#### In the Matter of the Estate of Mary L. Stillman, Deceased.

*(Surrogate’s Court, New York County,*

*Filed February 7, 1890.)*

1. Wills—Probate.

If the surrogate is satisfied that the paper propounded was executed in proper form, and it appears to his satisfaction from proof of the facts and circumstances that testator knew it was his will, whether such proof is given by the subscribing witnesses or others, whether by memory of words spoken by testator or by another in his hearing and presence, or whether by acts or signs of the testator, the paper is entitled to probate.

2. Same—Knowledge of testator.

The fact that the will is holographic is evidence that testator knew when he signed it that it was his will.

Petition for revocation of probate.

*Herbert G.*Hull, for proponent; Booraem, *Hamilton &*Beckett, for contestant, Louisa Kellett; *Joseph B.*Owens, for the Association for Befriending Young Girls; *Walter*Hdwards, for Howard Crosby, a legatee ; *John J. Be Laney,*for Margaret A. Gaynor, a legatee.

Ransom, S.

The will, except the printed portion, is in the handwriting of the decedent, and as to form is in all respects a will. No doubt exists as to her capacity to make a will, nor is there any pretense that she was subject to any restraint It is, however, strenuously argued that the paper was not duly subscribed and published. The argument in support of this view is a strong one, but it cannot prevail The purpose of our statute being ascertained, no difficulty will be found in the way of a right decision in this proceeding.

The purpose of the statute is to prevent fraud upon the testator, *214and the first act requiring subscribing witnesses to a will was the. statute of frauds. 29 Charles II., chap. 3.

The question now under consideration was very soon mooted under this act. *Hudson’s*case before the court of King’s Bench; *Rice*v. *Oatfield,*Strange, 1096; *Goodtitle*v. Clayton, 4 Burr., 22, 24; *Windham*v. *Chetwynd,*1 Burr., 414; see illustration of Lord Mansfield, *Lowe v.*Jolliffe, 1 Wm. Bl., 365.

Under the English statute of wills, 1837, see *Gove*v. *Gawen,*3 Curteis, 151; *Chambers*v. *Queen’s Proctor, 2*id., 415; *Blake v.*Knight, 3 id., 549.

The doctrine of these cases has been approved by the courts of this state. *Jauncey*v. Thorne, 2 Barb. Ch., 40.

The surrogate should be satisfied that the paper propounded was executed in proper form; that is to say, that it was signed, by the testator at the end thereof and attested' by at least two witnesses ; or, if not signed in their presence, was declared by the testator to be his last will and nis signature acknowledged to both witnesses. If it appear to his satisfaction, from proof of all the facts and circumstances surrounding its execution, that the testator knew it was his will, whether such proof is given by the subscribing witnesses or by others, whether by memory of the words spoken by testator or by another or others in his presence and hearing, whether by acts or signs on the testator’s part, the paper-propounded is entitled to probate. The paper may be admitted, notwithstanding one or both subscribing witnesses flatly deny that it was either subscribed or published in their presence.

The point is, did the testator know that the paper he signed was his will, and did he in any way disclose such knowledge to-the subscribing witnesses. The surrogate is not permitted to rest his decision upon the testimony of the subscribing witnesses. He must inquire into all the facts and circumstances, and if he be satisfied that the paper was duly executed by a competent testotor he must admit it to probate.

In the present proceeding the paper itself proves that the testatrix knew when she signed it that it was her will; it is holographic.

One of the subscribing witnesses, whose testimony I see no reason to doubt, completely establishes the due execution of' the paper according to the very letter of the law. I do not find the time to analyze her testimony and make comparison between her statements and those of the other subscribing witness, and point out what to me is abundant reason for accepting her story as the truth, nor do I believe that the other subscribing witness, who contradicts her, and upon whose testimony, if believed, the paper must be rejected, has intended to suppress the facts. She is mistaken. Her memory is at fault.

It is perfectly clear to me that the testatrix, at the time she signed the paper, knew it was her will, and she intended to execute it according to law, and she attempted to do so. One witness says she succeeded and one says she did not. Aided by other facts and circumstances surrounding the execution of the paper, I have no doubt about the matter.

*215The principle involved will be found sustained by the following cases: *Baskin*v. *Baskin,*36 N. Y., 416; *Coffin*v. Coffin, 23 id., 10; *Gilbert*v. *Knox,*52 id., 125; *Trustees, etc.,*v. *Calhoun,*25 id., 422; Lane v. Lane, 95 id., 494.

I sustain the learned assistant to the surrogate in his ruling against contestant as to the witness, Gaynor.

Petition for revocation of probate is denied.