Tyler v. Mapes

By the Court,

According to the testimony of the witness, Stanley, the execution of the will was completed when Thomas S. Tyler was called in. It had been signed and published and the requisite number of witnesses had, at the request of the testator, subscribed it. I will not say it might not have been re-executed in the presence of Thomas S. Tyler. But to constitute him a subscribing witness with the others, all the requisites to a due execution of the will must have been repeated in his presence. The testator should again have acknowledged his signature, and should have again, in some form, declared the instrument to be his last will and testament, and then have requested the witness to attest its execution. But this was not done. But for the evidence of what occurred before Thomas S. Tyler was brought in, there would be no proof at all of publication. ' What was said and done in his presence cannot be construed into a declaration of the testator that the instrument he requested him to witness was his last will and testament. Thomas S. Tyler was not, therefore, a subscribing witness, within the intent and meaning of the statute. There were in fact but two witnesses to the execution of the will.

The act of 1837 relating to the proof of wills &c., requires that at least two subscribing witnesses shall be produced and examined before the surrogate, before a will shall be admitted to probate, if there are so many living in the state, of sound mind, and not disabled from age, sickness or infirmity, from attending to be examined. There were in this state two wit*450nesses to the execution of the will, and but two. The party propounding the will for proof did not show himself excused from producing them. One only was in fact examined. The surrogate was not at liberty upon his testimony alone to establish the will and order it to be admitted to probate. The' decree must therefore be reversed, and the proceedings remitted to the surrogate of Sullivan.

Wright, Harris and Watson, Justices.]