#### In the Matter of the Probate of a Paper Alleged to be the Last Will of Cecilia L. Booth, deceased.1 Geraldine J. Timoney, Proponent and App’lt, *v.*Joseph A. Booth, Contestant and Resp’t.

*(Court of Appeals, Second Division,*

*Filed June 2, 1891.)*

*1.*Will—Holograph—Execution op—Acknowledging signature.

Bach, of the four statutory requisites for the execution of a will must be complied with. The *acknowledging*of the "making of the signature" will not supply the want of the *signing*by the testator.

2. Same.

Testator wrote in her own hand a paper signed by two witnesses, beginning: “If I, Cecilia L. Booth, should die * * * I leave,” etc., hut did not sign at the end, *Held,*that her simple declaration to one of the subscribing witnesses? “ This is my will, take it and sign it,” standing alone, is insufficient to sustain a verdict that her name written by her in the first line of the document was there written with intent that it should have effect as her signature in the final execution of her will.

Appeal from a judgment of the general term of the first department, refusing to probate a paper alleged to be the last will of Cecilia L. Booth.

On the 16th of June, 1884, Cecilia L. Booth, a resident of the state of New Jersey and the wife of the contestant, wrote in her own hand a paper which was signed by two witnesses, of which the following is a copy:

“ If I, Cecilia L. Booth, should die within the year 1884, I leave to my sister, Geraldiiie Josephine Timoney, all money due me from my late father’s deceased will, also my wearing apparel and furniture, and I also leave to my little nephew, Albert Philip Timoney, all money deposited in the Emigrant Savings Bank in my maiden name Cecilia L. Hatfield.

“ Witnessed by

“ Amelia Kurrtts,

“ Mamie Clifford.

*“June*16, 1884.”

*73August 10, 1884, Mrs. Booth, then a citizen of the state of New Jersey, died in that state, leaving personal property in the city and county of New York.

Geraldine Josephine Timoney presented the instrument to the surrogate’s court of the city and county of New York as the last will and testament of Cecilia L. Booth, and asked to have it admitted to probate as such, which was contested by the husband of Mrs. Booth. The surrogate held that the instrument was well executed under the laws of New Jersey, and admitted it to probate. 3 Dem., 416. On an appeal to the general term the decision of the surrogate was reversed and a new trial directed by a jury. 38 Hun, 644.

The following questions were submitted to the jury, all of which were found in the affirmative, except the eighth, which was answered in the negative:

“ 1st. Was the paper, propounded as the last will and testament of Cecilia L. Booth, deceased, written by her ?

“ 2d. If such paper was written by said Cecilia L. Booth, where was it written ?

“ 3rd. Was the name ‘Cecilia L. Booth,’ appearing on the first line of said paper, written or made by Cecilia L. Booth, the deceased wife of the contestant ?

“ 4th. If said name ‘ Cecilia L. Booth,’ was written by Cecilia L. Booth, deceased, was it written by her in the presence of two witnesses who were present at the same time, and who subscribed their names to said paper as witnesses in the presence of said Cecilia L. Booth ?

“ 5th. If the name ‘ Cecilia L. Booth ’ was written by Cecilia L. Booth, deceased, did she acknowledge the writing or making thereof in the presence of two witnesses, who were present at the same time, and who subscribed their names to said paper as witnesses in the presence of said Cecilia L. Booth ?

“ 6th. H said paper and said name of ‘ Cecilia L. Booth ’ was written or made by said Cecilia L. Booth, deceased, did she declare the same to be her last will in the presence of two witnesses, present at the same time, who subscribed their names thereto, as witnesses, in the presence of said Cecilia L. Booth ?

“7th. Was said Cecilia L. Booth, at the time of making or executing said paper, mentally competent to make or execute a last will and testament ?

“8th. If Cecilia L. Booth, at the time of making or executing said paper, was mentally competent to execute a last will and testament, was such paper procured under undue or improper influence or fraud ?”

The proponent applied for a judgment at the general term, which was denied, and the contestant for a new trial, which was granted, on the ground that the answer to the fifth question was not sustained by the evidence. 13 N. Y. State Rep., 344. Upon the second trial by jury, all of the issues were again found in favor of the proponent, but the general term again denied proponent’s motion for judgment, and denied the contestant’s motion for a new *74trial on all of the questions; but held that the answer of the jury to the fifth question was unsupported by the evidence, and directed a new trial of that question only. Upon the third trial by jury they were directed to answer the fifth question in the negative. Upon appeal to the general term the direction was sustained, and it was held that the will was not entitled to be probated; from which judgment an appeal was taken to the court of appeals.

*J. Stewart Ross,*for app’lt; *B. F Watson,*for resp’t.

1

 Affirming 32 N. Y. State Rep., 1131.

Follett, Ch. J.

At common law, if a person wrote his name in the body of a will or contract with intent to execute it in that manner, the signature so written was as valid as though subscribed at the end of the instrument. *Merritt*v. *Clason,*12 Johns., 102; S. C., sub. nom. *Clason*v. *Bailey,*14 id., 484; *People*v. *Murray,*5 Hill, 468; *Caton*v. *Caton,*L. R, 2 H. L., 127 ; 2 Kent’s Com., 511; 1 Dart’s V. & P., 6th ed., 270; 1 Jar. Wills, Big’s ed., 79.

We shall assume, without deciding, that under the laws of New Jersey a will may be legally executed if the name of the testator is written by him in the body of the instrument with intent to so execute it. The statute of that state, which prescribes the mode in which wills shall be executed, provides: “All wills and testaments * * * shall be in writing and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.”

Under this statute it was held, *In re McElwaine,*18 N. J. Eq., 499, that “Four things are required: First, that the will shall be in writing; secondly, that it shall be signed by the testator; thirdly, that such signature shall be made by the testator, or the making thereof acknowledged by him in the presence of two witnesses ; fourthly, that it shall be declared to be his last will in the presence of these witnesses. Each and every one of these requisites must exist. They are hot in the alternative. The third requisite contains an alternative, but one of these alternatives must exist. The second requisite, the signing by the testator, must exist The second alternative of the third, to wit, that he acknowledge 1 making of the signature,’ will not supply the want of the second. Where there is no proof as to the making of the signature, such acknowledgment is sufficient evidence that he made it, and would prove compliance with the requisite of signing by him. But when it is clear that the testator did not sign the will, this acknowledgment is not sufficient. The words of the act are clear; and the object is equally clear, and requires this construction to the words.” This language was used in respect to a vill to which the name of the testatrix was subscribed by one of the subscribing witnesses at her request, in her presence and in the presence of both subscribing witnesses. After this was done the testatrix said, “ that was her name and seal,” but did not acknowledge it to be her signature, nor did she then de*75clare that the instrument was her will; and it was held not to have been executed in accordance with the statute.

Whenever the name of a testator appears, whether in the body or at the end of a will, it must have been written with intent to execute it, otherwise it is without force. When a testator, or the maker of a contract subscribes it at the end and in the manner in which legal instruments are usually authenticated, a presumption arises that the signature was affixed for the purpose of creating a valid instrument. But when the name is written near the beginning of the document, where, as a rule, names are inserted by way of description of the person who is to execute it, and rarely as signatures, it must, before it can be held to have been inserted for the purpose of validating the instrument, be proved to have been written with that intent.

The record contains no evidence tending to show that Mrs. Booth, directly or indirectly, by word or gesture, referred to her name in the first line of the paper as her signature, nor is there evidence of any act on her part from which it might be inferred that the name there written was intended to be in execution of a completed will, and her simple declaration to Mamie Clifford, one of the subscribing witnesses, “This is my will, take it and sign it,” standing alone, is insufficient to sustain a finding or verdict that the name “ Cecilia L. Booth,” written by her in the first line of the document, was there written with intent that it should have effect as her signature in final execution of a will

We are referred by the learned counsel for the appellant to *In re*Higgins, 94 N. Y., 554; *In re*Phillips, 98 id., 267; *In re*Hunt, 110 id., 278 ; 18 N. Y. State Rep., 118, in which it was held that when a testator subscribes a will at the end and exhibits it and the signature to the subscribing witnesses, declares it to be his last will and testament, and requests them to sign it as witnesses, it is a sufficient acknowledgment of the signature. Those cases are quite different from the one at bar, in this, the signatures having been subscribed at the end, in the usual way in which instruments are finally authenticated, the legal presumption arose that the signatures were written for the purpose of finally executing the documents, but, as we have before shown, there is no legal presumption arising from the face of this instrument that the name was written as a signature, nor is there evidence outside of the paper from which such an inference can be safely drawn. It has been the object of the statutes of the various states, prescribing the mode in which wills must be executed, to throw such safeguards around those transactions as will prevent fraud and imposition, and it is wiser to construe these statutes closely, rather than loosely, and so open a door for the perpetration of the mischiefs which the statutes were designed to prevent

The judgment and orders appealed from should be affirmed, with costs payable out of the estate.

All concur, except Brown, J,, not sitting.