Opinion of the Court, per RUGER, Ch. J. The determination of the question of fact involved in the inquiry as to whether a will has been properly executed or not is governed by the same rules which control in the trial of other questions of fact. The proponent has the affirmative of the issue, and if he fails to convince the trial court by satis factory evidence that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will. It would undoubtedly have been competent for the trial court in this case to have denied probate to the will in question upon the evidence before it, and in that event we should have been bound by its decision. This, however, it has not done, but on the contrary has found that the will was duly executed. Upon referring to the evidence in the case, we certainly find quite an unusual and extraordinary condition. The two persons purporting to have signed this will as subscribing witnesses, not only each testify that none of the formalities required by the statute were complied with in its execution in their presence, but also positively deny that either of them was present at its execution or signed the attestation clause. No greater weight can be given to that part of the evidence of these witnesses wherein they deny that the several formalities required by the statute were unperformed in the execution of this will, than to their more important testimony that they were not present on the occasion and did not sign the attestation clause. It follows of course that if they do not recollect or perversely refuse to testify to the interview itself, that they would also deny the several incidents which accompanied such an interview. If, therefore, it was established by competent evidence that these witnesses were mistaken as to the fact of acting as witnesses to the execution of this will, it would almost necessarily follow that they were also mistaken in their testimony as to the several particulars occurring at the time of such signing. "If so important a fact as the signature of their names as witnesses has escaped recollection, the accompanying incidents must have shared the same fate." "The denial of the principal event necessarily involves all the details in the same result." Opinion of the Court, per RUGER, Ch. J. (Peebles v. Case, 2 Bradf. 236.) Upon looking into the evidence we find that it was in proof that the testator boarded and lodged with the alleged subscribing witnesses (who were husband and wife) not only at the time the will purported to have been executed, but had done so for several years previous thereto. That the husband had been a subscribing witness to a will previously executed by the testator, and that the will in dispute, apparently properly executed, was found among the papers of the deceased after his death. It also appeared that the will, as well as the attestation clause, was wholly in the handwriting of the testator, and also bore his undoubted signature at the end thereof. The testator declared during his last sickness that the will executed as he had described it was either among his papers or that he had given it to his executor. A bag containing the testator's papers, and among which was the will in question, was produced by the executor at a meeting of the testator's relatives, including the contestants, held at such executor's house on the day of the testator's death, and its contents were then for the first time made known to the parties interested by one of such relatives, who read it in the presence of the persons there assembled. Specimens of the handwriting of each of the subscribing witnesses were properly put in evidence on the trial, and from a comparison of such specimens with the signatures of the witnesses to the attestation clause, experts testified that such signatures were respectively in the genuine handwriting of such witnesses. But little is disclosed by the case with reference to the occupation, condition or character of the testator; but it does appear that he was a bachelor about fifty years of age and possessed of property of the value of about $12,000; that he had been for some time afflicted with a disease from which his death within a short period might reasonably have been anticipated. The will in question was the second made by him within a period of about five years, and the subject of a testamentary disposition of his property. had obviously for some years been within his earnest contemplation. The prior will, duly canceled, was put in evidence on the SICKELS VOL. L. 43 Opinion of the Court, per RUGER, Ch. J. trial, and although its contents do not appear in the record, it was proved to have been executed in accordance with the forms prescribed by the statute. The surrogate has found as a fact upon conflicting yet competent evidence, that the subscribing witnesses to the will in question in fact signed the attestation clause. We thus have an holographic will, not only properly signed and executed by the testator, but also signed by the witnesses, and appearing upon its face to be entirely regular, and purporting to have been executed with all of the formalities and in the manner required by the law to make a good and valid will. The witnesses to the will have, by signing the attestation clause, certified to facts taking place upon its execution, directly conflicting with the evidence given by them upon the trial. To believe this evidence requires us to suppose that the testator deliberately forged the names of witnesses to his will at a time and under circumstances when it was just as convenient for him to have obtained their genuine signatures thereto. Upon this evidence the surrogate has refused to give credit to their testimony, and must, we think, necessarily have found, for reasons appearing sufficient to him, that none of the evidence. given by them was entitled to belief. While no motive or reason appears upon the face of the evidence incorporated in the record before us, for imputing corruption or perjury to the subscribing witnesses in giving such evidence, yet to believe what they testify to on the subject involves consequences so unnatural and improbable that we are constrained to hold that the surrogate was justified in discrediting their testimony. The affirmative evidence tending to show an omission on the part of the testator and witnesses to comply with the requirements of the law, in the execution of the will, having been thus discredited by the court below, it only remains to determine whether there was, within the rule, sufficient evidence of the facts to authorize the surrogate to find the due execution of the will. It would seem from the language of the Code that proof of Opinion of the Court, per RUGER, Ch. J. the handwriting of the testator, and of the subscribing witnesses, to a proper attestation clause, was regarded as the most important and conclusive fact on the trial of an issue. as to a proper execution of a will. Such evidence, in connection with other circumstances tending to prove its due execution, would seem, within all the authorities, to justify a decree admitting it to probate, even against the positive evidence of the subscribing witnesses. It was always considered to afford a strong presumption of compliance with the requirements of the statute, in relation to the execution of wills, that they had been conducted under the supervision of experienced persons, familiar not only with the forms required by the law, but also with the importance of a strict adherence thereto. (Chambers v. Queen's Proctor, 2 Curteis, 415; In re Kellum, 52 N. Y. 519; Gove v. Gawen, 3 Curteis, 151; Peck v. Cary, 27 N. Y. 9.) We think that that presumption also arises in this case. The testator had not only once correctly gone through the ceremony of executing a will, but by drawing the attestation clause in question he had at the time necessarily brought before his mind each one of the conditions imposed by the statute as necessary to its valid execution. It is quite unreasonable to suppose that such a person having drawn and signed a will, and having added thereto a proper attestation clause, should have provided witnesses therefor, and required them to sign a certificate to the effect that each of the required formalities had then been observed, without also providing for their actual performance. He had knowledge of the necessity of the act required, to the validity of the business he was then transacting, and to hold that he omitted it would oblige us to ascribe to him the intention of performing a vain and useless ceremony at the expense of time and labor to himself and the commission of a motiveless crime. The presumptions arising from the certificate of the subscribing witnesses, and the supervision of an experienced person that the requisite formalities were complied with, are fortified by the acts and conduct of the testator. Nearly three years elapsed between the date of the will and the death of the testator, and Statement of case. he had, therefore, ample time and opportunity to supply any defects in its execution, if any existed, but at the last moment, when the subject of a will was brought to his attention, he evidently supposed that he had made a valid testamentary disposition of his property. It also appears that it was executed while the testator was living in the family of the alleged witnesses; that one of them had formerly acted in a similar capacity for him, and that they were both, persons who for convenience, as well as from their relations to the testator, would naturally have been selected as witnesses to a will drawn by himself, and whose execution he personally supervised. We think the various circumstances to which we have referred, in connection with the full and regular attestation clause in the handwriting of the testator, proved to have been signed by the witnesses, were sufficient to authorize the finding by the court below establishing the will. Of course no controversy can arise in this case over any question as to the real intention of the testator in the disposition made by this will of his property, for not only were his wishes deliberately formed, but they are recorded in his own handwriting, which implies care and deliberation on his part in framing its provisions and directions. It is the duty of the court to carry into effect a testator's intentions when they can be discovered, provided they do not contravene any provision of law. It follows from these views that the judgment appealed from should be affirmed. All concur, except RAPALLO, J., not voting. 35 340 109 478 95 340 138 624 95 340 150 363 In the Matter of the Accounting of JOHN CONSALUS, as Executor, etc. Where, after the making of a loan, a promissory note was given by the borrower to the lender for the sum loaned, under an agreement that the |