The Surrogate.
On the twenty-third day of February, 1851, the testator duly executed his last will and testament. On the third day of March, 1854, being confined to his room by sickness, after having heard read the draft of another will, he directed Mr. Davis to take it to his counsel, have it prepared as soon as possible, and return with some person from the office to witness the will with him. The instrument having been engrossed, Mr. Davis, about one o’clock in the afternoon, repaired to the testator’s residence, in company with Mr. Eaton, the other proposed witness. Mr. Davis proceeded to the testator’s room alone, and read over to him the entire instrument except the attestation clause. A blank was filled by the decedent’s direction, the date inserted, and Mr. Eaton was then called in. The decedent pointed to a candle on the mantel-piece, which act led Mr. Davis to inquire if “ the will was sealed.” Mr. Eaton replied that it was ; and having his hand on the paper, holding it for the decedent to sign, said, “ Mr. Davis have you read the will to Mr. Spencer V’ The testator instantly nodded his head, and uttered the words “ read it,” or “ read will.” He then subscribed the will at the end. Commencing to sign the next page on the margin, he wrote the two initial letters of his name, the pen dropped from his hand, he fell back in his chair, and in a few moments breathed his last.
The will was presented for probate in this condition. After the return of the citation, the parties who were present at the subscription, on the request of counsel, subscribed the will; not however by placing their names to the attestation clause, but in the following manner:—“ This instrument was subscribed by Mr. Wm. A. Spencer in my presence; but after he had subscribed his name, he died, without acknowledging it as his will, and without requesting me to witness it.” N. Y. April 22, 1854. Ezra P. Davis. “ The signa[28]*28ture of the testator, W. A. Spencer, to the foregoing instrument, was hy him subscribed thereto in my presence, on the third day of March, 1854, under the circumstances mentioned in my affidavit relative thereto, sworn by me before the Surrogate, &c.” April 22, 1854. D. B. Eaton.
The particular form of these statements does not seem to me at all material, provided the will has been executed according to law, and the witnesses had authority to sign at the time they subscribed, so as to give the will effect.
The single question is, was this paper duly executed as a last will and testament. In determining this important point, all forms will be discarded save such as the law has made essential. That this paper contains the last expression of the decedent’s wishes cannot be doubted, and every moral consideration should induce the Court to sustain it if possible. The chief difference between the first and the last instrument consists in the increase of a bequest to his daughter from twenty-five thousand to forty thousand dollars. He died in attempting to effect this more favorable disposition, and if it can be sustained in consonance with the rules of law the Court should struggle to do so. Two cases that have occurred in my experience, where one of the witnesses had not signed in the testator’s life-time, admonish me that the rules applicable to the subject must be treated in their general relations, and that to bend them to the emergencies of a particular case tends to the establishment of a dangerous precedent.
I have perused the able and elaborate argument of the learned counsel, who moved the probate, and have fully considered his positions, Had the witnesses subscribed in the testator’s life-time, and in his presence, and without objection, there would have been enough in all the circumstances to justify sentence of probate, notwithstanding the absence of a formal testamentary declaration and request to the witnesses to attest. Hot that I consider the statute to require the witnesses to sign in the testator’s actual presence or view, but the fact that the testator has seen them sign and [29]*29acquiesces therein, often aids the proof of testamentary declaration and request, and gives weight and substance to informal and casual declarations. But in the present case, although the testator had subscribed the will at the seal, he was still engaged in signing his name in the margin, when his power of consciousness ceased. Though he had written all the law required him to write, he had not written all he proposed to write, and he expired before he accomplished his purpose. There was no finality even in Ms action; and much less had he arrived at that stage when the document was to be turned over to the witnesses for attestation. He had requested two persons to attend, in order to be witnesses, but he had not yet requested them to witness and attest the will, for he had not yet reached that point—he was still occupied in authenticating the instrument, and before it had left his hands he was seized with death. That event arrested the transaction in an imperfect and unfinished condition. I do not think therefore that under the circumstances the testator declared the instrument he was signing to be his last will and testament, or that he had requested the persons present to subscribe that instrument as witnesses. The help given to informal statements by the signature of the witnesses in the testator’s presence, and with his approbation, is wanting.
But if the facts showed a complete act on the part of the testator, so far as related to his own subscription, the testamentary declaration and the request to the proposed witnesses to attest, and then an interruption of the affair by death, could the witnesses subscribe after his decease, so as to give the will validity ? The statute requires the will to be subscribed by at least two attesting witnesses—can that act be performed after the death of the principal? At the moment of death the law disposes of his estate, either by descent or in conformity to his last will, if there be one. To interrupt the descent there must be a valid will. The will speaks at the instant of death. If without vitality then, what can ever give it vitality ? If the will now under consideration [30]*30took effect on the testator’s decease, then his property passed by an unattested instrument, and the statute of wills is set at naught. If it did not take effect then, but on the subscription of the witnesses, six weeks afterwards, took effect as of the time of the death by way of relation, it follows that the act of the witnesses operated to divest the heirs of property descended, and to vest it in devisees, under an instrument not perfected in the life-time of the ancestor. If the witnesses can perform that act an hour, or six weeks after the decedent has expired, they can do so a year after. Can the devolution of his estate depend upon them or their volition? If not, then they may be compelled to sign, although if the decedent were living they could refuse.
To the due execution of a will several ceremonial parts are necessary, and one just as necessary as another. There is no will until they are all completed. The absence of any one ceremony destroys the unity. These ceremonies are acts. The mere intention to have them all performed is not sufficient, but the intention must be effectuated in fact. If accident intervene to prevent their performance, the intention cannot be taken in lieu of performance, or instead of the act.
Nor is it enough to say the decedent has done all he could do, or all that he was called upon to do in his own person, and therefore the will is valid.
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The Surrogate.
On the twenty-third day of February, 1851, the testator duly executed his last will and testament. On the third day of March, 1854, being confined to his room by sickness, after having heard read the draft of another will, he directed Mr. Davis to take it to his counsel, have it prepared as soon as possible, and return with some person from the office to witness the will with him. The instrument having been engrossed, Mr. Davis, about one o’clock in the afternoon, repaired to the testator’s residence, in company with Mr. Eaton, the other proposed witness. Mr. Davis proceeded to the testator’s room alone, and read over to him the entire instrument except the attestation clause. A blank was filled by the decedent’s direction, the date inserted, and Mr. Eaton was then called in. The decedent pointed to a candle on the mantel-piece, which act led Mr. Davis to inquire if “ the will was sealed.” Mr. Eaton replied that it was ; and having his hand on the paper, holding it for the decedent to sign, said, “ Mr. Davis have you read the will to Mr. Spencer V’ The testator instantly nodded his head, and uttered the words “ read it,” or “ read will.” He then subscribed the will at the end. Commencing to sign the next page on the margin, he wrote the two initial letters of his name, the pen dropped from his hand, he fell back in his chair, and in a few moments breathed his last.
The will was presented for probate in this condition. After the return of the citation, the parties who were present at the subscription, on the request of counsel, subscribed the will; not however by placing their names to the attestation clause, but in the following manner:—“ This instrument was subscribed by Mr. Wm. A. Spencer in my presence; but after he had subscribed his name, he died, without acknowledging it as his will, and without requesting me to witness it.” N. Y. April 22, 1854. Ezra P. Davis. “ The signa[28]*28ture of the testator, W. A. Spencer, to the foregoing instrument, was hy him subscribed thereto in my presence, on the third day of March, 1854, under the circumstances mentioned in my affidavit relative thereto, sworn by me before the Surrogate, &c.” April 22, 1854. D. B. Eaton.
The particular form of these statements does not seem to me at all material, provided the will has been executed according to law, and the witnesses had authority to sign at the time they subscribed, so as to give the will effect.
The single question is, was this paper duly executed as a last will and testament. In determining this important point, all forms will be discarded save such as the law has made essential. That this paper contains the last expression of the decedent’s wishes cannot be doubted, and every moral consideration should induce the Court to sustain it if possible. The chief difference between the first and the last instrument consists in the increase of a bequest to his daughter from twenty-five thousand to forty thousand dollars. He died in attempting to effect this more favorable disposition, and if it can be sustained in consonance with the rules of law the Court should struggle to do so. Two cases that have occurred in my experience, where one of the witnesses had not signed in the testator’s life-time, admonish me that the rules applicable to the subject must be treated in their general relations, and that to bend them to the emergencies of a particular case tends to the establishment of a dangerous precedent.
I have perused the able and elaborate argument of the learned counsel, who moved the probate, and have fully considered his positions, Had the witnesses subscribed in the testator’s life-time, and in his presence, and without objection, there would have been enough in all the circumstances to justify sentence of probate, notwithstanding the absence of a formal testamentary declaration and request to the witnesses to attest. Hot that I consider the statute to require the witnesses to sign in the testator’s actual presence or view, but the fact that the testator has seen them sign and [29]*29acquiesces therein, often aids the proof of testamentary declaration and request, and gives weight and substance to informal and casual declarations. But in the present case, although the testator had subscribed the will at the seal, he was still engaged in signing his name in the margin, when his power of consciousness ceased. Though he had written all the law required him to write, he had not written all he proposed to write, and he expired before he accomplished his purpose. There was no finality even in Ms action; and much less had he arrived at that stage when the document was to be turned over to the witnesses for attestation. He had requested two persons to attend, in order to be witnesses, but he had not yet requested them to witness and attest the will, for he had not yet reached that point—he was still occupied in authenticating the instrument, and before it had left his hands he was seized with death. That event arrested the transaction in an imperfect and unfinished condition. I do not think therefore that under the circumstances the testator declared the instrument he was signing to be his last will and testament, or that he had requested the persons present to subscribe that instrument as witnesses. The help given to informal statements by the signature of the witnesses in the testator’s presence, and with his approbation, is wanting.
But if the facts showed a complete act on the part of the testator, so far as related to his own subscription, the testamentary declaration and the request to the proposed witnesses to attest, and then an interruption of the affair by death, could the witnesses subscribe after his decease, so as to give the will validity ? The statute requires the will to be subscribed by at least two attesting witnesses—can that act be performed after the death of the principal? At the moment of death the law disposes of his estate, either by descent or in conformity to his last will, if there be one. To interrupt the descent there must be a valid will. The will speaks at the instant of death. If without vitality then, what can ever give it vitality ? If the will now under consideration [30]*30took effect on the testator’s decease, then his property passed by an unattested instrument, and the statute of wills is set at naught. If it did not take effect then, but on the subscription of the witnesses, six weeks afterwards, took effect as of the time of the death by way of relation, it follows that the act of the witnesses operated to divest the heirs of property descended, and to vest it in devisees, under an instrument not perfected in the life-time of the ancestor. If the witnesses can perform that act an hour, or six weeks after the decedent has expired, they can do so a year after. Can the devolution of his estate depend upon them or their volition? If not, then they may be compelled to sign, although if the decedent were living they could refuse.
To the due execution of a will several ceremonial parts are necessary, and one just as necessary as another. There is no will until they are all completed. The absence of any one ceremony destroys the unity. These ceremonies are acts. The mere intention to have them all performed is not sufficient, but the intention must be effectuated in fact. If accident intervene to prevent their performance, the intention cannot be taken in lieu of performance, or instead of the act.
Nor is it enough to say the decedent has done all he could do, or all that he was called upon to do in his own person, and therefore the will is valid. Such a doctrine would make a will good, when the parties requested to subscribe as witnesses refused—which they might do from justifiable and conscientious motives. In the execution of the last will and testament nothing rests entirely in intention—and the act of the witnesses is just as essential as the act of the testator. -
Nor do the parties requested to attend as witnesses contract to become witnesses. Till they sign, whether they shall become attesting witnesses or not, rests in their and the testator’s absolute discretion. They may at the last instant perceive some reason for not authenticating the document. Till they sign, whether he shall complete the will, or whether they shall become attesting witnesses or not, is in the testa[31]*31tor’s absolute discretion. At the last moment his intention to perfect the will is still ambulatory ; and even after a formal request to them to sign, he may change his mind as to making.a will at all, or may perceive some reason for preferring other witnesses. The request to the witnesses to attest is itself revocable till acted on. Death revokes it. At the time the witnesses sign, they must sign under a present existing request. The request is their authority, and they must act under a present subsisting authority. They derive all their right and power to subscribe from the testator’s present volition and consent. When he ceases to exist, their power is withdrawn. Every derivative power depending on the will of the author dies with him, unless extended in express terms beyond his death.
But I do not think the testator had in the present case done all the law required him to do. To make a valid will, it was just as necessary for him to procure before his death the attestation and subscription of two witnesses, -as it was for him to have the will drawn and subscribed. The testator, is the prime mover—to devise his property he needs to see completed certain forms during his life-time ; and if by the intervention of Providence he does not live to see them all accomplished, the act is not completed. If Mr. Spencer had lived, the will now before me, in the state in which it was offered for probate, could not have been taken as a good will. The instant before his death it was not a valid will. The moment he died it was not a valid will—and then how could that which was not valid and perfect during life, and at death, become valid six weeks after he expired. Again, though the attestation in the testator’s exact view is not necessary, still the attestation is in a certain sense part of the testator’s act, and a ceremonial part of the will. The whole will is his act. The witnesses are mere aids or instruments in performing it. The attestation is part of the execution; it is dependent on the testator’s request, though not on his presence, and when the witnesses sign they do so for the testator, and as his agents.
[32]*32For the various reasons advanced, I am compelled to conclude that all the formalities required by the statute must be celebrated, must be complete and ended, before the testator’s decease; that as it is his will, voluntas, which is being made, and its execution, factum, celebrated, the continuance of his volition is essential at every stage of the transaction, gives vitality to every ceremony and every act, whether principal or accessory; and when that motive power ceases, every motion ceases, and the validity or invalidity, completeness or incompleteness of the act is fixed'forever. I am constrained therefore to deny probate of the paper subscribed by the testator the day of his decease. The prior will of January, 1851, has been duly proved, and must be admitted to probate, as his last will and testament.