ERRATUM.

In the case of Lucusterine Fertilizer Company agt. Stilwell (ante, page 152), in the second paragraph of head-note and first line read "Royal U.;” S. C. (page 153), in the first line of the opinion read "Royal U. ;" and in the third line from top of page 153, read "H. C. Gardiner."

PRACTICE REPORTS.

SUPREME COURT.

JOHN MORRIS and another agt. EDMUND J. PORTER and others.

Will-execution and publication thereof — what proof sufficient - Devise — when void for illegal suspension of alienation.

Where M., about to execute her will, sent for B. to be a witness thereto, who, when he came into the presence of M., the will lying on the table before her, was asked by P., who had written the will, to sign it as a witness to her will, such request being made in the hearing of M., B. then signed the will as a witness in the presence of M., who said, "thank you;" the witness B. testifying that he did not see M. sign the will, and could not say whether or not her signature was to the will when he signed it, the other witness, P., testifying that M. signed the will in the presence of all the witnesses:

Held, that the positive recollection of one witness will not be overcome by the non-recollection of the other, and that the certificate of a deceased witness that the testatrix "had signed, published and declared the instrument to be her last will and testament in the presence of the witnesses," should be received as evidence and have a controlling influence under the circumstances of this case; and that it thus appearing that the signature of M. was to the will when B. signed as a witness, the execution of the will was sufficiently proven. The will contained a clause in these words "I do hereby give and bequeath the income, or incomes, arising from all my real estate to my children living at the time of my decease to have and to hold the same during the term of each of their natural lives; and at the decease of my said children I give and bequeath to my grandchildren all my said real estate, share and share alike, to have and to hold the same forever. And it is my will and desire that my said real estate is not to be sold during the lives of said children."

Held, that the devise was void for the reason that, thereby, the absolute power of alienation of the real property was suspended for a longer period than the continuance of two lives in being at the death of the testatrix.

Special Term, May, 1876.

Morris agt. Porter.

THIS is an action for the construction of the will of Anne Morris, deceased, late of the county of Kings, and for the partition of her real estate in the event that the devise made thereof should be held void.

The testatrix made a will in the year 1867 in which she made an attempted disposition of the real estate in question; and afterward, and in the year 1871, she made another will by which she sought to revoke the will of 1867.

The surrogate of Kings county held that the will of 1871 was not properly executed and admitted the will of 1867 to probate. Evidence was given in this action by the parties as to the execution of the will of 1871 which, as it affected real estate, was here sought to be established. The facts appear by the opinion.

Varnum, Turney & Harrison, for plaintiffs.

D. & T. McMahon and E. J. Porter, for defendants Porter and others.

A. B. Simonds, for guardian ad litem for infant defendants. Wakeman & Latting, for defendant Partridge.

Huntley & Adams, for defendant Vanderbilt.

VAN VORST, J. — The plaintiffs in their complaint insist that the paper subscribed by Anne Morris on the 13th day of June, 1871, as and for her last will and testament, was not duly executed by her and is not her will. That she did not sign the paper in the presence of the witnesses thereto, and did not acknowledge to them that the same was her last will and did not request them to witness the same.

On the other hand, the defendants Richard Morris and wife claim that the instrument was executed and published by the testatrix, as and for her last will and testament, in the presence of the witnesses in conformity with the statute.

Morris agt. Porter.

There are three witnesses to the will, viz., Hannah M. Roope, Edmund J. Porter and Franklin Bradley. The testimony of one of the witnesses, Hannah M. Roope, was unavailable she having departed this life before the trial.

The will in question, according to the testimony of Edmund J. Porter, one of the witnesses, was written by him at the request and under the direction of the testatrix, and before its execution was read by him to her in the presence of Hannah M. Roope. Porter then told the testatrix that it was necessary to have witnesses. Testatrix replied that Hannah M. Roope would be one of the witnesses, and she requested Porter to be another. Testatrix then sent Hannah M. Roope out to summon Franklin Bradley to be another witness. Porter testifies that when Bradley came in Mrs. Morris stated to the witnesses that the paper was her last will and testament and asked them to become witnesses thereto. That she then signed her name and then Hannah M. Roope signed her name, then Porter and Bradley each also signed. Porter testifies that the testatrix was in the possession of all her faculties at the time.

Upon his cross-examination Porter testified that, according to the best of his recollection, Bradley came in before the will was signed by the testatrix.

The witness Bradley, when shown the will, testified that his signature thereto was genuine; that he was called from his business by Hannah M. Roope to witness that will; that there were present at the time the testatrix, Hannah M. Roope, John Morris and Mr. Porter. They were all sitting around the dining-room table. There were others present. That when he came in the room the testatrix said to him "good morning;" that he was then asked by Mr. Porter to sign that will; that he then took the pen and signed it. He saw that there were two other witnesses to it. Mrs. Morris, according to Bradley's testimony, did not say any thing about the will. The will was lying on the table as he came in. It was taken up and handed to him by Mr. Porter who

Morris agt. Porter.

called his attention to it as the will of Mrs. Morris. All the parties were in the hearing of each other. Bradley says that Mrs. Morris saw him sign the paper, and after he had signed it she said to him "thank you." He did not see her sign it; could not say whether her signature was there at the time or not. Mr. Porter, who was sitting between Mrs. Morris and John Morris, handed the paper to him across the table and told him where to sign. When he came in the room Mr. Porter said, in substance: "We have sent for you to sign, as a witness, Mrs. Morris' will." Mrs. Morris heard the conversation. Bradley says: "Mrs. Morris was in the possession of her faculties; that she had always been noticed for the clearness of her faculties."

If the testimony of Porter had been corroborated in its essential facts by Bradley, no question could have arisen as to the proper execution of the will. But there is some want of agreement between these witnesses in an important particular. Porter testified that Mrs. Morris signed the will in the presence of each of the witnesses. Now, while there is not the least doubt but that Bradley, at the time he signed as a witness, understood and believed the paper to be her last will and testament, nor but that he signed the same as a witness at her request, such request being communicated to him by Mr. Porter in her presence and with her assent; yet Bradley testifies that Mrs. Morris did not subscribe the will in his presence, and he could not say whether her signature was there or not; he did not see it. There is no positive evidence of any distinct statement or acknowledgment on the part of Mrs. Morris, in the presence of all the witnesses, that she had subscribed the same. Execution and publication are distinct and independent acts. Mere publication, without any other act, is not a sufficient acknowledgment. Had it distinctly appeared by the evidence of Bradley that the will, when handed to him by Porter in the presence of Mrs. Morris, bore her signature accompanied by the request that he should be a witness to it as her will, that would,