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 1993. 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 NÝS 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 NYS2d 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. Re Bogert, 4 CivP 441, 67 How. 313 aff. 6 CivP 128. 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; suffiRe Gilman, 38 Barb 364. cient. 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. Presence of witnesses: signature must be made or acknowledged in presence of subscribing witnesses. Baskin v. Baskin, 36 NY 416; Jackson v. Jackson, 39 NY 153; Mitchell v. Mitchell, 16 Hun 97 aff. 77 NY 596. Same room: signature made in same room with witnesses is sufficient, although one witness did not look at testator. Re Bedell, 12 NYS 96, 2 Con 328. Tracing from genuine signature; insufficient. Re Rice, 81 ÁD 223, 81 NYS 68. Witness: name of testator per name of witness; insufficient. Larabee v. Ballard, 1 Dem 496. One for another one witness may sign for another who is incapacitated. Strong, 16 NYS 104, 2 Con 574. ACKNOWLEDGEMENT; SUFFICIENCY OF PROOF Re General in absence of subscription in presence of witnesses there must be acknowledgment. Sisters Charity v. Kelly, 67 NY 409; Re Mackay, 44 Hun 571 aff. 110 NY 611, 18 NE 433; Re Van Gieson, 47 Hun 5. Acknowledgment, subscription and declaration are independent requisites. Lewis v. Lewis, 11 NY 220. Forgetfulness: circumstances forgotten but attestation clause read; sufficient. Re Townley, 1 Con 400, 4 NYS 455. Form or language: Act: is sufficient acknowledgment if testator cannot speak. Lane v. Lane, 95 NY 494. Assent: without express declaration; sufficient. Re Bernsee, 141 NY 389, 36 NE 314. Formal language: is unnecessary. Re Austin, 45 Hun 1; Re Hunt, 110 NY 278, 18 NE 106 aff. 42 Hun 434. Implied acknowledgment: it is sufficient to justify probate if it is apparent that testatrix and witnesses knew that paper was last will of testatrix, that in substance she declared it to be such, and indicated her wish that subscribing witnesses function. Re Heller, 222 AD 64, 225 NYS 244. Identification of written words: necessary. Mitchell v. Mitchell, 16 Hun 97 aff. 77 NY 596. Knowledge alone on part of subscribing witnesses that paper is will is insufficient. Gilbert v. Knov, 52 NY 125. Presence of witnesses: it is essential that testator's declaration acknowledging his signature be in express terms and in presence of subcribing witnesses. Lane v. Lane, 95 NY 494. Presentation to subscribing witnesses: with signature visible, stating it to be his will, and requesting them to sign; sufficient. Re Lang, 9 Mis 521, 30 NYS 388; Re Phillips, 98 NY 267; Baskin v. Baskin, 36 NY 416; Re Willis, 36 NY 486; Austin, 45 Hun 1; Re Hunt, 42 Hun 434 aff. 110 NY 278; Stockwell, 17 Mis 108, 40 NYS 734; Klett, 3 Mis 385, 24 NYS 721; Re Look, 7 NYS 298 aff. 5 NYS 50, 1 Con 403, 22 StR 86; Robinson, 13 AbP 359; Jauncey, 2 Barb Ch 40; Porteus v. Holm, 4 Dem 14; Buckhout, 4 Dem 277 ; Gardiner, 3 Dem 98; Re Parker, 130 Mis 547, 225 NYS 203. Van Geison, 47 Hun 5; Publication of will: without acknowledgment is insufficient. Mitchell v. Mitchell, 16 Hun 97 aff. 77 NY 596; Morris, 52 How 1; Chaffee, 10 Paige 85; Buckhout, 4 Dem 277. Request to attest signature: accompanying publication; sufficient. Taylor v. Brodhead, 5 Redf 624. Reading attestation clause to witnesses: followed by affirmation that it was his will; sufficient. Whitbeck v. Patterson, 10 Barb 608. Request to sign: is not acknowledgement. Re Eakins, 13 Mis 557, 35 NYS 489. Signature of testator: it is subscription, not instrument, which statute requires be acknowledged. Re Abercrombie, 24 AD 407, 48 NYS 414. Beginning of will; no evidence that testator referred to such signature as signature to will insufficient. Re Booth, 6 NYS 41. Invisible insufficient. Re Mackay, 110 NY 611; Lewis, 11 NY 220; Abercrombie, 24 AD 407, 48 NYS 414: Eakins, 13 Mis 557, 35 NYS 489; see Willis, 36 NY 486. Not observed: sufficient if signature visible, although not observed. Re Laudy, 161 NY 429, 55 NE 914. Written by another: acknowledgment of signature so written sufficient. Robins v. Coryell, 27 Barb 556. Time: acknowledgment subsequent to witnesses' subscription is insufficient. Re Dall, 56 Hun 169, 9 NYS 396 aff. 134 NY 614, 32 NE 649. ATTESTATION; SUFFICIENCY OF PROOF General: subscribing witnesses are required for purpose of attesting aud identifying the subscription. Baskin v. Baskin, 36 NY 416 aff. 48 Barb 200. Attestation clause: Absence of attestation clause does not affect validity of will. Re Burk, 2 Redf 239. Circumstances: facts of due execution may be proved by attestation clause and surrounding circumstances. Peck v. Cary, 27 NY 9 aff. 38 Barb 77. First page only printed form, first page executed with attestation clause, second page signed but not witnessed; first page admitted. Re Mandelick, 6 Mis 71, 26 NYS 888. Forgetful witness: where there is full attestation clause, will may be admitted on testimony of forgetful witness that he would not have signed if attestation clause had not been complied with. Pepoon Will, 91 NY 255. Position, attestation clause separated signatures of testator from those of witnesses sufficient. Re Beck, 6 AD 211, 39 NYS 810 aff. 154 NY 750, 49 NE 1093. Presumption: due execution cannot be inferred or presumed from attestation clause where facts to contrary are proved. Lewis v. Lewis, 11 NY 220; Pepoon Will, 91 NY 255. Prima facie attestation clause, with proof of signatures of the signatories, is prima facie proof of due execution until overcome by opposing evidence. Sizer Will, 129 AD 7, 113 NYS 210 aff. 195 NY 528, 88 NE 1132. Signatures of witnesses: will is not invalidated by reason of the fact that one Re witness subscribed unded the attestation clause while the other signed over it. McAvish, 161 Mis 887, 293 NYS 246. Blind person cannot be attesting witness. Re Losee Will, 13 Mis 298, 34 NYS 1120. Contradiction: holographic will, no attestation clause, one subscribing witness saw testator sign, one identified his own signature but denied testator had signed; sufficient. Re Lock, 1 Con 403, 5 NYS 50 aff 125 NY 762, 27 NE 408. Declaration : lacking; insufficient. Irwin v. Irwin, 1 Redf 495. Forgetfulness: where testator drew own will, witnessed by his employees, who forgot occurrence, but would not have signed if facts in attestation clause not true; sufficient. Re Hunt, 42 Hun 434. Name of testator: mistake in testator's name in attestation clause: correctly named in will; sufficient. Re Crossman, 30 Hun 385 aff. 95 NY 145. One supporting witness: attestation clause can overcome neglect of some of the essentials of execution. Norton v. Norton, 2 Redf 6. Death of one witness, other testifying as to will thirty years old, attestation clause incomplete; sufficient. Nicholson v. Meyers, 3 Dem 193. Forgetfulness: failure to recollect by subscribing witness will not defeat will if there is attestation clause and surrounding circumstances are shown Rugg v. Rugg, 83 NY 592 Lewis v. Lewis, 11 NY 220; Pepoon Will, 91 NY 255; Rolla v. Wright, 2 Dem 482. Request to sign only one of two witnesses requested to sign; insufficient. Bradley, 144 Mis 276 258 NYS 449. Signing one witness only signing; insufficient. Ex parte LeRoy, 3 Bradf 227. Presence: Re Each other; attestation sufficient although not made in presence of each other. Hoysradt v. Kingman, 22 NY 372; Re Potter, 12 NYS 105; Gardiner v. Raines, 3 Dem 98. Execution: subscribing witness is one who was present when the instrument was Re McDonough, executed and who at the time subscribed as a witness to its execution. 201 AD 203, 193 NYS 734. Coffin v. Coffin, 23 Request to sign: in_answer to question put to testator; sufficient. NY 9; McDonough v. Loughlin, 20 Barb 238; Tunison v. Tunison, 4 Bradf 138; Gombault v. Pub Admr, 4 Bradf 226: Troup v. Reid, 2 Dem 471. Any words or acts: clearly evincing that desire; sufficient. 23 NY 9. Coffin v. Coffin, Handing to witness: signing will in presence of witnesses and passing over to them to sign; sufficient. Re Gamber, 53 Mis 168. 104 NYS 476. Hearing: evidence sufficient although deaf witness testified he did not hear request. Re McLarney, 90 Hun 361, 35 NYS 893 aff. 153 NY 416. Holographic will request to witness paper is insufficient even though it be holographic will. Re Beckett, 103 NY 167, 8 NE 506. Inferred from statements of attestation clause, Nicholson v. Myers, 3 Dem 193; Re Walsh, 4 Redf 165. Mental condition request by testator while under influence of opium; insufficient. Re Lyman, 14 Mis 352, 36 NYS 117. One witness: only requested to sign; insufficient. 258 NYS 449; cf. Re Frey 2, Con 70, 7 NYS 330. Bradley Will, 144 Mis 276, Presence request to one witness in presence of other; sufficient. Re Woolsey, 17 Reading of will: and names of witnesses after signature by them; sufficient. Haber Will, 118 Mis 179, 192 NYS 616. Request to read: no direct request to sign nor direct declaration but testator read and signed and handed to witness, who was requested to read the attestation clause; sufficient. Woolsey, 17 Mis 547, 41 NYS 263. Who may make: ordinarily request is made by testator to the witnesses; but Gilbert v. Knox, request may proceed from any other person if adopted by testator. 52 NY 125. Signature: Out of hearing: of testator; insufficient. McKinley v. Lamb, 64 Barb 199. One for both: one witness did not see testator sign and the other signed for both; insufficient. Re Losee, 13 Mis 298, 34 NYS 1120. Seeing testator sign: prime essential is that subscribing witnesses see testator sign. Jackson v. Jackson, 39 NY 153; Re McMulkins, 6 Dem 347. Three witnesses: one subscribing witness dead, but handwriting proved, one not sure testator signed before witnesses, third witness heard attestation clause read but no Re De Haas, 9 AD 561, 41 NYS 696. memory as to subscription; insufficient. Formalities complied with as to two witnesses: but not as to unnecessary witness; sufficient. Sizer Will, 129 AD 7, 113 NYS aff, 195 NY 528, 88 NE 1132. Herrick v. Snyder, 27 Time: attesting witnesses signed at different times; sufficient. Mis 462, 59 NYS 229. Vernam v. Spencer, 3 Bradf 16. After death of testator; insufficient. Before will signed: sufficient. Seguine, 2 Barb 385. Two attesting witnesses: there must be two subscribing witnesses and they must Re Fish, 88 Hun 56, 34 NYS 536, aff. become such during the lifetime of the testator. 153 NY 679, 48 NE 1104. DUE EXECUTION; SUFFICIENCY OF PROOF Attestation clause in handwriting of testator: other circumstances aided thereby. Re Cottrell, 95 NY 329. Burden of proof: due execution is question of fact for surrogate upon which proponent Re McMulkens, 6 Dem 347. bears affirmative. Re Elmer, 88 Hun 290, 34 NYS 406. Codicil where codicil was submitted for probate the surrogate refused to admit upon the issue of due execution until the objection of undue influence had been disposed of. Dack v. Dack, 84 NY 663. Duplicate wills: sufficiently executed. Re Crossman, 95 NY 145. |