#### In the Matter of the Probate of the Last Will and Testament of Nelson Buell Sizer, Late of the County of Kings, Deceased. Howard Wood, Appellant; Leonora Augusta Lorillard, Executrix, etc., of Nelson Buell Sizer, Deceased, Respondent.

Second Department,

November 27, 1908.

Will — due execution before two witnesses sufficient—probate — evidence— attestation clause — failure of memory of subscribing witness — appeal.

Due execution of a will before two subscribing witnesses is sufficient, and its validity is not affected by the fact that when a third and unnecessary witness was asked to sign the formalities of the statute were not complied with.

Although on probate before the surrogate he must examine at least two subscribing witnesses unless they be dead, absent from the State or incompetent, the statute does not require that the formalities of execution be proved by their testimony aloné, for if a subscribing witness has forgotten or testifies against the execution of the will, it may be established nevertheless by proof of the handwriting of the testator and the subscribing witnesses together with such other circumstances as would be sufficient to prove the will upon the trial of an action— that is to say, by any competent evidence, direct or circumstantial, admissible under the common-law rules of evidence.

An attestation clause taken together with proof of the signatures of the testator and the subscribing witnesses is *prima facie*evidence of due execution and sufficient for probate until overcome by opposing evidence.

On a proceeding to probate a will having an attestation clause two witnesses denied any recollection of signing, but admitted their signatures to be genuine, while a third witness, who was not present at the execution before the other witnesses, testified that, when he signed, the testator did not declare the instrument to be his will. Oh all the evidence, *Mid,*that a finding of. due execution should not be reversed. Such finding by the surrogate will not be reversed unless clearly against the preponderance of evidence.

*8’ Appeal by Howard Wood from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 13th day of April, 1908, admitting to probate the will of Kelson Buell Sizer, deceased.

The contestant was a nephew by the half blood.

*William E. Cook,*for the appellant.

*George E. Brower [Stockbridge Bacchus*with him on the brief], for the respondent.

Gayuor, J.:

There are three subscribing witnesses to the will and a full attestation clause, which also certifies to the unnecessary fact that the witnesses signed in the presence of each other. From the date of the will to the hearing on the probate was eight years and seven months. The first and second witnesses testified that they had no recollection of signing the will, or of being asked to, or of any thing connected with it, but acknowledged their signatures to be genuine. The witness who signed last (the third witness) testified that the testator came to his house and asked him to go across the street to his drug store and witness his signature, and that he went and signed a paper under the names of the two preceding witnesses ; that he did not know what the paper was, and that the testator did not say. He does not give the date of this occurrence. How long it was after the other witnesses signed, or even whether it was the same day, does not appear. He says he saw one of the other witnesses in the back part of the drug store, but did not see the other. Only the testator and himself were present when he signed. The signature of the testator was proved, and also that the will was his holograph, except that it was on a printed blank.

Was there evidence of the execution of the will with the formalities required by statute ? This must be answered in the affirmative. The third witness may be left out of consideration on this head, for the will had the requisite number of witnesses before it was signed by him. The isolated after-occurrence with him could neither add to nor detract from what had already been done. If the will was then valid, his act of signing it did not invalidate it. On the question of the weight and preponderance of evidence at the close, the testimony of this third witness has to be considered, but there is *9now under consideration only the question whether there was any evidence of due execution.

In the trial of an action a will, *i. e.,*that the statutory formalities were complied with, may be proved by any competent evidence, direct or circumstantial, subject to its admissibility under the common law rules of evidence. But on probate the surrogate has to follow the method of proof prescribed by statute (Code Civ. Proc. § 2618). He must examine at least two subscribing witnesses to the will, excepting witnesses shown to be dead, absent from the state, insane or otherwise incompetent. But while the statute requires certain formalities in the execution of a will, it does not require that such formalities must be proved by the testimony of the subscribing witnesses to ¿lie will in order that the will may be probated. It provides that “ If all the subscribing witnesses to a written will are, or if a subscribing witness, whose testimony is required, is dead, or incompetent, by reason of lunacy or otherwise, to testify or unable to testify; or if such a subscribing witness is absent from the state; or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may nevertheless be established, upon proof of the handwriting, of the testator, and of the subscribing witnesses, and also of such other circumstances, as would be sufficient to prove the will upon the trial of an action ” (Code Civ. Proc. § 2620). In the present case, therefore, the surrogate was permitted, the recollection of the subscribing witnesses failing, to resort to such other evidence as is receivable in an action. He had before him a full attestation clause, and proof of the signatures of the testator and the subscribing witnesses. Was this alone evidence of the execution of the will with the formalities required by law ? It was. There is no requirement of an attestation clause, but it is nevertheless recognized as evidence by the courts, and received, when necessary, and after proof of the signatures of the testator and the subscribing witnesses, as *prima facie*evidence of the facts certified by it. On examining the eases in this state, it will be found that many of them say that the attestation clause, with proof of the signatures of the testator and the witnesses, *“*and other facts and circumstances ” proved in the particular case, sufficed for the probate of the will; but from this the negative that such clause and proof of signatures alone would not *10have made out a *prima facie*case, and upheld the probate, must not be drawn. The discussion in such cases was upon the weight and preponderance of evidence at the close, and all of the evidence for was being massed against all against; while for the moment, only the question of a *prima facie*case is being now considered. Though the cases are few in this state where the court was called upon to say and did say that the attestation clause with proof of the signatures was alone evidence of formal execution, or made out a *prima facie*case, an analysis of all cases in this state will show that rule to be generally recognized; and there is abundance of authority for it elsewhere, in England and in our states. The case justifies a full citation of authorities *(Matter of*Nelson, 141 N. Y. 152; *Matter of Duffy,*127 App. Div. 174; *Butler*v. *Benson,*1 Barb. 526; *Chaffee*v. *Baptist Missionary Convention,*10 Paige, 85 ; *Potter*v. *McAlpine,*3 Dem. 108; *Norton*v. *Norton,*2 Redf. 6; *Walsh*v. *Walsh,*4 id. 165; *Woodhouse v. Balfour,*13 Prob. Div. 2; *Vinnicombe*v. *Butler,*13 W. R. 392; *Underwood*v. *Thurman,*111 Ga. 325 ; *Thompson*v. *Owen,*174 Ill. 229 ; *In re Estate of Kohley,*200 id. 189; *Allaire*v. *Allaire,*37 N. J. L. 312; *Elkinton*v. *Brick,*44 N. J. Eq. 154; *Orser*v. *Orser,*24 N. Y. 51; *Willis*v. *Mott,*36 id. 486; *Jackson*v. *Jackson,*39 id. 153 ; *Brown*v. *Clark,*77 id. 369 ; *Rugg*v. *Rugg,*83 id. 592 ; *Matter of Pepoon,*91 id. 255; *Matter of Cottrell,*95 id. 329; *Matter of Bernsee,*141 id. 389; *Wyman*v. *Wyman,*118 App. Div. 109; *Matter of Sears,*33 Misc. Rep. 141). The case of *Woolley*v. *Woolley*(95 N. Y. 231), in which it was held that probate could not be allowed on the attestation clause and proof of the signatures alone in opposition to the positive testimony of all of the subscribing witnesses of the lack of an essential formality, has not been overlooked. It is to be observed that the discussion there was as to the weight and preponderance of evidence at the close, and not as to whether an attestation clause with proof of the signatures is evidence of due execution, *i. e.,*makes out a *prima facie*case for probate. But let us suppose that there was other evidence in that case showing that the subscribing witnesses testified falsely — the testimony, say of other persons who were present at the execution — would the evidence of the subscribing witnesses then have sufficed to offset or outweigh the evidence of the attestation clause? How could it if *11it were proved untrue and disbelieved by the surrogate ? It would not do so in the trial of an action, and that is made the test in the surrogate’s court by statute, as has already been seen. Though all of the subscribing witnesses testify to a lack of statutory formalities, there may be even overwhelming evidence that they were complied with, in which case compliance with the formalities is proved, and therefore the will is proved, whether in the surrogate’s court or in a court of law, for the rule in such a case is the same in each.

Consideration of the case is now come to the question of the weight and preponderance of the evidence at the close. The attestation clause, with proof of the signatures, having made out a *prima facie*case, was it overcome by opposing evidence *%*There was none, except the testimony of the third subscribing witness. As has already been said, what occurred when he was called in cannot invalidate what had already been completed. Moreover, the surrogate may well have disbelieved him for it is hard to throw off the strong impression from his evidence, and that of the other two subscribing witnesses that they could remember nothing, not even the signing of their names, that there was a conspiracy to destroy the will. But if he be believed, it is argued that it is a fair inference that the testator was as informal and secretive with the other two witnesses as with him. It is also argued that since the will made the testator’s housekeeper his executor and residuary legatee and devisee, he would naturally conceal from the subscribing witnesses that the paper they were witnessing was his will; and this although his wife was dead, and he had no children or descendants; and in any case was not required to reveal the contents of the will. These things were to be considered, no doubt, but it cannot be said here that they should have outweighed in the surrogate’s mind the said evidence which made out a *prima facie*case for probate. Bis judgment is not to be reversed unless it can be seen here that it was clearly against the preponderance of the evidence.

The decree should be affirmed.

Woodward, Jenks, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county affirmed, with costs.