In re the Probate of the Will of Harder

Although this case has been so ably *429and thoroughly reviewed and argued by the learned counsel retained in it, I cannot see any. doubt in the testimony. The simple question is whether the words addressed by the decedent to and heard by both the subscribing witnesses, “ Will you witness my will ?” or “ I want you to witness my willconstitute a sufficient acknowledgment, declaration and rogation.

The rulings of our Courts on- this question have been quite uniform, and very liberal. It has been held that “ any communication of the idea that the instrument is his will, will meet the object of the statute.” (Seguine v. Seguine, 2 Barb. S. C., p. 385.) This knowledge of the nature of the transaction, “ must be evinced with reasonable definiteness,” by the party executing the will. (Hunt v. Mootrie, 3 Brad. R., p. 322); “ so that the testamentary character of the instrument is shown to have been communicated by the testator to the witness.” (Ex. parte, Beers, 2 Brad. R., p. 162.) “ The law requires that the testator shall communicate to the witnesses that it is his will, and he desires them to attest it.” (Moore v. Moore, 2 Brad. R., p. 261.) And “unlimited latitude of expression may be used, if it convey the proper meaning.” (Ham v. Case, Redfield’s Sur. R., p. 307; see also, Tunison v. Tunison, 4 Brad. R., p. 138; Vaughan v. Burford, 3 Brad. R., p. 78; Van Hooser v. Van Hooser, Redfield’s Sur. R., p. 365; Whitbeck v. Patterson, 10 Barb. S. C. R., p. 610; Torrey v. Bowen, 15 Barb. S. C. R., p. 304; Nipper v. Croesbeek, 22 Barb. S. C. R., p. 670; Coffin v. Coffin, 23 N. Y. R., p. 9; Tarrent v. Ware, 25 N. Y. R., p. 422; Peck v. Cary, 27 N. Y. R., p. 9; Nelson v. McGiffert, 3 Barb. Ch. R., p. 158.)

In this case it does not affirmatively appear that each or either subscribing witness saw the decedent subscribe his name to the instrument propounded. One of them is not sure that he did; the other is sure that he did not. As a question of fact, I conclude that the decedent did not sign it in their presence.

*430It has been held, in many cases, in onr Courts, and appears to be settled law, that a separate acknowledgment of the signature of the testator is not necessary where the instrument is already signed by him when he acknowledges the instrument to be his will. The greater includes the less; and his acknowledgment that this instrument is his will is held to include and dispense with the acknowledgment that the signature appended to ■' it is his signature.

Willard on Executors, section 102, says:

“ The result of the cases seems to be that where the testator produces the will, with his signature visibly apparent on the face of it, to the witnesses, and requests them to subscribe it, there is a sufficient acknowledgment of his signature.”

This has been held in the eases of Jauncey v. Thorne, 2 Barb. Ch. R., p. 40; Robinson v. Smith, 13 Abbott's Pr. R.,p. 359; Baskin v. Baskin, N. Y. R., p. 416; Willis v. Mott, 36 N. Y. R., p. 490; and in many cases in the English books, in construing a statute quité similar to ours.

Decree of probate.