Misc.] Surrogate's Court, Montgomery County, December, 1919. The question involved is whether the document offered for probate has been executed as required by the statute. Decedent Estate Law, § 21, being Laws of 1909, chap. 18, and constituting Consol. Laws, chap. XIII, which provides: 66 Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: "1. It shall be subscribed by the testator at the end of the will. "2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses. "3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. "4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator." The paper offered for probate undoubtedly expresses fully the intention of this decedent and if it was the intention of the testator that should govern when a construction of the statute is involved, as it would were a construction of the will after it is probated is in question, I would unhesitatingly and without question declare for the probate of this will. The authorities upon the question involved, however, without any exception that I am able to find, hold that it is not the intent of the person attempting to make a will, but that of the legislature which governs under such circumstances as we find in this case. Matter of O'Neil, 91 N. Y. 516; Matter of Blair, 84 Hun, 581; affd., on opinion below, 152 N. Y. 645; Matter of Andrews, 162 id. 1; Matter of Field, 204 id. 448. Surrogate's Court, Montgomery County, December, 1919. [Vol. 109. There has been much discussion as to whether the legislature meant the physical end or the so-called "literary," "natural," "logical," "speaking," or "constructive" end of the paper and I believe, and so hold, that the same rule of law applies as to the witnesses signing their names" at the end of the will" as it does to the testator subscribing his name "at the end of the will" as provided by subdivisions 1 and 4 respectively, of said section 21 of the Decedent Estate Law. Prior to the decision of Matter of Field, supra, the law appears to have been settled in this state that the statute meant the physical end of the will. Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of Hewitt, 91 id. 261; Matter of O'Neil, 91 id. 516; Matter of Conway, 124 id. 455; Matter of Blair, supra; Matter of Whitney, 153 N. Y. 259; Matter of Andrews, supra. Matter of Andrews holding that there might be times when the rule would result in hardship, the court was still of the opinion expressed in Sisters of Charity v. Kelly, supra, at page 416, that "The statutory provision requiring the subscription of the name to be at the end, is a wholesome one, and was, adopted to remedy real or threatened evils. It should not be frittered away by exceptions. While its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction." While the opinion in Matter of Field, supra, gives more latitude and is much more liberal as to the application as to what is meant by the "end of the will" yet when I read this opinion as a whole and not take isolated parts of it I cannot help but conclude that the Court of Appeals in this case did not intend in effect to overrule all the cases cited above as to what is meant by the end of the will." In the Field case a Misc.] Surrogate's Court, Montgomery County, December, 1919. printed form was used. In the space intended for bequests there were attached by two pins six sheets of paper bearing the handwriting of the decedent written upon one side only and numbered by him at the top consecutively from 1 to 6, which contained the dispositive provisions of the will; the signature of the deceased was written in the usual place on the right side of the bottom of the printed form. In the course of this opinion of the Court of Appeals the court said, at page 453: "So the six sheets of the papers in question are part of the body of the will, being physically incorporated therein and not, as in some of the cases, wholly without the body and merely referred to therein. The essence of the paper subscribed is not the printed form alone, but the printed form with the six sheets so inserted therein as to become blended therewith at the point of insertion. Thus the physical and the literary beginning, body and end of the instrument are the same, and the signature of the testator is found at the end." As said by the court in Matter of Andrews, supra, at page 5: "It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of the statutory requirements. It is better this should happen under a proper construction of the statute than that the individual case should be permitted to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills." The statute, however, makes no exception with respect to a holographic will in its requirements as to execution. Matter of Turrell, 166 N. Y. 330. Although I heard the proofs offered on the part of the proponent, I believe that upon the paper propounded for probate I would have committed no error Surrogate's Court, Montgomery County, December, 1919. [Vol. 109. had I refused to hear them. Matter of Hewitt, 91 N. Y. 261. 66 In the case before me, unlike the Field case, the writing on the "envelope," proponent's Exhibit 2, is not a part of the body of the will and is not physically incorporated therein, but is wholly without the body and entirely separated therefrom, the envelope serving only as a receptacle for the body of the will, proponent's Exhibit 1. The writing on pages 1 and 2 was, undoubtedly, made by the testatrix, and the presumption is that the writing was made by her on May 27, 1915, which is the date found upon the paper. The date that Carrie Van Buren and Simon Van Buren signed the envelope accompanying, in which the paper pages 1 and 2 " offered for probate was found, was made on June 21, 1919, over four years after the time of the writing of the instrument offered for probate. The decedent may during this long period of time have written many papers with an honest intention and purpose of making her will, which papers, of course, may have been entirely different as to the bequests than the one offered for probate. There is no proof showing that at the time Carrie Van Buren and Simon Van Buren wrote their names upon proponent's Exhibit 2, the envelope, and after proponent's Exhibit 1, the body of the paper offered, was placed in Exhibit 2, that the same was sealed and it, therefore, would have been very easy for a similar sheet of paper, with a writing thereon of the deceased with the intention to make her will, to have been placed in proponent's Exhibit 2; therefore I believe that upon the facts in the case and upon the authorities upon the question there has not been such an execution of the paper offered as is required by the statute in this state, and I accordingly deny to admit the same to probate. Probate denied. Misc.] Surrogate's Court, New York County, December, 1919. Matter of the Estate of GEORGE SKELTON YUILL, Deceased. (Surrogate's Court, New York County, December, 1919.) Wills-non-residents accounting 1 by executor trustees Surrogates' Courts-bonds - Code Where the will of a non-resident, in an original proceeding, is admitted to probate in the county of New York an accounting by the executor is properly before the surrogate and an objection that the court has not jurisdiction of the subject matter will be overruled. The words "testamentary trustee " in section 2564 of the Code of Civil Procedure, do not apply to testamentary trustees appointed under the will of a non-resident, probated in this state. While the provisions of said section, under which an alien, not an inhabitant of this state, is not competent to serve either as an executor, administrator, testamentary trustee or guardian, are general in character, they are limited by section 2641 of said Code, and an objection that payments made to the trustees named in the will should not be approved on the ground that they are alien non-residents, will be overruled. The executor having paid over the trust funds to the testamentary trustees, as directed by the will, a further objection that said trustees, if qualified to act, should give a bond and file their oaths of office as required by the Code of Civil Procedure, must also be overruled. PROCEEDING upon the accounting of an executor. White & Case (Fitzhugh McGrew, of counsel), for executor. Daniel J. Mooney, special guardian. FOWLER, S. The testator was a resident of Australia, and he executed a will at Sydney, New South |