in Osborn v. Cook, 11 Cush. 532, 536; Tilden v. Tilden, 13 Gray, 110; Randebaugh v. Shelley, 6 Ohio St. 307. Where it did not appear whether the testator did or did not sign the will or acknowledge the signature to be his in the presence of the witnesses, but the testator, after his name was signed to the will, declared it to be his will and asked them to sign it as witnesses, and the attestation clause was in the handwriting of the testator, and declared that it was signed in the presence of the witnesses, the certificate was taken as true, and as proof of signing in their presence. In re Will of Alpaugh, 8 C. E. Green (N. J.), 507.] But it is not sufficient merely to produce the paper to the witnesses, where it does not appear that the signature of the testator was affixed to it at the time. 4 Notes of Cas. 181, per Sir H. Jenner Fust; In the Goods of Ashton, 5 Notes of Cas. 548; [Dunlop v. Dunlop, 10 Watts, 153.] For another instance of an insufficient acknowledgment of the signature, see In the Goods of Summers, 2 Rob. 295; S. C. 7 Notes of Cas. 562. [In New Jersey, where the statute for devising real estate (1714) required that the testator should sign his name in the presence of the witnesses, it has been held that his acknowledgment of his signature is not a compliance with the act. Den v. Milton, 7 Halst. 70; Combs v. Jolly, 2 Green Ch. 625; Mickle v. Matlack, 2 Harr. 86. For the present law of New

Jersey upon this point, see stat. 1851, concerning wills. In re McElwaine, 3 Green (N. J.), 499. See, also, Butler v. Benson, 1 Barb. 526; Adams v. Field, 21 Vt. 256; Rosser v. Franklin, 6 Grattan, 1; Hoffman v. Hoffman, 26 Ala. 535.]

(0) Ilott v. Genge, 3 Curt. 160 (affirmed in privy council, 4 Moore P. C. 265); Hudson v. Parker, 1 Robert. 14. See, also, Doe v. Jackson, cited per curiam in 3 Curt. 181, 182, 184; S. C. nomine Faulds v. Jackson, before the privy council, 6 Notes of Cas. Suppl. p. 1; In the Goods of Trinder, 3 Notes of Cas. 275; [Ela v. Edwards, 16 Gray, 92; Hogan v. Grosvenor, 10 Met. 56; Tilden v. Tilden, 13 Gray, 110; Osborn v. Cook, 11 Cush. 532.] Where a will has been executed in the presence of two witnesses, and, in addition to their signatures, the signature of a third person, who is also residuary legatee, appears at the foot of the will, the court will receive evidence to explain why such signature was written, and if it be satisfied that it was not written with the intention to attest the signature of the deceased, it will order it to be omitted in the probate. In the Goods of Sharman, L. R. 1 P. & D. 661. [But if the court is satisfied that the witness signed with intent to attest, that will be sufficient to make him an attesting witness, although he also signed in the character of executor. Griffiths v. Griffiths, L. R. 2 P. & D. 300.]

(p) In the Goods of Hammond, 3 Sw.

& Tr. 90. But a will was written across the second and third sides of a sheet of note paper, the lower part of such sides being left blank, and the attestation clause and the signature of the testator and witnesses were written at the back of the will, and, therefore, across the top of the first and fourth sides of the paper, and the testator wrote the will in the presence of the witnesses immediately before he executed it, it was held by Lord Penzance that the will was well executed under the stat. 15 & 16 Vict. c. 24. In the Goods of Archer, L. R. 2 P. & D. 252.

(q) It seems to be doubtful whether any publication as distinguished from attestation, was necessary for a will of land under the statute of frauds. See the judgment of Lord Denman, in Doe v. Burdett, 4 Ad. & El. 14, and the observations of the judges in the same case on error, in the exchequer chamber, 9 Ad. & El. 936; 1 P. & D. 670, and in the house of lords, 6 M. & Gr. 386; and, also, White v. Trustees of the British Museum, ante, 87, note (1). [It is sufficient publication in Maine, Massachusetts, Delaware, Vermont, Virginia, and South Carolina, if it be made to appear that the testator at the time of executing the instrument, knew it to be his will and intended it as such, and was fully apprised of its contents. Rice J. in Cilley v. Cilley, 34 Maine, 162, 164; Swett v. Boardman, 1 Mass. 258; Dewey v. Dewey, 1 Met. 349; Smith v. Dolby, 4 Harring. 350; Dean v. Dean, 27 Vt. 746; Beane v. Yerby, 12 Grattan, 239; Verdier v. Verdier, 8 Rich. (S. Car.) 135; Watson v. Piper, 32 Miss. 451; Hogan v. Grosvenor, 10 Met. 54. This point is fully discussed by Thomas J. in Osborn v. Cook, 11 Cush. 532. As to publication in New Jersey, see Den v. Milton, 7 Halst. 70; Mickle v. Matlack, 2 Harr. 87; Combs v. Jolly, 2 Green Ch. 625; Rev. Sts. N. J. 1847, p. 363; Nixon's Dig. 863. In Indiana, see Turner v. Cook, 36 Ind. 129.]

No publication was ever necessary for a will of personal estate. See ante, 84. [But to authorize a surrogate in New York to admit a last will to probate, it must appear that he executed and attested in the following manner: 1st. Subscribed by the testator at the end of the will; 2d. Such a subscription shall be made in presence of each of the attesting witnesses, or shall be acknowledged to have been so made to each of the witnesses. 3d. When the testator subscribes the will, or makes the acknowledgment, he shall declare the instrument so subscribed to be his last will and testament. 4th. There shall be two witnesses who shall sign at the end of the will, at the request of the testator. 3 R. S. 144, § 35, 5th ed. An actual publication of the will, as a will, in the presence of the subscribing witnesses, is thus made indispensable; and this publication is an act independent and distinct from subscription or acknowledgment of subscription. Baskin v. Baskin, 36 N. Y. 416; S. C. 48 Barb. 200; Heyer v. Berger, 1 Hoff. Ch. 1; Brinkerhoff v. Remsen, 8 Paige, 488; S. C. 26 Wend. 325; Chaffee v. Baptist Miss. Conv. 10 Paige, 85; 2 Rev. Sts. N. Y. 63, § 40; Torry v. Bowen, 15 Barb. 304; Nipper v. Groesbeck, 22 Barb. 670; Abbey v. Christy, 49 Barb. 276; Lewis v. Lewis, 13 Barb. 17; S. C. 1 Kernan, 220; Newhouse v. Godwin, 17 Barb. 236; Gilbert v. Knox, 52 N. Y. 125; Harder's Will, 1 Tuck. (N. Y. Sur.) 426; Harris's Will, 1 Tuck. (N. Y. Sur.) 293. The publication must be in the presence of both witnesses, by declaration that the instrument is the testator's last will and testament. Seymour v. Van Wyck, 2 Selden, 120; Tyler v. Mapes, 19 Barb. 448. There must at least be some act or declaration recognizing the instrument, by the testator, as his will, indicating that he desires the witnesses to subscribe it as such. Hunt v. Mootrie, 3 Bradf. Sur. 322; Tunison v. Tunison, 4 Bradf. Sur. 138; Ruther

ford v. Rutherford, 1 Denio, 33; Nipper v. Groesbeck, 22 Barb. 670; Moore v. Moore, 2 Bradf. Sur. 261. Publication in the presence of the witnesses is required in North Carolina, New Jersey, and Arkansas. Den v. Milton, 7 Halst. 70; Den v. Matlack, 2 Harr. 86; Morehouse v. Cotheal, 1 Zabr. 480. No particular form of publication is given, or seems to be required in any of these states, provided it amounts in substance to a declaration, that the instrument is the last will and testament of the testator. See Remsen v. Brinkerhoff, 26 Wend. 324; Whitbeck v. Patterson, 10 Barb. 608; Brown v. De Selding, 4 Sandf. 10; Cilley v. Cilley, 34 Maine, 164. In Coffin v. Coffin, 23 N. Y. 15, it is said that the declaration, that the instrument is the testator's last will and testament, need not be made in any particular form. Any communication of the testator to the witnesses whereby he makes known to them that he intends the instrument to take effect as his will, will satisfy the requirement. In that case both witnesses were present, and one of them asked the testator if he wished him to sign or witness the will, and the testator an swered in the affirmative. This was held to be a good publication. The judge delivering the opinion said: "There can be no doubt that such a declaration can be made in answer to a question, or even by a sign. It is only required that it be understandingly made." Shaw C. J. in Bayley v. Bailey, 5 Cush. 245, 259, 260. In Lewis v. Lewis, 1 Kernan, 226, Allen J. said: "To satisfy the statute, the testator must in some manner communicate to the attesting witnesses, at the time they are called to sign as witnesses, the information that the instrument then present is of a testamentary character and that he then recognizes it as his last will

and testament, by some assertion or clear assent in words or signs; and the declaration must be unequivocal. The policy and object of the statute require this, and nothing short of this will prevent the mischief and fraud which were designed to be reached by it. It will not suffice that the witnesses have elsewhere, and from other sources, learned that the document which they are called to attest is a will, or that they suspect, or infer from the circumstances and occasion that such is the character of the paper. The fact must in some manner, although no particular form of words is required, be declared by the testator in their presence, that they may not only know the fact but that they may know it from him, and that he understands it, and, at the time of his execution, which includes publication, designs to give effect to it as his will; and to this, among other things, they are required by statute to attest." See Bagley v. Blackman, 2 Lansing, 41; Smith v. Smith, 2 Lansing, 266; 40 How. Pr. 318. In Trustee of Auburn Theological Seminary v. Calhoun, 62 Barb. 381, it was testified by the subscribing witness to the execution of a will, that she saw the deceased sign his name at the end of the paper; that he said he wanted her to sign her name to a paper, and she did so; but did not hear him say that it was his last will and testament; that she signed it in his presence; it was held that this testimony did not show that the statute had been complied with. See McKinley v. Lamb, 64 Barb. 199. In this the law in New York differs from that in other states. See ante, 87, note (1).]

(r) Sugden's Essay, 140, citing Trimmer v. Jackson, 4 Burn E. L. 130; British Museum v. White, 3 M. & P. 689. (r1) [See ante, 87, note (1).]