There is a motion in this matter to open the evidence, and allow the proponents to put in additional proofs as to the formalities of execution.
The decedent, Smith, it appears, requested his family physician to draw up his will for him, the doctor having “ deemed it his duty to tell him that he would never get well.” The doctor received his instructions, “put them down in pencil,” then wrote them out and brought to Mr. Smith, in his own handwriting, the paper now propounded as the will. The doctor also invited Mr. John G. Sperling to attend at Mr. Smith’s house as a witness.
Dr. Ranney, on his direct examination, testifies as follows as to the execution of the alleged will: “The subscription of the name of said decedent to the instrument now shown to me, was made by the decedent, at the city of New York, in the presence of myself and
*228John Gr. Sperling, the other subscribing witness. At the time of making such subscription, the, said decedent declared the said instrument, so. subscribed by him, to be his last will and testament, and I thereupon signed my name as a witness at the end of such instrument, at the request of the said decedent, and in his presence.” “ I also saw . said John G-. Sperling, the -other attesting witness,, sign his name as a-witness at the end of said will, and know that he did so at the request of said decedent, .and, in his presence.” ... . . I
And Sperling swears, on the direct, to the same identical signatures, declarations, publications, and requests, at .the time of the execution, of the alleged will.
Upon their cross-examination, however, these two;witnesses not only overturn, all, their, testimony as to the formalities of the execution, but concur in swearing positively to the omission of some of the most vitally important ones. Eanney says: “ After I had read it.” (the .will), “ he” (the testator) “ said it was all correct, and then signed it; I am not positive about the exact words he used'; this is all I recollect of the conversation had at the ..time- of . the execution of the will.” Again, he says: “ At the time of both the- execution, of the ydll and of the .codicil,:all that was said,, to my recollection, on the part of the testator was, that his will and his codicil were correct.” And ' Sperling says, on his cross-examination.: “ The will was .then brought forward, the preparations were made, and Mr. Smith was moved, with the chair, up to the table, and signed the will; I then witness.ed.it;,- Mr. Smith.said nothing about the contents of the will; I can’t give his .exact words, but the conversation, before the will' was executed, was to the -effect that that paper was his will-; , he said nothing when he signed it.”
Brought to the- test of the cross-examination, we here rfind that all proof, of the formal publication of the paper .as the last will and testament of the testator,..and.-of a rogation by him. to. the -witnesses to witness it as such, *229 Vanishes away. The formal requisites to the execution óf a will, by which-the statute designed to make "that execution differ from the signing and witnessing of an agreement, bill of sale or deed, are shown to have been ' omitted; for if they had been observed, the - fact must have been remembered. But the inference 'is overwhelming that they-were not observed-; there was no professional- man of the law present, nor had any been consulted as far-as appears, in relation to the instrument; nor do we find that these persons, unskilled in the law, even consulted the statute, to see what the requisites might be. •The cross-examination shows the proceeding to have been similar, in the contemplation of all present, to the execu- tion of a deed. ...
Subsequently, at the like request of the decedent, Dr. Ranney also drew up a codicil to this will; and the same Hr. Sperling, together with Hr. "Win. "Franklin Hott, were called in to witness it. These two witnesses "swear, on their direct depositions, with absolute certainty, as to the observance of all the legal formalities; • but, as before, they contradict themselves with equal positiveness when cross-examined. Sperling says, on cross-examination : “ He ” (Smith) “ did sign it; I saw him sign his name to this codicil; I don’t think he made any remark in regard to the paper at all.” And Hott, on his cross-examination, says : “ He ” (Smith) “ signed the codicil; I saw him sign it; at the time he signed it I did not hear him say anything; after he had signed it, I signed it and then left.” There could scarcely "be a more complete proof that there was no publication- or rogation at all.
The only question that could by - any possibility be raised in this case," would be as to the relative -weight of the direct and the cross-examination. " There can be no legal doubt on that subject. The blank deposition, copies of , which are kept in the Surrogate’s office, was1 filled np by a clerk and presented to the witnesses, and this constituted the direct-examination. But the eross-examina*230tion was conducted by counsel, by question and answer, and the witnesses, deprived of the benefit of the leading and suggestive language of the printed deposition, manifested by their replies, the utter omission, or perhaps their equally fatal forgétfulness, of the publication and rogation.
The probate of the will and codicil denied. '