There must be a concurrence of all these four requisites to give validity to the act, and the omission of either is fatal. Neither of the four, which united make a valid execution of a will, may be done at a different time from the rest. If the instrument has in fact been signed at a previous time, then the signature must be acknowledged to the subscribing witnesses, which is deemed to be equivalent to a new signing of the instrument.[55] They cannot all be done at the same instant of time, for that is impracticable; but at the same interview, one act immediately following the other, without any interval, and without any interruption to the continuous chain of the transaction.[56]
We shall now refer to cases bearing on each of these requisites; and it will be seen that while the courts have with commendable firmness insisted upon a rigid compliance with the formula prescribed by the statute, they have never held that a literal compliance was necessary. No particular form of words is required to comply with the statute. The only sure guide is to look at the substance, sense, and object of the law, and with the aid of these lights endeavor to ascertain whether there has been a substantial compliance.
It is sometimes still a matter of controversy as to what may be considered a subscription or signing of the will at the end or foot thereof. In Tonnele v. Hall,[57] the writing of the instrument propounded for probate commenced on the first of several sheets of paper stitched together immediately below a margin, in this form: “In the name of God, Amen. I, John Tonnele, of the City of New York being of sound mind and memory, and considering the uncertainty of life, do make, publish, and declare this to be my last will and testament, in manner and form following, that is to say,”—and was continued on that and the four succeeding sheets. At the end of one of the sheets was the signature, and following was the usual attestation clause, signed by three witnesses. The next sheet was entirely blank, and was succeeded by a sheet on which was written, “Map of the property of John Tonnele in the Ninth and Sixteenth Wards, etc.” And also written on the same, “Reduced map on file in the Register’s office in the City of New York.” The map indicated the position, by numbers, etc., of various lots of land in the City of New York which the will purposed to dispose of, but it was not signed by the testator nor by the witnesses. In several clauses of the will devising the real estate, reference was made to the aforesaid map; but not to the copy of the map annexed. The point taken in opposition to the will was, that the execution of the instrument was not in conformity to the first and fourth requisites of the statute; because, as was insisted, it was neither subscribed by John Tonnele, nor signed by the witnesses at the end of it. It was contended, that as the map annexed should be regarded as a component part of the instrument, at the time of its execution, and as it was written on the last sheet of the papers composing the instrument, it was necessarily the end of the instrument, where the subscription by the testator and the signing of the witnesses should have been made. It was held by the Court of Appeals that the will was subscribed by the testator at the end of the will, within the meaning and intent of the statute, and that the execution thereof was valid.
In the case of the will of Catharine Kerr before the Surrogate of New York,[58] the closing portion of the will and the signature were as follows:
“To the children of Mary Dow, residing in Ireland in County Kilkenny, Give and bequeath two hundred dollars to be equally divided between them. If there be a balance, my executors will divide it among my relations that are not herein mentioned.
Catherin Keer.
“I hereby appoint Mich’l Phelan of 2nd st., and John Kelly of 9th. st., as my executors to this my last will and testament.
Witnesses,
R. Kein,
Matthew M. Smith.”
“I hereby order my executors to pay all my lawful and debts & funeral expenses—should it please the Almighty now to call me. This they will do before paying any legacy above mentioned.