LAST WILLS AND TESTAMENTS. 527 



Here, again, nice questions have arisen. What is a declaration that 

 " this is my last will and testament " ? Is it sufficient that the ques- 

 tion be asked me and that I assent thereto by " yes " or a nod ? If I 

 say " This is my free will and deed," have I fulfilled the requirement, 

 or must I use the precise words " This is my last will and testament " ? 

 These and kindred inquiries have perplexed the courts, and weary 

 litigants have been forced to possess their souls in patience, awaiting 

 the interpretation of blunders which could easily have been avoided in 

 this particular of execution. The courts say it is not imperative that 

 the word " declare " should be employed — I " acknowledge " this paper 

 to be my last will and testament is enough (Seguine vs. Seguine, 2 

 Barb., 385). But a mere nod of assent to the inquiry, " Is this your 

 last will and testament ? " observed only by one of the persons pres- 

 ent, is not enough (Burritt vs. Silliraan, 16 Barb., 198), while an an- 

 swer " yes " to the inquiry has been held sufficient (Coffin vs. Coffin, 

 23 N. Y., 9). To say " This is my free will and deed " is not good, 

 for, as above appeared, the Court of Appeals has held that Thomas 

 Lewis failed to acknowledge his will, although he used these particular 

 words, and rejected his final testamentary disposition as a nullity. 

 What apparently could be easier than to say " This is my last will 

 and testament " at the proper time and under the proper circumstances ? 

 yet that many fail to either use these simple words, or to know the pro- 

 prieties of time or circumstance, is shown by the foregoing cases. 



4. There shall be at least two attesting witnesses, each of whom 

 shall sign his name as a witness at the end of the will, at the request 

 of the testator. 



A will with but one witness is bad on its face — it is no will ; it is 

 a plain failure to observe an all-important formality, but questions 

 " What is a signing by a witness ? " " Where is the end of a will ? " and 

 " What constitutes a testator's request ? " have been before the courts 

 for determination. To answer the first two inquiries briefly, it is 

 enough to state that the same rules which apply to the testator's sig- 

 nature and to the place of his subscription apply with equal force to 

 witnesses. A witness's mark is good (Meehan vs. Rourke, 2 Brad., 

 385 ; Morris vs. Kniffen, 37 Barb., 336), and he should sign after the 

 testator, immediately at the conclusion of the instrument. Concerning 

 the third " inquiry " as to the request, some contrariety of opinion has 

 existed as to what shall be deemed sufficient. The following cases are 

 in point : 



A request may be implied ; it need not be in express terms, as, if 

 the testatrix be told in the presence of the witnesses that they have 

 come to witness her will, and she then bow assent and they sign it, 

 it is a request (Brown vs. De Selding, 4 Sand., 10 ; Peck vs. Carey, 27 

 N. Y., 9). Handing a will to the witnesses, at the same time evincing 

 a desire to have them sign it, is enough (Gamble vs. Gamble, 39 Barb., 

 373). But a mere request to sign, without in some way disclosing the 



