526 THE POPULAR SCIENCE MONTHLY. 



without spectacles. Mr. Smith then affixed his own signature at the 

 request of the deceased, as an attesting witness. Mr. Wilsey, the other 

 witness, was then called in from the adjoining room, when the testator 

 said, "I want you to sign this will," Mr. Smith at the same time 

 handing it to him. While still in Smith's hand, the latter asked the 

 testator if he acknowledged it to be his last will and testament. He 

 said " Yes." Wilsey then signed, when Mr. Baskin said, " That kills 

 the other will." No conflict of evidence existed. Both witnesses 

 agreed that the signature of the testator was affixed before Wilsey 

 came into the room, and that Mr. Baskin did not expressly state in 

 his presence that he had signed the will. The surrogate said this was 

 no will, for it had not been signed in the presence of each attesting 

 witness, but the Supreme Court reversed his decree, and the Court of 

 Appeals affirmed the Supreme Court, holding : " Where the testator 

 produces a paper bearing his personal signature, requests the witnesses 

 to attest it, and declares it to be his last will and testament, he thereby 

 acknowledges the subscription within the meaning of the statute" 

 (Baskin vs. Baskin, 36 N. Y., 416). In fact, it is not even necessary 

 that the subscribing witnesses should be shown the signature of the 

 testator to the will at the time of acknowledging its execution. 



In 1866 the will of Samuel Mott came before the Surrogate of 

 Queens County, Long Island, for probate. It was contested upon the 

 ground, among others, that it had not been signed in the presence of 

 each witness, they signing after the testator but on different days, and 

 that at least one of them had not so much as seen Mr. Mott's signa- 

 ture, the document being so folded when executed as to hide the name. 

 The surrogate admitted it, however, the Supreme Court and Court of 

 Appeals affirming his decision (Willis vs. Mott, 36 N. Y., 486 ; 

 Hoystradt vs. Kingman, 23 N. Y., 372). So in the case of Ellis vs. 

 Smith, decided in 1754 (1 Vesey, Jr., 11) by Lord Chancellor Hard- 

 wicke, assisted by Sir John Strange and the Chief-Justice of the Com- 

 mon Pleas and Chief Baron of the Exchequer, it was held that a tes- 

 tator's declaration was equivalent to an actual signing in the presence 

 of the witnesses, a rule unchanged by the statute under consideration. 



These cases show that considerable latitude is tolerated under this 

 section, but that one of two facts must transpire in order to comply 

 with its terms — either an actual subscribing by the testator in the 

 presence of each of the witnesses before they sign ; or a clear, indis- 

 putable acknowledgment to each of them that the instrument has been 

 already so subscribed by him (Chaffee vs. Baptist Missionary Conven- 

 tion, 10 Paige, R. 85). Of course, in the latter case, if the subscrip- 

 tion subsequently appears wanting, such acknowledgment amounts to 

 nothing ; there is no will. 



3. The testator, at the time of making such subscription, or at the 

 time of acknowledging the same, shall declare the instrument, so sub- 

 scribed, to be his last will and testament. 



