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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 232 We are entirely satisfied with the opinion of the referee in this case, and think it unnecessary to ourselves add anything further than to notice very briefly one or two criticisms that were made upon it by counsel for the appellant in the course of the argument here. It is said the vital point in the case is whether the final writing (contained in the foregoing ninth subdivision of the statement of facts) was executed as a will or codicil, and this point the counsel for the appellant says was wholly ignored by the referee.
On the contrary, we think he not only did not ignore it, but that he decided it in a way which was opposed to the claim that the final writing ever was executed either as a will or codicil. He distinctly said that the final writing certifies to the formalities which attended the identification of the will which was in the envelope, after its execution and its deposit in a public office, and to nothing more. And we are of opinion that in this respect the learned referee was clearly right. There is no occasion to here specify and minutely examine how the final writing was executed, for it is plainly stated, as is also the purpose thereof, in the writing itself.
There is nothing in that paper that shows that it was executed as a will or as a codicil, or that it was in fact any part or parcel of the paper wrapped in the envelope and declared by the testatrix to be her will. I think the evidence here shows beyond all controversy that the testatrix supposed she had executed her will and that it was wrapped up in an envelope, and that everything done subsequently was done in the course of an attempt to formally and, so to speak, officially identify such paper and to deposit it in the hands of the public notary, as the will of the testatrix. I am unable to see how any other construction can be placed upon the plain *Page 235 language of the ninth subdivision of the statement alluded to. The counsel for the appellant admits that if this final writing were not executed as a will or codicil, then Mrs. Lehritter died intestate and the judgment must be affirmed.
Even though the statute does not prescribe what shall be the terms in which a publication of a will shall be made or what shall be the terms of a request made to the witnesses to become such, yet there must be an acknowledgment or publication and there must be a request, and where the only evidence of either is contained in written papers submitted to the court, if those papers do not show a publication or request, the evidence is insufficient to prove the alleged will.
Regarding the paper in the envelope as a separate document, confessedly there is not a particle of evidence of a proper subscription before witnesses. On the contrary, the evidence shows a non-compliance with the requisites of the statute in such case.
Viewing the papers outside the document in the envelope, and it is plain they cannot be regarded as a will or as a part thereof, because they conclusively appear to be something else.
It may be assumed that the testatrix appeared before the notary for the purpose of making her will and depositing it with him. The written evidence submitted to the court shows without contradiction that she signed a paper as her will and deposited it in the envelope, and everything done thereafter by her or the notary, so far as the writing shows, was done for the purpose of identification alone.
It is said that an unattested instrument of the character of a testamentary disposition may be so identified by a subsequent will or codicil as to be regarded as incorporated with and forming a part of the will or codicil. (Brown v. Clark,77 N.Y. 369, 378.) Hence, the claim that the paper in the envelope is thus incorporated with and does form a part of the final writing, and all the papers are to be construed as forming the will of the testatrix. The claim might be well founded if the final writing had been executed as a will. In the case of Brown v. Clark (supra), the testatrix, while an *Page 236 unmarried woman, had duly made her will. She subsequently married and thereby revoked it. After that time she duly executed a codicil to such will, in which she referred to it, and in the body of the codicil she declared her intention to thereby re-publish, re-affirm and adopt the will, as modified by the codicil, as her present will, in the same manner as if then executed by her, and then followed this clause: "Which codicil, in connection with and amendment of my will, I now publish and declare together as constituting my last will and testament." The codicil was duly executed with all the requirements of the law. This court held that the execution of the codicil was a re-publication of the will, and it and the codicil were to be considered together as the will of the testatrix. The evidence in that case left no room for doubt (the court said) that the main purpose of the testatrix in making the codicil was to re-establish the will, which had been revoked by her marriage.
No such fact appears here, and on the contrary it does appear that there was an absence of any testamentary intent as to the final paper when the signatures were placed upon it.
It may be here admitted, as claimed by appellant's counsel, that an invalid subscription is equivalent to no subscription, and the paper in the envelope described as a will may, therefore, be regarded as unsigned, and still we cannot see that the final writing can ever become a part of the will, or that the signature of Mrs. Lehritter to the final writing can ever be regarded as her signature at the end of her will. Nor can we find any evidence of a request on her part to any witness to become such. It is perfectly evident, from its contents, that the final writing is not, and was not intended to be, any part of her will or codicil, and her signature was not placed at the end of the writing for the purpose or with the intent of thereby subscribing such an instrument. In the final writing the testatrix declares orally that she has just handed the notary her last will, and if it should not be legal she wishes to have it carried into effect as a codicil, gift causa mortis or in any legal way possible. This does not make the final writing a *Page 237 will or codicil. It is but one of the formalities observed by the parties in the course of identifying the document contained in the envelope as the will of the testatrix, and to call the final writing itself a codicil and a re-publication of the will would be to make of the means for identifying another paper that very paper itself.
In any view that we can take of the subject, we think the order of the General Term was right, and that it should be affirmed, with costs.
All concur.
Order affirmed.