HUNT US. MOOTRIE. reasoning command my assent and judgment. It is not without interest as to this subject of revocation, to observe, that our statute seems to contemplate wills executed with other forms than those prescribed by our own law; and in declaring how wills shall be revoked in writing, uses such general terms as embrace other forms,-not giving any particular mode of revocation, but simply requiring the revocation to be "executed with the same formalities with which the will itself was required by law to be executed." Now, Col. Hunt's will was required by law to be executed in the precise way in which it was in fact executed-and was then a perfect and legal will. And how has it been revoked? By a change of residence? There is not a word in all our statute of a revocation effected in that mode; and if not, if this will was valid when it was made, and if no will in writing can be revoked, except in the cases and in the mode required by our statute, how then has this will been revoked? But there is another portion of our law, which appears also to be in harmony with the liberal usages of those countries where the customs and doctrines of the civil law prevail. At the revision of our statutes, a mistake was made in not providing for the proof of wills where the witnesses were out of the jurisdiction of our courts. This was remedied by the amendatory Act of 1830. (2 R. S. p. 67, §§ 63, 64, 65, 66, 67;) and the Chancellor was authorized to issue a commission for the purpose of taking proof in such cases; but these provisions apply only to wills executed according to the laws of this State. Another section provides for proving before the Chancellor "wills of personal estate, duly executed by persons residing out of this State, according to the laws of the State or country in which the same were made;" and then the succeeding section declares, that, “no will of personal estate made out of this State, by a person not being a citizen of this State, shall be admitted to probate under either of the preceding provisions, unless such will shall have been executed according to the laws of the State or country in which the same was made." (§ 68, 69. In the matter of Roberts' will, 8 Paige, 446,) these provisions appear HUNT VS. MOOTRIE. to adopt the lex loci actûs, in the case of persons domiciled abroad: although as I have indicated elsewhere, they do not exclude the operation of the law of the domicil, except in the particular modes of probate recognized in these sections of the statute. (Isham vs. Gibbons, 1 Bradford's R. p. 77.) I think the fair construction of these provisions makes these sections applicable to persons residing abroad at the time of the execution of the will; and in such case recognizes the law of the place where the act was performed, as a proper criterion and guide in respect to the formality of the act-not as the only criterion, but as one which the law is willing to adopt in view of the special modes of probate prescribed in the statute. If that interpretation be reasonable and just, the policy of our law is sufficiently declared in this branch of the statute. In view then of the state of the continental law and of the jus gentium, in view of our own statute, as well in regard to revocations as to the recognition of the lex loci actûs just stated; in view of the fact that the will in question was made conformably to the law of the place where the decedent was domiciled at the date of its execution; and in the absence of any authoritative ruling on the precise point involved, I conclude in favor of the validity of this instrument as a will of personal estate, and must direct sentence of probate accordingly. RIEBEN VS. HICKS. RIEBEN 28. HICKS. In the matter of proving the last Will and Testament of ELIZA H. RIEBEN, deceased. Ir the testamentary declaration be made at the time of subscribing the will, as part of the transaction, the requisition of the statute is answered, notwithstanding it was made before the subscription. To hold a party seeking to execute a will, to a strict order in the performance of the statutory requisites, does not seem to have been contemplated by the statute. When it is directed that the declaration shall be made at the time of the subscription, time is used in the sense of occasion, season, and not in its extreme strictness as indicative of a precise instant. The statute of wills is not to be construed strictly, except as to the evils it was designed to prevent; in all other respects it is to be construed liberally, and when the essential requisites are satisfactorily proved, the objects of the law are answered. The testamentary declaration may be incorporate with the request to the witnesses to attest. Simple performance of any one of the statutory requisites, will not be taken for performance of any other; but performance of two or more uno tempore is not void because there is a joint or connected performance. B. L. DUNNING, WILLIAM FULLERTON, for Executors. A. L. ROBERTSON, for Husband. THE SURROGATE.-The single question arising on this probate is, whether the decedent made a proper and sufficient statutory declaration that the instrument which she signed and the witnesses attested, was her last will and testament. One of the witnesses testified, that she was called into the room, and found Dr. Cheeseman and the decedent there alone; the decedent was sitting up in bed, and the doctor standing by the bed-side. "Dr. Cheeseman asked her if she acknowledged that to be her last will and testament; she said yes; the paper was then in Dr. Cheeseman's hands; he had no VOL. III.-23 RIEBEN VS. HICKS. other paper in his hand." The doctor then inquired if the decedent wished them to sign it as witnesses, and she replied in the affirmative, wrote her name, and the witnesses thereupon attested the paper in her presence. Dr. Cheeseman, who was the decedent's attending physician during her last illness, drafted the will, read it to her, and inquired, if "she wished to make that her will, and whether she wished it to be done now." The doctor testifies, that she answered in the affirmative, and signed the instrument, that the other subscribing witness was present, and "saw her sign it," and was also present when he asked the decedent "if that was her will." "I asked Mrs. Rieben if she wished to make that her last will, she answered, 'yes,' audibly." Again he says, "I asked Mrs. Rieben whether she wished us, myself and this girl, to be subscribing witnesses to this instrument, her last will and testament, and she said 'Yes'; I and the girl signed the will in the room at the bedside, on the desk, and Mrs. Rieben saw us sign and requested it to be done." Upon his crossexamination the doctor at first stated, that after the deceased signed the will, he did not know that she made any remark 66 except as to her signature, that she did not know it would be admitted, stating it was written so badly." But upon further inquiry he testified, that "after she signed the will," she replied to two questions he put to her. He says, “I asked her if she wished us to be subscribing witnesses to this her last will and testament, and to that she said 'I do.' She answered yes, to the question by me, what I should do with the instrument, whether I should take charge of it?" On this evidence I think there is sufficient proof in point of fact, of a testamentary declaration, both before and after the decedent subscribed the instrument. Both witnesses agree that before the subscription the nature of the paper was made known,-Dr. Cheeseman putting the question, to which she answered affirmatively, in this shape, "I asked Mrs. Riebens if she wished to make that her last will?"—and the other witness putting the question in this form, "Dr. RIEBEN VS. HICKS. Cheeseman asked her if she acknowledged that to be her last will and testament." I think either of these inquiries, if properly responded to by the decedent, constituted in connection with a satisfactory answer, the declaration required by the statute. They were made as part of a transaction then and there in the process of performance, and they were present and not future in their reference and application. In conjunction with the answers they made known and declared, explicitly and openly, the nature of the instrument and the character of the act. The affirmation of the decedent had the same force as if she had herself said, "I wish to make this my last will," or, "I acknowledge this to be my last will and testament." Because this declaration was made before the decedent subscribed the paper is, in my judgment, no reason for rejecting it as a component part of the affair. It was very clearly made immediately and not remotely before, it was made as part of the thing to be done, it was a ceremony and used as such, it was the very ceremony required by the statute, and in its very form and manner its object and intent were plainly to make known to the witnesses as an integral portion of the act, its testamentary character. To hold a party seeking to execute a will to a strict order in the performance of the statutory requisites, does not seem to have been contemplated by the statute, and considering the infirmity of the human memory, would so far as my experience extends, lead to fatal consequences. Recollection generally extends to the substance of events, but is less tenacious of their precise order, when nearly contemporaneous in occurrence, and while we may remember sufficiently the leading outlines, it is far more difficult to give their exact arrangement. The statute says no more than that the declaration shall be made at the time of subscription or acknowledgment of the subscription. Time is used here in the sense of occasion, season, and not in its extreme strictness as indicative of a precise instant. If the declaration is to be made at the very moment the testator is subscribing, what will can be considered as safely executed, |