In proceeding to revoke letters of administration and to cause to be admitted to probate an alleged nuncupative will, evidence was insufficient to establish the making of will by deceased. In re McDonald's Estate, 1942, 179 Misc. 284, 37 N. Y. S. 2d 945.

In proceeding to probate soldier's nuncupative will, evidence was sufficient to establish declaration of soldier's intent that if anything happened to him he wanted everything to go to his fiancee. In re Dumont's Estate, 1939, 170 Misc. 100, 9 N. Y. S. 2d 606. affirmed 257 App. Div. 952, 13 N. Y. S. 2d 289, affirmed 282 N. Y. 606, 25 N. E. 2d 388. Nuncupative will of soldier on active service admitted to probate as to personal property only on proof of execution of oral statement and of testator's soundness of mind by his comrades, decedent's letters from camp and from overseas to his family expressing his solemn appreciation of the uncertainties of life and confirming his testamentary expressions. The fact that the declarations as to his will were made separately to various witnesses who testified did not violate this section. Matter of Miller, 1929, 134 Misc. 671, 236 N. Y. S. 529.

Portions of two letters written by a soldier while in active military service of United States in World War, and relating to distribution of his personal property, will be admitted to probate as his last will, where proof shows testamentary capacity, apprehension of death, and the corroboration by two witnesses required under Code of Civil Procedure, § 2611, now Surrogate's Court Act, § 141. Matter of Hickey, 1920, 113 Misc. 261, 184 N. Y. S. 399.

Testimony of two witnesses that soldier had stated desire that sister have his property was sufficient to support finding that soldier had executed nuncupative will notwithstanding soldier at time had in mind only insurance policies, where policies constituted his whole estate. In re Zaiac's Will, 1938, 279 N. Y. 545, 18 N. E. 2d 848.

12. Gift causa mortis

A voyage is not a type of peril which constitutes a permissible basis for substituting gift causa mortis for this article. In re Anderson's Estate, 1943, 180 Misc. 827, 46 N. Y. S. 2d 128.

Where there was no showing that salary or bonus was due deceased seaman before he sailed on ship which was subsequently torpedoed, such salary and bonus was not subject to a gift causa mortis made before sailing. Id.

Where seaman immediately before sailing was in good health and in no apprehension of impending peril, there was no basis for a gift causa mortis, notwithstanding that voyage resulted in seaman's death. Id.

"Gifts causa mortis" are to take effect only in case of donor's death and are revocable during his life, and hence are essentially testamentary, so that the same considerations of caution which prompted legislation relative to requisite formalities of execution and publication of a valid will require insistence on all the requisites which the common law prescribes for such gifts, in order to establish their validity. In re Cardwell's Estate, 1943, 180 Misc. 854, 43 N. Y. S. 2d 773, reversed on other grounds 268 App. Div. 514, 52 N. Y. S. 2d 69, affirmed 295 N. Y. 916, 68 N. E. 2d 29.

"Unwritten or nuncupative wills are valid only when made by soldiers engaged in military service, or mariners at sea. 2 R. S., 60, § 22. Gifts, however, in contemplation of death, may take effect when perfected by an actual delivery during the life of the donor." Williams v. Fitch, 1859, 18 N. Y. 546.

DECEDENTS ESTATE LAW § 16. AMENDMENT (MCKINNEYS CONSOLIDATED LAWS, 1956, POCKET PT)

§ 16. Nuncupative or holographic wills of persons in actual military or naval service or mariners.

3. Purpose

Relaxation of formal requirements of a will in case of a holographic instrument executed by a soldier while in actual military service service is invoked by the single factor of soldier's status in service at time of writing instrument. In re McAllister's Will, 1955, 207 Misc. 884, 141 N. Y. S. 2d 361.

11. Proof, sufficiency of

Letter from soldier to his sister showed animo testandi. In re McAllister's Will, 1955, 207 Misc. 884, 141 N. Y. S. 2d 361.

Under subdivision 2 of this section relating to holographic wills made by soldiers while in actual military service, letter which was written by soldier to his sister and which showed animo testandi constituted a testamentary instrument, irrespective whether soldier had had any assets to dispose of or effectively disposed of them by instrument, or had had an opportunity to execute a former will, or had been on eve of embarkation. Id.

N. Y. CLEVENGERS PRACTICE MANUAL 1948 SURROGATE COURT ACT § 141 § 141. Witnesses to be examined; proof required.-Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify. 'Where the will is on file in a court or public office, of another state of the United States, or in a court, or public office, of a foreign country, and under the laws of such state or country, the will cannot be removed, the surrogate may issue a commission to take the testimony in the matter and may admit the will to probate upon satisfactory proof of its provisions, that it was in existence at the time of the death of the testator and that it was duly executed; or where the will is brought to the surrogate's court by a representative of a public offices of a state or country, the surrogate may take the testimony in the matter and permit said representative to return the will to said state or country, and the testimony so taken and the decree admitting a will upon such testimony shall have the same

force and effect as though the will had been filed or had remained in the surrogate's office. Before an oral" nuncupative will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. "Before a holographic will made by a soldier or sailor while in actual military or naval service, or by a mariner while at sea, is admitted to probate, the handwriting of the testator must be proved." The proofs must be reduced to writing. Any party to the proceeding, before or after filing objections to the probate of said will," may request the oral examination of the subscribing witnesses thereto' and may examine any or all of the subscribing witnesses and any other witness produced by the proponent before the surrogate." (Am. L. 1922 ch 653, in effect April 13; L. 1925 ch. 575, in effect Sept. 1; L. 1932 ch. 486, in effect Sept. 1; L. 1935 ch. 380, in effect Sept. 1; L. 1942 ch. 688, in effect May 6.)

Derivation: CCP § 2611, with change; as revised by L. 1914 ch. 443 from CCP § 2618; as am. by L. 1913 ch. 412; from L. 1837 ch. 460 § 10, 11. Amendments of section:

L. 1922 ch. 653 added 2d sentence at fig. 1s, except at fig. 2s, 3 and 4.

L. 1925 ch. 575 changed "officer" to "office" at fig. 3, and added matter at fig. 5s (except at fig. 6s) and 7 and "without first filing objections to the probate of such will" at fig. 9, deleted by L. 1932 ch. 486.

L. 1932 ch. 486 changed "of" to "or" at fig. 4, added "or after" at fig. 6s, changed "such" to matter at fig. 8s and deleted matter at fig. 9 as added by L. 1925 ch. 575. L. 1935 ch. 380 added matter at fig. 2s.

L. 1942 ch. 688 added matter at fig. 10s and 11s; and deleted at fig. 10s "a".
Cross-references:

Execution and proof of wills: Dec. Est. L. §§ 10-48.
Examinations before trial: CPA §§ 288 et seq.

SYNOPSIS OF ANNOTATIONS

Witnesses Who Must Be Examined

Witnesses Who May Be Examined

Examination of Witnesses

Foreign Wills; Filed Elsewhere

Nuncupative Will; Sufficiency

Declaration or Publication; Sufficiency

Signatures; Sufficiency of Proof

Construction:

Liberal construction: to the end that interested parties can have full examination of subscribing witnesses and inspection of prior wills, which it is claimed were practically like the will in question. Re Beeman, 221 AD 129, 222 NYS 751; Re Hawley, 133 Mis 572, 233 NYS 321.

Distinguished form: examination before trial, under CPA § 288. Re Feldstein, 133 Mis 255, 232 NYS 327; Baker's Will. 160 Mis 862, 290 NYS 925.

SCA § 141 as distinguished from 143, relating to manner of proof of the due initial execution of the document itself. Herle Will, 169 Mis 197, 7 NYS 2d 189. Purpose of § 141 is to enable objectors to discover facts before determining whether to file objections to probate. Re O'Melia, 213 AD 387, 210 NYS 615.

WITNESSES WHO MUST BE EXAMINED

Absentee witeness: his testimony need not be taken unless demanded under CCP § 2620, as amended by L. 1888 ch. 508. Re Clark, 75 Hun 471, 27 NYS 681.

Two subscribing witnesses: at least must be examined. Auburn Theo Sem v. Calhoun, 25 NY 422 rev. 38 Barb 148; Huber, 181 AD 635, 168 NYS 890; Sizer, 129 AD 7, 113 NYS 210 aff. 195 NY 528; DeHaas, 9 AD 561, 41 NYS 696; Van Geison, 47 Hun 5; Graber, 2 Dem 216; Hesdra, 17 StR 612 aff. 119 NY 615; Masters, 1 CivP 459; Cann's Est, 136 Mis 428, 240 NYS 840; Upton v. Bernstein, 76 Hun 516, 27 NYS 1078.

Each witness need not testify that all statutory requirements have been complied with. Graham, 9 NYS 122; Re Hardenburg, 85 Hun 580, 33 NYS 150.

Inability to find one subscribing witness justifies dispensing order under § 142. Walters' Est, 172 Mis 207, 15 NYS 2d 8.

Legacy to subscribing witness: does not release him testifying. Loder v. Whelpley, 111 NY 239, 18 NE 874.

Three witnesses: rule that legatee who is also subscribing witness loses his legacy but must testify, is relaxed where there are three subscribing witnesses and the will is proved by the testimony of the other two. Caw v. Robertson, 5 NY 125. Resident subscribing witness who was not under disability must be examined. Hohn's Est., 180 Mis 384, 40 NYS 2d 237.

Re

Third subscribing witness: his testimony is not essential unless compelled to testify by action of contesting parties. Re Owen, 48 AD 507, 62 NYS 919.

WITNESSES WHO MAY BE EXAMINED

Executor may be examined. Re Huestis, 23 WkD 224.

Interested by reason of being party to proceeding and because entitled to commissions: examinable. Re Wilson, 103 NY 374, 8 NE 731; Re Folts, 71 Hun 492, 24 NYS 1052.

Legatee. who has released his interest; examinable. Loder, 111 NY 239.

Renouncing legacy; examinable. Re Barrien, 12 NYS 585 aff. 5 NYS 37. Non-subscribing witnesses: examinable if subscribing witnesses fail to prove will. Butler v. Benson, 1 Barb 526; Whitefield, 19 WkD 386.

Absence of incompetence: testimony of witnesses other than subscribing witnesses may be added where the subscribing witnesses are dead, nonresident or insane. v. Crosby, 3 Redf 74.

Reeve

Re

Called by proponent: right to examine in probate proceeding extends to subscribing witnesses and other persons called by the proponent or whose testimony is offered. Briggs, 180 AD 752, 168 NYS 597 aff. 223 NY 677, 119 NE 1032; Felenstein's Est, 144 Mis 345, 258 NYS 966.

Person attending court: and verifying petition; not examinable. Re Briggs, 180 AD 843. 168 NYS 382. Physician attending testator: who was also subscribing witness; examinable. Re Freeman. 46 Hun 458.

Proponent, by contestant: not examinable on issue of testamentary capacity. Re Hodgman. 113 Mis 215, 184 NYS 185. Subscribing witnesses: any or all examinable. Felenstein's Est, 144 Mis 345, 258 NYS

966.

CPA § 347 held inapplicable to examination under SCA § 141. Re George's Est, 175 Mis 804, 25 NYS 2d 333.

Nonresident: subscribing witness may be examined altho nonresident. AD 211, 39 NYS 810 aff. 154 NY 750.

Re Beck, 6

EXAMINATION OF WITNESSES

Commission to take testimony: testimony of subscribing witnesses may be taken by commission where out of the jurisdiction. Re Kelly, 134 Mis 399, 235 NYS 683.

Open commission: contestant may demand an open commission to take proof of witnesses without the state. Re McGuire, 128 Mis 679, 220 NYS 773. Competency of witnesses: see CPA §§ 347-354.

Executor: is not rendered incompetent as a subscribing witness under CPA § 347, nor by reason of his right to commissions. Re Wilson, 103 NY 374, 8 NE 731.

Nonresidence: subscribing witness is not disqualified by nonresidence. Re Beck, 6 AD 211, 39 NYS 810 aff. 154 NY 750, 49 NE 1093.

Cross-examination of a subscribing witness is proper to show the witness was promised a reward for testifying. Re Snelling, 136 NY 515, 32 NE 1006.

Will contest: there is no limitation on the right to cross-examine. Re Briggs, 180 AD 752, 168 NYS 597 rev. 101 Mis 191, 167 NYS 632 mod. 223 NY 677, 119 NE 1032. Mode of examination: discretionary:

Order of proof: Rollwagen v. Rollwagen, 3 Hun 121 aff. 63 NY 504; Cadmus v. Oakley, 2 Dem 298; Hoyt v. Jackson, 2 Dem 443.

Nature and scope of examination: examination contemplated is such a particular inquiry into the facts and circumstances surrounding the execution as is calculated to satisfy the surrogate of the genuineness of the will and the validity of its execution. Re Huber, 181 AD 635, 168 NYS 890.

CPA 288: SCA § 141 has no application to an examination before trial under CPA 288; SCA § 141 being applicable before issues are raised by objections. Re Feldstein, 133 Mis 255, 232 NYS 327.

Proof of genuineness of signature of subscribing witness. Re Huber, 181 AD 635, 168 NYS 890.

Use on trial: testimony so taken may be considered at the trial and unless there is a jury the testimony need not be repeated at the trial. Re Kane, 218 AD 841, 218 NYS 677.

Oral examination :

Conduct of oral examination: Cross-examination on matters not developed upon the original examination cannot be had. The section should be liberally construed yet the examination should be confined to what took place at execution of the will and matters of sound mind and freedom from restraint. Re Beeman, 129 Mis 437, 222 NYS 340 rev. og. 221 AD 129, 222 NYS 751.

Production of witnesses:

Demand: where contestants file a demand for the examination of witnesses and no objections to materiality appear on the record, admission of the will to probate without such examination is erroneous. Re Baird, 41 Hun 89.

Duty to produce:

Contestant: seeking their examination must produce them. Re Elias, 128 Mis 122, 217 NYS 847.

Order to produce: subscribing or other witnesses as unnecessary. Re McGovern, 5 Dem 424. Surrogate must cause the witnesses to be examined before him.

Re Lasak, 1 Con

486, 7 NYS 2 aff. 57 Hun 417, 10 NYS 844 aff. 131 NY 624, 30 NE 112. Proof reduced to writing:

Depositions of subscribing witnesses taken in open court before objections filed; sufficient. Downey v. Downey, 16 Hun 481.

Who may orally examine:

Any party to the probate proceeding, before filing objections, may request an oral examination of the subscribing witnesses. Re Cook, 244 NY 63, 154 NE 823 aff. 217 AD 342, 217 NYS 176; Re Woerz, 174 AD 430, 161 NYS 209.

Contestant has the right to examine subscribing witnesses at any time before filing objections. Re Burnstine, 144 Mis 254, 258 NYS 438.

Guardian of an infant interested in the estate may so examine a subscribing witness. Re Woerz, 174 AD 430, 161 NYS 209.

Interested person only: burden is on him to prove his interest. McCabe's Est, 136 Mis 636, 243 NYS 759.

Legatee who is neither heir nor next of kin, and not a "person interested in the event," who could file objections under SCA § 147 is not entitled to examine subscribing witnesses. Re O'Keefe, 135 Mis 394, 238 NYS 372.

Son one claiming to be a son cannot examine subscribing witnesses unless he establishes his claim. Re McCabe, 136 Mis 636, 243 NYS 759.

Witnesses orally examinable:

Any or all subscribing: witnesses may be examined by any party to the proceeding and if the witness prove hostile, recalcitrant or not under control of the proponent, his presence may be enforced by order on behalf of the party seeking the examination. Re Felenstein, 144 Mis 345, 258 NYS 966.

Inspection of prior wills:

FOREIGN WILLS; FILED ELSEWHERE

Next of kin entitled to inspect the prior wills, to ascertain from inspection whether the signature by testatrix had changed between the making of the several wills, and they had a right to inquire fully about the circumstances of making these wills, and to compare them with the will in question, so that by inspection of the documents themselves it could be ascertained whether or not they were alike. Re Beeman, 221 AD 129, 222 NYS 751 rev. 129 Mis 437, 222 NYS 340.

Removal: will filed in California court, whence it could not be removed and so could be physically produced in New York, it can be admitted upon proof by commission as to its validity and due execution. Re Beban, 135 Mis 25, 237 NYS 701.

NUNCUPATIVE WILL; SUFFICIENCY

Declarations of sailor or soldier: in active military service in the A. E. F., that he wanted his parents to have all, admitted to probate where he was of sound mind, memory and understanding and under no restraint; subsequent letters admitted in corroboration. Re Mallery, 127 Mis 784, 217 NYS 489 aff. 220 AD 794, 221 NYS 859, 247 NY 580, 161 NE 190.

Letters of soldier overseas not duly executed not admitted to probate as will. Stein's Will, 119 Mis 9, 194 NYS 909; Re Mallery, 127 Mis 784, 217 NYS 489 aff. 220 AD 794, 221 NYS 859 aff. 247 NY 580, 161 NE 190.

Military service: where the decedent soldier had return from over seas service, noncupative will denied probate on the ground that soldier was not in actual military service, although he was subject to call to actual military service. Dumont Est, 170 Mis 100, 9 NYS 2d 606; Dumont's Will, 257 AD 952, 13 NYS 2d 289.

DECLARATION OR PUBLICATION; SUFFICIENCY

Acknowledgement: of signature and request to sign; insufficient. 322 aff. 26 Barb 252; Ex parte Beers, 2 Bradf 163.

Re Hunt, 3 Bradf

Answer or response: affirmative response to question whether instrument was last will; sufficient. Tunison v. Tunison, 4 Bradf 138; Stein v. Wilzinski, 4 Redf 441; Gumbault, 4 Bradf 226; Re Murphy, 15 Mis 208, 37 NYS 223; Reeve, 3 Redf. 74.

Any form of communication: whereby testator makes known that he intends instrument to take effect as will; sufficient. Coffin v. Coffin, 23 NY 9; Balmforth, 133 AD 521, 117 NYS 1065.

Attestation clause: is sufficient declaration. 6 CivP 128.

Re Bogert, 4 CivP 441, 67 How. 313 aff.

Codicil declaration sufficient. Dack v. Dack, 84 NY 663; cf. Seymour v. Van Wyck, 6 NY 120.

Contradiction: publication may be established though the testimony of the subscribing witnesses is contradictory. Senn v. Calhoun, 25 NY 422; Conselyea v. Walker, 2 Dem 117: Re Bogert, 33 Hun 665; cf. Re Rogers, 52 Mis 412, 103 NYS 423; Re Sarasohn, 47 Mis 535, 95 NYS 975; Re Newton, 1 Tuck 349.

Cross-examination proof lacking on; insufficient. Re Smith, 1 Tuck 227.

Deaf and dumb man: affirmative response to signs made to testator; sufficient. Re Perego, 65 Hun 478, 20 NYS 394.

Exhibit of will: by testator held sufficient declaration. Re Phillips, 98 NY 267. Failure to declare: instrument to be will; insufficient publication. Re Dale, 56 Hun 169, 9 NYS 396 aff. 134 NY 614; McCord, 5 Dem 68; Brown, 4 Sand 10.

Holograph: declaration is necessary where will is holographic. Re Turrell, 28 Mis 106. 59 NYS 780 aff. 47 AD 560, 62 NYS 1053 aff. 166 NY 330, 59 NE 910. Knowledge derived from other source: than declaration of testator; insufficient.

Bagley

v. Blackman, 2 Lans 41; Gilbert, 52 NY 125; Turrell, 28 Mis 106, 59 NYS 780 aff. 166 NY 330.

Language or words:

Express words unnecessary: Re Burk, 2 Redf 239.

Form: no form of words is necessary. Re Hunt, 110 NY 278, 18 NE 106. "Friend's" will testator requested will drawn for "friend" with blanks or names, only attestation clause visible, subscribing witnesses did not see testator sign and no acknowledgment. Re Mackay, 44 Hun 571 aff. 110 NY 611, 18 NE 433.

Indefinite and general expression made definite and descriptive of a will: by words connecting the expression with previous conversation; sufficient. Re Beckett, 103 NY 167.

Memorandum: declaration that instrument was memorandum to be subsequently used in disposing of property; insufficient. Moore, 109 AD 762, 96 NYS 729. One witness only: declaration so made is insufficient. Abbey v. Christy, 49 Barb 276. Absence: publication was established by one subscribing witness, the other being in Texas. Belding v. Leichardt, 56 NY 680.

Paralyzed man: declaration may be made by acts when testator paralyzed. Lane v. Lane, 95 NY 494.

Presence of witnesses: testator's declaration must be made in the presence of both witnesses. Seymour v. Van Wyck, 6 NY 120.

Presumption: declaration or publication will not be presumed. Heath v. Cole, 15 Hun 100.

Purpose of the declaration is to ensure the testator is not under misapprehension as to what the paper is. Auburn Theo Sen v. Calhoun, 25 NY 422.

Reading will aloud: sufficient declaration. Carle v. Underhill, 3 Bradf 101; cf. McKinley v. Lamb, 64 Barb 199.

Attested will read to testator and executed by each subscribing witnesses separately; sufficient. Thompson v. Stevens, 62 NY 634.

Subscription by all parties in presence of each other; sufficient. Moore, 2 Bradf 261. Request testator visited brother and sister, produced will, requested they act as subscribing witnesses, he signed, then subscribing witnesses, then he put it in pocket and left; sufficient. Darling v. Arthur, 22 Hun 84.

Republication:

95196-57--17

General: act of republishing a will is independent of subscription or acknowledgment of the subscription or signing, and must be separately established. Baskin v. Baskin, 36 NY 416 aff. 48 Barb 200.

Signature not visible: at time declaration made; insufficient. Re Mackay, 110 NY 611. Substantial compliance with statute: sufficient. Re Voorhis, 125 NY 765; Dack v. Dack, 19 Hun 630; Von Hoffman v. Ward, 4 Redf 244.

Time of signing will: declaration prior thereto is sufficient. Re DeHart, 67 Mis 13, 122 NYS 220; Jackson, 39 NY 153; Gamble, 39 Barb 373; Keeney, 16 Barb 141; Rieben, 3 Bradf 353; Leaycraft, 3 Bradf 35; Re Collins, 5 Redf 20; Re Williams, 2 Con 579, 15 NYS 828 aff. 19 NYS 778 aff. 141 NY 572, 36 NE. 345.

Subsequent publication insufficient. Re Dale, 56 Hun 169, 9 NYS 396 aff. 134 NY 614, 32 NE 649; cf. Re Baldwin, 67 Mis 329, 124 NYS 612.

Two attesting witnesses: will admitted where subscribing witnesses denied act of publication. Egan signed if the recitals in the attestation clause had not been true. Re Hunt, 42 Hun 434 aff. 110 NY 278, 18 NE 106.

Denial will admitted where two of three subscribing witnesses denied act of publication. Egan v. Pease, 4 Dem 301.

SIGNATURES; SUFFICIENCY OF PROOF

Assistance in making: signature does not invalidate will. Re Kearney, 69 AD 481, 74 NYS 1045.

found. 345.

Discrepancy between signature and name in will; probate granted under circumstances Re Williams, 2 Connoly 579, 15 NYS 828 aff. 19 NYS 778 aff. 141 NY 572, 36 NE Fictitious name: signed by witness; sufficient. Re Jacobs, 73 Mis 162, 132 NYS 481. Fingerprints: affixed to will in presence of two witnesses; sufficient. Re Romanie, 163 Mis 481, 296 NYS 925. Imperfect or indistinct subscription: may be regarded as a mark. Hartwell v. McMaster, 4 Redf 389. Location of signature at end of will:

General formality that signing must be at end of will is prime safeguard against alteration and fraud. Re Blair, 84 Hun 581, 32 NYS 845 aff. 152 NY 645, 46 NE 1145. Attestation clause:

After signature after attestation clause; sufficient. Younger v. Duffie, 94 NY 535 Re Noon, 31 Mis 420, 65 NYS 568; Re Laudy, 78 Hun 479, 29 NYS 136 aff. 147 NY 699; Cohen, 1 Tuck 286.

Part of will: signature by testator after attestation clause makes clause part of the will; sufficient. Re Laudy, 78 Hun 479, 29 NYS 136 rev. 14 AD 160, 43 NYS 689 aff. 147 NY 699, 42 NE 724 mod. 148 NY 403, 42 NE 1061. Between signature of testator and commencement of attestation clause; sufficient. Re Gilman, 38 Barb 364.

In attestation clause; sufficient. Re DeHart, 67 Mis 13, 122 NYS 220; Re Noon, 31 Mis 420, 65 NYS 568; Re Dayger, 47 Hun 127 aff. 110 NY 666, 18 NE 480.

End of will: signatures of testator and witnesses must be at end of will. Dennett v. Taylor, 5 Redf 561: Hewitt v. Hewitt, 5 Redf 271 aff. 91 NY 261; Nies, 13 StR 756; McGuire, 2 Bradf 244: Heady, 15 AbNS 211; Reilly, 129 Mis 77, 220 NYS 781. Harmonious whole; sufficient. Taylor v. Wardlaw, 3 Dem 48.

Envelope signature before notary who signed with witnesses on envelope into which will was placed followed by signature on separate paper identifying will contained in sealed envelope; insufficient. Vogel v. Lehritter, 139 NY 223, 34 NE 914 aff. 64 Hun 308. 18 NYS 923.

Executor clause:

Before clause appointing executor and in testimonium clause, where signature was intended to be subscription; sufficient. Ficken's Will, 143 Mis 407, 256 NYS 617 Re Gedney, 17 Mis 500, 41 NYS 205. Pages where will written on pages one and three, testator signed on bottom of three, and attestation clause and witnesses' signature at top of page two; sufficient. Hitchcock v. Thompson, 6 Hun 279.

Presumption: presence of signatures in proper place raises presumption of due execution, but no presumption arises where signatures appear in body of will; additional proof must be adduced as to intention in signing. Re Booth, 127 NY 109, 27 NE 826.

Principal part: signature at end of principal part, one paragraph carried over to next page: insufficient. Re O'Neil, 91 NY 516.

Reference will referring to another paper: sufficient. Tonnele v. Hall, 4 NY 140. Sale clause signature followed by clause conferring power of sale on executors; insufficient. Re Blair, 84 Hun 581, 32 NYS 845 aff. 152 NY 645.

Several clauses: after testator's signature, attestation clause and signatures of witnesses; insufficient. Re Case, 4 Dem 124.

Subsequent provisions: unimportant or immaterial; sufficient. 769. 113 NYS 266.

Three signatures: one at end; sufficient. Re Taylor, 3 Dem 48. Mark as signature: name written by another plus testator's mark tion of testator and it is immaterial which is placed on paper first. 39 NY 153.

Re Gibson, 128 AD

constitutes subscripJackson v. Jackson,

Assistance mark made by testator with assistance of another and declared to be signature: sufficient. Van Hanswyck v. Wiese, 44 Barb 494.

Attestation clause: mark is not sufficient, although there is full attestation clause, where one subscribing witness is dead and one cannot recollect. Worden v. Van Gieson, 6 Dem 237.

One witness: signature by mark cannot be established by one subscribing witness, other being dead, as there is no proof of handwriting of testator. Re Reynolds, 4. Dem 68.

Object of subscription: is to surround testamentary disposition with such safeguards as will protect the testator against alteration and fraud. Re Blair, 84 Hun 581, 32 NYS 845 aff. 152 NY 645, 46 NE 1145.

Order of time in which signature affixed: no proof as to; insufficient. Re McMulkin, 6 Dem 347.