing on the execution of the will, and maintain the privilege with respect to instructions given for its preparation. Matter of Lamb, 21 Civ. Pro. 324.
Upon the probate of a will, the testator’s attorney, who was a subscribing witness, is competent to prove its preparation and execution; the testator by asking his attorney to become a subscribing witness, waives the pledge of secrecy, and dissolves the confidential relation existing between them. Matter of Gagan, 47 St. Rep. 44.
In a proceeding to probate' a will, while it is error to permit the attorney who drew the will, and as counsel for the testator, to testify as to personal transactions between himself and the deceased, of a professional character, other than the circumstances immediately surrounding the execution of the will, of which he was a witness, yet the admission of such testimony is no ground for reversal, where its exclusion could not have affected the conclusion. Matter of Bedlow, 67 Hun, 408.
Unless an attorney is a subscribing witness to a will he cannot testify as to its due execution. Matter of Seers, 2 Mills Surr. 32.
PRESUMPTIONS.
Where it appears that a will was signed by the testator and that the attestation clause, expressing all the elements requisite to be observed in the execution of a will, was subscribed by the witnesses, the presumption will be indulged that the provisions of the statute were complied with. Matter of Brissell, 16 App. Div. 137.
*12In a probate proceeding, where the attesting witnesses contradict each other as to the formalities of execution, a failure of the proponents to call one of their number who was present, to corroborate their witness, discredits such witness, and strengthens the presumption that the testimony of the other witness was true. Matter of Bernsee, 45 St. Rep. 11, 63 Hun, 628.
There is no presumption that blank spaces left for the insertion of names or amounts in a will were filled in after execution. Matter of Tighe, 2 Gibbons Surr. 550.
When supported by other proof, the attestation clause becomes very important, but the formal proof may not be presumed from the attestation clause alone and against positive credible testimony. Matter of Delperat, 1 Mills Surr. 75.
WEIGHT AND SUFFICIENCY.
A failure of recollection on the part of the subscribing witnesses will not defeat probate, if the surrounding circumstances, taken together with the attestation clause, satisfactorily establishes due execution. Matter of Schweigert, 17 Misc. 186.
A will may be properly executed by a mark, and where one of the witnesses is dead, his handwriting may be proved, and thé testimony of the surviving witness, who saw the mark made, will be sufficient to prove the due execution of the instrument. Matter of Murphy, 15 Misc. 208.
It is competent to show by cross-examination of a subscribing witness» to a will that he has received, or been promised, a reward for giving testimony, and if this is denied by the witness, admission or declarations to that effect, made by the witness out of court, may be proved. Matter of Snelling, 136 N. Y. 515.
Where by reason of testator’s infirmities, his impaired capacity or of peculiar circumstances attending the transaction, the usual inference cannot he drawn from the mere formal execution of the will, additional proof, direct or inferential, is necessary, showing that he knew the contents of the will and approved thereof. Matter of Henry, 2 Gibbons Surr. 202.
The attestation is some proof of the due execution of the will, and where there is, in addition, evidence that such clause was read aloud in the hearing of testator and witnesses, with the silent assent of all concerned, this is sufficient to establish the facts recited therein. A request to sign as witness, made by the person superintending the execution of the will, in the hearing of the testator, and with his silent permission and approval, is sufficient. Matter of Nelson, 141 N. Y. 152.
Upon the probate of the will, the testimony of a subscribing witness who is also a beneficiary, is competent under section 2544 of the Code of Civil Procedure; the fact that he resides without the State does not relieve *13him from examination as an attesting witness, upon the demand of the contestants. Matter of Beck, 6 App. Div. 211.
Where a subscribing witness testifies that he thinks that he saw the signature of the testator at the time he witnessed the will, but is not absolutely certain, his testimony taken in connection with proof of the signatures to the will, and testimony tending to establish all the facts required by the statute, for the due execution of the will, presents a proper case for the consideration of the jury. Matter of De Haas, 19 App. Div. 266.
In an action in the Supreme Court upon a single issue, as to the ownership of real estate, the due execution of a will can be prima facie established by the testimony of a single witness; a devisee of real estate under a will, not admitted to probate, is not required to establish his title under the proceedings for probate, but in an action in the Supreme Court, wherein a single witness is produced, and without any explanation of a failure to produce another subscribing witness, he may establish the will. Upton v. Bernstein, 76 Hun, 516.
Where the testator signs by a mark, and one of the subscribing witnesses is dead, the making of such a mark may be proved by the other subscribing witness; it is not necessary that the mark be proved by another and additional witness. Matter of Wilson, 76 Hun, 1.
Where one of the subscribing witnesses cannot be produced, and no one else was present, the testimony of the other, if his character be unimpeached, and supported by the apparent good faith of the transaction, and a full attestation clause, is sufficient to prove the making of his mark by the testator. Matter of Hyland, 58 St. Rep. 798.
In a proceeding for the probate of a will, testimony of subscribing witnesses to a subsequent will, not produced, but alleged to revoke the will offered, to the effect that the testator stated to them that the will which they were attesting revoked his former will, is not sufficient to support a finding that the will offered for probate was revoked by the one attested by the witnesses. Matter of Dake, 75 App. Div. 403.
A decedent, whose only heirs at law and next of kin were a brother and two nephews, executed a will after she had been judicially declared to be a lunatic, and while she was confined to a private asylum for the insane, by which, after making bequests amounting to about $12,000, including a bequest of $500 to each of the nephews, she left the remainder of her estate, which amounted in all to about $28,000, to her brother, whom she appointed executor. The Appellate Division, upon an appeal from a surrogate’s decree admitting the will to probate, considered that the evidence offered to establish that the will
Proof that after a will had been read to a testatrix, she in the presence of both the subscribing witnesses, said that “ it was all right,” is sufficient evidence of publication. Matter of Buel, 44 App. Div. 4.
*14Where a witness to a will swears that the last page of the will was spread out before him; that he thinks it was signed, and that the testator declared it to be his last will and testament, and asked him and the other witnesses to sign it, and he should say from memory that the name was there, there is sufficient evidence for the jury to find that all the facts required by the statute for the due execution of the will had been established. Matter of De Haas, 19 App. Div. 260.
Much effect will be given to the attestation clause of a will which purports to say that all the essentials to the proper execution of the will were observed, where one subscribing witness is dead, and the other, after a lapse of sixteen years, fails to remember the circumstances attending the execution of the will. Matter of Brissell, 16 App. Div. 137.
Where neither of two subscribing witnesses of a will, the third being dead, could state positively that the testator’s signature was on the will when they signed, and there was no proof as to the testator’s handwriting, held, the will should not have been admitted to probate. Matter of De Haas, 9 App. Div. 561.
A will executed fifteen years before it was offered for probate had a full and complete attestation clause at the end thereof, and the subscribing witnesses testified that they remembered the occurence of the execution of the will, saw the testatrix sign, signed as witnesses in her presence, and' the presence of each other; that the signatures were theirs, but they did not remember that the testatrix made declaration that the instrument was her will, nor that she requested them to sign as witnesses, held, that the will was entitled to probate. Matter of Sears, 33 Misc. 141.
Where the subscribing witnesses to a will testified that the testatrix did not sign in their presence nor exhibit her signature to them, and a legatee, who released his legacy, testifies to the due execution of the will, the court may credit the testimony of the latter witness and admit the will to probate. Matter of Fitzgerald, 33 Misc. 325.
A witness called to attest the execution of a will is prone not to have the details of the transaction indelibly impressed on his mind. The testamentary disposition of property by a competent testator should not be defeated for the failure of recollection by a subscribing witness where it is clear that the essentials of the statute have been substantially met. Matter of Dake, 98 App. Div. 629.
A will dated June 4th, 1902, was offered for probate by the lawyer who drew it, and the contestants offered in evidence an affidavit dated July 23rd, 1902, made by the testatrix, referring to the attorney as follows “ Deponent does not know the plaintiff herein and never saw him. She did not direct him to draw a will. He did not witness any will for her. She did not have any. transactions of any kind with the plaintiff.” Held, that this affidavit did not establish that the testatrix did not make the will in question. Matter of Lawlor, 86 App. Div. 527.
*15Where witnesses fail to recollect the circumstances under which the will was executed, the attestation clause may be referred to in support of the probability of due execution, but as against the distinct recollections of both witnesses to the will, that the will was not published as required by law, the attestation clause is not sufficient to prove the due execution of the will. Matter of Nash, 76 App. Div. 212.
Where one of the subscribing witnesses is dead and the other had disappeared for six or seven years, the will may be admitted to probate on proof of the handwriting of the testator and the subscribing witnesses, and of other circumstances, which, in the judgment of the surrogate, would be sufficient to prove the will on the trial of an action. Matter of Oliver, 13 Misc. 466.
Where a will, on its face, is in good form and the attestation clause is complete, the testimony of the scrivener, and one of the witnesss to the will, is sufficient to prove that the testatrix signed before the attestation clause was signed, although contradicted by other witnesses. Matter of Menge, 13 Misc. 553.
Where a will was dated eighteen years before the testator’s death, and one attesting witness was dead and the other did not remember the circumstances, it was held that a finding that the will was duly executed, was sustained by the evidence, where the attestation clause recited all the requirements of the statute. Matter of Brissel, 16 App. Div. 137.