LAST WILLS AND TESTAMENTS. 521 



tune, for he may utterly destroy its value. Unless proof aliunde is 

 obtainable, showing that the requirements of the statute were duly 

 observed, there is great probability that the will will be rejected by 

 the surrogate, and his decree sustained by appellate tribunals. 



In November, 1850, an instrument, dated February 2, 1849, was 

 offered for probate to the Surrogate of Kings County, New York, as 

 the last will and testament of Thomas Lewis. It devised all his real 

 and personal estate to his wife ; but its probate was opposed by the 

 heirs of the deceased. This document was signed in the proper hand- 

 writing of Mr. Lewis ; it had two subscribing witnesses, while attached 

 to the will and above the signatures of the witnesses was an attesta- 

 tion clause in the following words : 



" The above-written instrument was subscribed by the said Thomas 

 Lewis in our presence, and acknowledged by him to each of us, and 

 he at the same time declared the above instrument so subscribed to be 

 his last will and testament, and we, at his request, have signed our 

 names as witnesses hereto." 



On the contest, Ferris Tripp, one of the witnesses, swore that he 

 was a clerk in the store of the deceased at the date of the will, and 

 that Wing, the other witness, was also a clerk ; that he (the witness) 

 signed his name at the end of the attestation clause, at the request of 

 the testator ; that, on the occasion when he did so. Wing and he were 

 called by the deceased into his private office, where he had a paper, of 

 which he turned up so much as would allow them to write their names 

 thereon, requesting them to sign the same and add their residences ; 

 that he also then said, " I declare the within to be my free will and 

 deed " ; that this was all that was said, according to his recollection, 

 and that he and Wing then signed their names to the instrument 

 where they appeared ; that he did not then know to a certainty what 

 the instrument was, but thought it a will from the fact that the de- 

 ceased had that morning sent out and procured a blank will. On cross- 

 examination this witness testified that at the time he signed his name 

 to the instrument it was so folded or placed upon the desk that he saw 

 no part of the contents, and that neither the same nor any part of it 

 was read to him ; that he did not see the testator sign it, nor did he 

 see his signature to it when he signed as a witness. 



The other witness testified in substance that he signed his name to 

 the alleged will in the office of the deceased ; that he was unable to say 

 what occurred on that occasion, but that, according to his recollection, 

 be signed at the request of the deceased ; that he had no recollection 

 that the deceased said anything else to him at the time he signed, un- 

 less it was " to see him sign the document " ; that he did not recollect 

 that the deceased signed the instrument in his presence ; that he had no 

 recollection that Tripp, the other witness, was present when he signed, 

 and could not state anything further which occurred or was said or 

 done by the deceased on the occasion. On his cross-examination he 



