#### Matter of the Contested Will of Kasryel H. Sarasohn, Deceased.

(Surrogate’s Court, New York County,

June, 1905.)

Wills — Execution of will — Evidence of execution — Burden of proof.

Where one of the witnesses to a will, who drew it, testifies he cannot remember that the decedent told the other witness, named Wolberg, what the will was, and the other witness denies having heard any declaration to the effect that the paper was a will, and one who was present and was called as a witness by the proponent says the character of the paper as a will was not spoken of by the decedent to Wolberg, or by the draftsman, in the presence of the decedent and Wolberg, though the draftsman says that, after Wolberg had signed, he told him it was a will, which is contradicted; and where there is no attestation clause, reciting the details of due execution, and the execution of the paper was not superintended by a competent lawyer, nor by one shown to be familiar with the requirements of the law, further than to understand that two witnesses were necessary; and where the paper was written in Hebrew, by one who could not speak the English language, upon two separate sheets, not attached to each other, only one of which was signed by the witness Wolberg; and where it is clear that it was desired to keep it secret that a will had been executed, held:

The surrogate should find that decedent did not declare in the presence of the witness Wolberg that the paper propounded was his will and probate thereof should be refused.

Peogeedings upon the probate of a will,

*536Rastus S. Ransom, for proponent.

ÍTathan Byier, for contestant.

Thomas, S.

There are some statements in the testimony of the draftsman of the propounded paper, who is also one of the witnesses to its execution, which, if taken by themselves and accepted as true, would justify a finding that the decedent declared to the witness Wolberg that the paper was his will. Other statements made by him would seem to lead to a different result. Thus, when asked by counsel for the proponent as to whether anything was said by the decedent to Wolberg about the paper, he said: “ I cannot remember that he told him what it was. I merely heard him say that he requested him to sign.” This witness was examined through an interpreter.

Mr. Wolberg denied having heard any declaration to the effect that the paper he was called upon to witness was a will, and he asserted that he signed the paper as a witness, at the request of the decedent and without knowledge of its character, other than what could be gained from a description of it as a note or memorandum. He testified in English and appeared to me to be an educated man of unusual intelligence, who was trying to tell the truth. If the apparently inconsistent statements of the draftsman can be reconciled in favor of the proponent’s theory, there is a clear conflict between the two subscribing witnesses.

The nurse called by the proponent, who was present during all the brief period while Wolberg was in the sick room of the decedent for the purposes of the execution of the paper, testified that the decedent told Wolberg “ to sign this paper and again, “ He said to Enoch he should sign his name.” According to this witness the character of the paper as a will was not spoken of by the decedent to Wolbevg, or by the draftsman in the presence of the decedent and Mr. Wolberg, at any time prior to its complete execution, thus corroborating the story of Mr. Wolberg and contradicting the portions of the testimony of the draftsman relied upon by the proponent. He also testified that, after Wolberg had signed, and while *537the parties were still together, the draftsman said to Wolberg': “ That is a will.” It is not claimed that the decedent, either by word or gesture, manifested any concurrence in this declaration, or gave any sign that he had heard it. That any such declaration was made is in contradiction to both of the subscribing witnesses, who agree that nothing was said or done after the paper had been signed by Wolberg, when he immediately left the room. It is hard to believe the testimony of the draftsman that he made the declarations to Wolberg which he says he did, at times prior to the execution of the paper, and also to believe that it occurred to him to explain to Wolberg that the paper was a will, after it had been signed by Wolberg, and when such explanation would seem to have been unnecessary.

It is not an unusual thing for one or more of the subscribing witnesses to a will to deny the observance of some of the prescribed formalities of execution, and I am referred to the numerous cases where wills -have been admitted to probate, notwithstanding such denials. In' each case the question is one of fact. In many of them the proponent was aided by circumstances not present here, such as the fact that the witnesses had signed an attestation clause reciting’ the details of due exemition, or the execution, of the paper had been superintended by a competent lawyer, or by some person shown to be familiar with the requirements of the law. In this case there was no attestation clause, no lawyer was present or had anything to do with the matter, and none of the persons present are shown to have had any knowledge of the law governing the execution of a will, further than to understand that two witnesses were necessary. The paper was prepared by a person unable to speak our language and without any special knowledge of the law of this State. It was not written in the English language, but in Hebrew characters and in classical Hebrew. It was written upon two sheets of paper, which were not in any way attached or fastened to each other. Mr. Wolberg says that he only saw the sheet which bears his signature; that he was unable to read it, and that he did not read it. He was an employee of the decedent, accustomed to obey *538his instructions, and it is not remarkable that he should certify as a witness to the execution of a paper duly signed by his employer without inquiry as to its character.

It is quite clear that it was desired to keep it secret that a will was being executed, and it would seem that the draftsman and the decedent did not know how important it was that the subscribing witnesses should both know just what they were doing.

The general legal principle, that the burden of proving every necessary fact rests upon the party alleging it, is fortified as to proceedings to prove wills by the statute requiring’ that the surrogate must be satisfied as to due execution. Code Civ. Pro., § 2622. In this case I am not so satisfied, and, on the contrary, I am of opinion that the weight of evidence requires me to find as a fact that the decedent did not, at any time, declare to or in the presence of the witness Wolberg that the propounded paper was his will. Probate will, therefore, be refused. Costs will be awarded to both parties, payable out of the estate. Tax costs and settle findings and decree on notice.

Probate denied. Costs to both parties, payable out of estate.