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will. Q. He asked you to sign it, didn't he? A. Yes. Q. He signed it in your presence, didn't he? A. No, I didn't say that. I signed it in his presence, what it was I don't know. Q. He acknoledged it was his will? A. He said he wanted me to sign as a witness to his will." He was then asked: "Q. What was your position in this hotel, Doctor? A. I was the doctor's helper in his medical practice; was there as his associate for years, helped him with his practice — patients. Q. You also assisted in the running of the hotel, didn't you? A. Very little; I hadn't much to do with the hotel. Q. You made out the payrolls, didn't you? A. Yes, I was treasurer of the company and took charge of the money. Q. Have you got a claim against this estate? Mr. Murray: I object to that also. (Objection sustained exception.) Q. Dr. Jones was a rheumatic specialist, I think you have testified? A. He was. Q. He had a secret cure for rheumatism, didn't he? A. I don't know about that. Q. You feel rather bitterly towards Dr. Jones, don't you? A. No. Q. Doctor, didn't Dr. Jones promise to give you his formula, his rheumatic remedy? Mr. Murray: I object to that. The Court: Objection sustained. * Q. When you signed this paper you did not know whether it was a deed to property? A. I didn't know what it was. Q. Didn't know whether it was a general release? A. I didn't know."

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In regard to his affidavit before the surrogate's assistant at the time the will was admitted to probate he says that he "looked it over and signed it. Then we went over to a desk and some man asked me some questions and I swore to it."

The court, while it went through the form of leaving the question to the jury, as a matter of fact, directed a verdict for the plaintiff. He undertook to leave certain questions to them, but he directed the answer to each one of them and then said: "I have said that all those questions are to be answered by you in the negative. Let me modify that instruction to this

extent, if you shall find that Dr. Bruyere's evidence is not to be credited as he gave it to you on the witness stand to-day, but on the contrary the deposition which he swore to and signed at the time when the will was admitted to probate is accepted by you as the true version of what occurred at the time of the execution of the will, then you may answer each and every one of these questions in the affirmative."

He then refused to charge a request couched in the language of section 2612 of the Code of Civil Procedure (as amd. by Laws of 1914, chap. 443). He declined to charge that the testator must be presumed by the jury to have known the requirements of law for the valid execution of a will. He declined to charge" that the fact that this will was found in the safe deposit vault of the testator is a very important consideration on the issue of fact of the will being his last will and testament." He declined to charge "that the fact that this will was in the handwriting of the testator is strong indication of the fact that the will was his will." I do not think appellants had a fair trial. There was a question of fact. In support of the proposition that the will was duly executed there were the facts that it was in the handwriting of the decedent, signed by him at the end thereof with a proper attestation clause, with two witnesses thereon whose signatures were proven; that it was found upwards of six years after its execution in the safe deposit vault of the testator; that at the time of probate a subscribing witness had verified an affidavit before the surrogate's assistant containing facts which fully warranted the admission of the instrument to probate and had answered questions thereon; that this witness upon the stand a year and a half thereafter, and seven years and nine months after the date of the instrument, and without a clear identification of the time of the execution thereof while testifying to the fact that he and the other witness had each been requested to sign the document as a witness by the testator said that no other words were said by him

and that he did not declare the instrument to be a will or acknowledge his signature thereto, and yet this witness having also sworn that he never had witnessed any other will and that he did not know that this was a will at the time he witnessed it, subsequently, under cross-examination, admitted that he had witnessed a will for the decedent in 1893 and that on that occasion the decedent had said it was his will and that he wanted him to sign as a witness to his will and that he signed in his presence. Under these circumstances wide latitude should have been afforded to the cross-examiner and it was error not to permit the questions propounded to the witness, tending to show interest and bias, to be answered. And the question of fact should have been fairly presented to the jury instead of a verdict being in effect directed.

In Wyman v. Wyman (118 App. Div. 109; affd., 197 N. Y. 524) this court upheld a will which two subscribing witnesses attempted to destroy, they both having testified that at the time they signed the paper they did not know it was a will; that the signature of the decedent was not upon it when they signed it; that their signatures were not made in the presence of each other, and although each swore he signed at the request of the decedent, at the time of the signing he did not declare it to be his last will and testament. That will, like this, was in the handwriting of the decedent, contained an attestation clause, and was found after the testator's death in his safe. We cited Matter of Cotrell (95 N. Y. 329), where there was also a holographic will, but where the two witnesses purporting to have signed that will as subscribing witnesses not only testified that none of the formalities required by the statute were complied with in its execution in their presence, but also positively denied that either of them was present at its execution or signed the attestation clause. Yet, nevertheless, the will was sustained.

In Matter of Sizer (129 App. Div. 7) from the date of the

will to the hearing on the probate was eight years and seven months. The first and second witnesses testified that they had no recollection of signing the will, or of being asked to, or of anything connected with it, but acknowledged their signatures to be genuine. The third witness testified that the testator came to his house and asked him to go across the street to his drug store and witness his signature, and that he went and signed a paper under the names of the two preceding witnesses; that he did not know what the paper was and that the testator did not say. He did not give the date of this occurrence; how long it was after the other witnesses signed, or even if it was the same day. This will was also holographic. The opinion cites a large number of cases and the Appellate Division, Second Department, unanimously upheld the will.

In Matter of Abel (136 App. Div. 788) the will did not contain a formal attestation clause and all three of the subscribing witnesses were dead and the ground of attack was that the evidence presented to prove the will did not make out even a prima facie case of due execution under the statute. But nevertheless the will was sustained. The court said among other things: "All the authorities, however, agree that the existence of an attestation clause is one of the circumstances attending the execution of the will from which arises a very strong inference of fact that due execution was had, the underlying reason being that all persons are presumed to know the contents of what they sign and are likewise presumed to sign in good faith. Thus, when a signed attestation clause is found on a will, and recites due execution, that fact is deemed a basis. for a strong inference that there was an execution of the will according to the recitals."

I think there was a question of fact which was not fairly presented and that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

INGRAHAM, P. J., LAUGHLIN, SCOTT and SMITH, JJ., con

curred.

Judgment reversed, new trial ordered, costs to appellants to abide event.

SILAS DECKER and JOHN V. DECKER, Appellants, v. CARRIE M. VREELAND and Others, Individually and as Executors, etc., of CONRAD VREELAND, Deceased, Respondents, Impleaded with JACOB R. DECKER and Others, Defendants.

(Supreme Court, App. Div., Second Department, December 17, 1915.)

DECEDENT'S ESTATE-DEVISE TO INDIVIDUALS IN PERPETUITY FOR CHARITABLE USE DEVISE EXCEEDING ONE-HALF OF TESTATOR'S ESTATE-DECEDENT ESTATE LAW, SECTION 17, CONSTRUED.

A devise to trustees in perpetuity, the income to be applied to the maintenance of churches, ministers and missionaries of a certain religious denomination located within certain counties, does not offend section 17 of the Decedent Estate Law, although the gift exceeds one-half of the testator's estate.

Said statute limits the amount of devises and bequests only where the gift is to the charitable institution itself, or, it seems, to trustees who are to turn over the corpus to such charitable institution. The statute does not apply to a devise to individuals for charitable uses.

APPEAL by the plaintiffs, Silas Decker and another, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Kings on the 24th day of March, 1915, dismissing the complaint upon the decision of the court after a trial at the Kings County Special Term in an action for partition.

Merle I. St. John, for the appellants.

William D. McNulty, for the respondents Walter D. Hoag and others.