#### Alexander Koppel, Plaintiff, *v.*Hilda Anne Marie Holm et al., Defendants.

(Supreme Court, New York Special Term,

May, 1898.)

Partition — Insufficient proof of the will of the deceased owner, drawn, in a foreign country.

A stipulation showing that the person, a citizen of the state of New York, through whom all the parties to an action of partition claimed* died in a foreign country and left a writing, there made, which was. duly deposited in a court of the foreign country where administration was had and that this paper, never proved or established as a will in the state of New York, had upon its face certain acknowledgments and witnesses, when not accompanied by any proof that the paper was executed and acknowledged according to the requirements, of our Statute of Wills, affords no basis for a defense, interposed in , the action, that this paper, a copy of which was annexed to the answer, governed, as a will, the disposition of the premises.

Action for partition.

Smith, Griffin & Buxton, for plaintiff.

Frederick Cobb, for defendants.

Hiscock, J.

This action is brought for the partition of certain premises consisting of a house and city lot in the city of Hew York. The only defense urged is that one Sander B. Koppel, who owned the premises -and through whom the various parties claim as widow and'heirs-at-law respectively, died, leaving a last will and testament, which governs the disposition of the premises in question. Ho evidence was given upon the trial, but certain facts were stipulated. It was agreed, amongst other things, that said Koppel, being a citizen of the Hnited States died in the city of Copenhagen, Kingdom of Denmark, leaving a certain paper or writing purporting to be his last will and testament, which was drawn and executed in said city of Copenhagen, dated April 12, 1876, and a copy of which is annexed to the answer of the defendants, and that a copy of said paper writing was duly deposited in the Dealing Court of the southern district of the Bailiwick of Copenhagen, and the estate of said' Koppel situate in the said Kingdom of Denmark thereafter admin*558istered pursuant to the laws of said, kingdom and the terms of said will; that said paper writing has never been filed for probate or .admitted to probate as a will or otherwise in the state of Mew York, nor has the same been established in the state of Mew York as a will of real'and personal property and no letters of administration have ■ever been issued upon the estate of said Koppel.

There is nothing in said stipulation showing how or with what forms said paper was executed by said Koppel except as certain inferences- (not necessarily legal) may be drawn as to certain things from the form of the paper itself.

Various reasons are urged by the plaintiff why defendants should not be allowed to avail themselves cf the purported last will and - testament as a defense to this action, and some of these reasons present questions worthy of consideration. Outside of those urged, however, there is one ground which in my opinion presénts a conclusive answer and objection to defendants’ attempt to set up said instrument. There is, as I have.stated, no evidence whatever to ■show the manner or method cf execution by the testator of the instrument. This does not even appear from the face of the copy of the paper, if that were competent and sufficient evidence, which it is not. For while it would appear from the face of the paper that there were certain acknowledgments and witnesses, it does not appear that they were made or acted in the manner prescribed by our ■statute relating to the execution and especially the witnessing of "wills. It is well settled that in order that a paper may be proved or have effect as a last will and testament governing the disposition •of real property it must appear that the same was executed in accord-. anee with the provisions .¡of our statutes upon that subject, and this not so appearing in connection with this paper it is not valid for the purposes urged by defendants. Code, § 2611; Vogel v. Lehritter, 64 Hun, 308; Matter of Klett’s Will, 3 Misc. Rep. 385.

It appearing that the premises are ¡so circumstanced that they cannot be actually partitioned, findings or decision and the ordinary interlocutory judgment may be prepared directing a sale of the premises under the direction of G-eorge Cl Austin, Esq., as referee, when the court has. been furnished ¡with a search as provided by Code, § 1561.

Ordered accordingly.