WOODRUFF, J.

The due execution and validity of a will devising real estate, situated in this State, are open to inquiry here, notwithstanding the probate in New Jersey, where the testator resided. The appellant insists that the judgment herein should be reversed on two grounds: first, that the instrument admitted to probate as a will was not legally executed, either by the laws of New York or New Jersey; second, that the testator was not of sound mind and memory at the time of the alleged execution; and, in this connection, the appellant insists that a presumption is warranted that the will was executed under undue influence.

There is not the slightest affirmative or direct evidence that the testator was not, at the time when he gave the instructions to the magistrate, and when he executed the will, in the full possession of his mental faculties, and in their ordinary exercise. He was very sick, he was apparently aware that he had not long to live, but all the testimony to what transpired on the morning in question indicates that he was fully aware of the nature of the business in which he was engaged, and of the relation in which he stood to his wife and family. Whatever view he entertained of the relative position of himself and wife prior to that day, he manifested a primary wish to place her in the clear relation of wife, by the new performance of the ceremony of marriage; showing, at the same time, that he deemed this of even greater importance than any pecuniary provision for her benefit. His instructions to the magistrate were also given in a manner indicating a full comprehension of the subject, and a conscious will of his own in making the dispositions which he directed.

There is no counter evidence. No witness states, and no circumstance proved shows, any mental weakness; on the contrary, the witnesses, including the brother of the testator, who did not see him until some hours after the will was executed, agree in the unqualified opinion that his mind was sound and clear. Besides the fact that he was very ill and died about five or six o'clock in the afternoon, there is nothing to throw doubt upon the testator's capacity, and, surely, that is not alone sufficient. If that would warrant such a doubt, it is wholly overcome by the affirmative testimony.

There is as little warrant for the claim, that the will was executed under undue influence. In the first place, the proof shows, in a manner quite convincing, that the will was his own voluntary act. And there is no rebutting testimony. Nothing in the case indicates that the subject of making a will, or any of its dispositions, was suggested to him in any form, directly or indirectly, and unless the mere fact that he gave nearly all his estate to his wife, and only $500 to his only child, is of itself sufficient proof of undue influence to defeat the will, this point utterly fails.

I recognize the weight of authority found in the cases relied on by the appellant, on the subject of undue influence, and the call upon the court for jealous scrutiny where the dispositions made by a testator in moments of great physical weakness, are extraordinary, and especially when they indicate an insensibility to the dictates of natural affection, and what are ordinarily recognized as the claims of children, or other near relatives, and still more so, if those dispositions are in favor of unworthy objects.

But, where the evidence of mental capacity is satisfactory, where there is an entire absence of proof of any interference with the free exercise of a disposing mind, the circumstance, that the court do not perceive the reasons which led him so largely to prefer his wife in the disposal of his property, is not alone sufficient to establish that his will was not his free and voluntary act. Whether he had some prejudice against his son, then fourteen years of age, and, perhaps, able to support himself, whether he estimated his obligations to his wife at a higher rate than usual, or whether, in reviewing their previous history, he even erroneously considered her entitled to his largest benefactions, we cannot know. But we are bound to say, in the language of the opinion in this court, in Clapp v. Fullerton ( 34 N.Y. 197), "The right of a testator to dispose of his estate depends neither on the justice of his prejudices, nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust."

2. Was there sufficient proof of the due execution of the will?

The testimony establishes that the testator gave to the magistrate, Miller, specific instructions detailing the provisions of the will. The will conforms to those instructions — it was given to him for examination. He insisted that he would not sign it until he had signed the marriage certificate. This was done. He requested the magistrate to get witnesses. He procured them, viz., Dr. Fisher and Mr. Davis, Miller himself being present all the time. Dr. Fisher came in first, and the testator "requested him to sign it;" and, in the presence of Dr. Fisher and the magistrate, Miller (two of the witnesses to the will), the testator took the pen in his hand for the purpose of signing his name. His hand trembled; and, as Miller states it, "he found out, after trying some time, that he could not write his name, and said he would make his cross," and he did so, and then "acknowledged it to be his last will and testament;" and the magistrate wrote the words "Moses W.S. Jackson, his mark," which appears around the cross, "with the same pen and at the same time." Whether immediately before the cross was made by the testator or immediately after, does not very distinctly appear. Miller and Dr. Fisher signed their names as witnesses. The testator requested each of them to do so. According to Miller's testimony, before the testator made his mark, "the witnesses signed it and he made his mark." Ques. "Did he make his cross before or after they signed it?" Ans. "Afterward."

Shortly after Mr. Davis, the third witness, came in, and Miller, the testator, requested him to sign it, as a witness to his last will and testament, and acknowledged it as his last will and testament, and Davis thereupon signed it as such witness.

I am not able to discover any defect in the execution of the will, on the part of the testator, either under the law of New Jersey, cited by the appellant, or under our own.

The mark made by the testator as and for a subscription is a "subscription by the testator at the end of the will." It was made in the presence of two attesting witnesses, "both present at the same time." It was acknowledged by the testator to a third attesting witness, which seems to have been unnecessary (as the law is quoted) in New Jersey as well as here. The testator, at the time of signing, and at the time of acknowledging, declared the instrument to be his last will and testament. The witnesses were each requested to sign the will, and did so at the end thereof.

The testimony of Miller, by whom the facts I have detailed are chiefly proved, is not very orderly and clear, but there is nothing to suggest doubt of his truthfulness, and he is corroborated, to some extent, by others. Taking all the evidence together, I deem the facts proved as above stated.

The circumstance that the attestation clause does not recite all the details is of no importance. As a memorandum of what occurred, and as a means of securing the attention of the witnesses to the fact that all required formalities have been observed, it is very desirable that it should be full and precise in its details. Sometimes, when the witnesses are dead, it may be of great importance as presumptive evidence of due execution. But the attestation clause is no part of the will, and is not required as a part of its due execution by any law. ( Chaffee v. Baptist Miss. Ass., 10 Paige, 85; Leaycraft v. Simmons, 3 Bradf. 35; Jackson v. Christman, 4 Wend. 282.)

So, in regard to the suggestion that the words "Moses W.S. Jackson, his mark," were written by the witness, Miller, by whom the will was drawn, and no proof of a distinct direction to him by the testator to write them was given; and that they appear to have been written after the testator made his mark. If it was material it would suffice to say that the transaction was one; the acts were simultaneous as nearly as practicable. The order of several things constituting one complete execution, by the testator, is not material if they are, in fact, done as nearly as may be at the same time. Thus the statute requires that the testator, "at the time of making such subscription, * * shall declare the instrument * * to be his last will and testament." But this does not make it necessary that the declaration shall be uttered while in the very act of writing. It may be immediately before or immediately after; it is enough if it be on the same occasion and forms part of the one transaction. ( Secor v. Lewis, 13 Barb. 25; Doe v. Roe, 2 id. 205; Seguine v. Seguine, id. 394, 5; Kenney v. Whitmarsh, 16 id. 145.)

Besides, it is an error to regard the writing of the words in question, as the "signing the testator's name by his direction," referred to by the statute. The testator may subscribe the will by his full name or by his mark, and if he does so, that is the subscription required by the statute. And it would be effectual as such even though no one made the written memorandum thereof around such mark. Such memorandum is useful and important, not only as a guide to the memory of witnesses, and a cotemporaneous declaration of the purpose of the mark, and that it was made by the testator, but as a protection against fraud; but it is not of the essence of the execution. When it is necessary to prove the execution of an instrument by a "marksman," the proof is evidence of the making of the mark; the writing of the name around it is no essential part of the evidence. ( Jackson v. Van Duzen, 5 J. 144; Addy v. Grix, 8 Ves. 504; Butler v. Benson, 1 Barb. S.C. 533; Chaffee v. Baptist Association, 10 Paige, 91.) It follows that whether the testator expressly directed such memorandum to be made or not, is wholly immaterial, though upon the whole case it seems to me that such direction was substantially imported in what occurred. And whether the memorandum was made before or after the making of the mark is also unimportant. (1 Jarman on Wills, 101.)

The question, whether if the witnesses sign their names before the will is subscribed by the testator, has come under consideration in England under the statute of 1st Victoria (ch. 26, § 9), which differs but little in its provisions touching the execution of wills from our own. Thus: "It shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary."

So far as the words of the statutes bear upon this question, I do not perceive that there is any material difference between the English statute and our own. Both require subscription or signing by the testator, or an acknowledgment thereof by him in the presence of each of the witnesses; both contemplate the attestation of that fact by such witnesses by their subscription.

On several ex parte applications for probate of wills in the Prerogative Court of Canterbury, such probate has been refused where it appeared that the witnesses signed before the testator, and in one of the cases the testator first read the will aloud in their presence, then requested them to sign, and, they having done so, he immediately signed it in their presence. In one case the question of probate was discussed by counsel, and the rule was affirmed, though the will was admitted on the ground that it did not appear upon a review of all the evidence that the witnesses signed before the testator.

And in some cases where the testator signed in the presence of one witness, who also signed, and afterward the testator acknowledged the execution to both, but the first did not again sign, — the execution was held defective. (See In the Goods of Olding, 2 Curteis, 865; In the Goods of Bird, 3 id. 117; Cooper v. Procket, id. 648; In the Goods of Allen, 2 id. 331; In the Goods of Simmonds, 3 id. 79; Moore v. King, id. 243.)

Our statute on this precise point reads: "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."

They are, in and by this act of signing their names, to attest, not only the signing or acknowledgment, but his cotemporaneous declaration that it is his will. Their signatures do not attest the signing by the testator, if they are placed there before the will is signed by him. For some period, longer or shorter, as the case may be, those signatures attest no execution — they certify what is not true.

When, and in what moment, do they begin to operate as a compliance with the statute? The only reply that can be given is, when the testator signs his name.

This is a dangerous construction of the statute. May the testator keep these signatures in his possession one hour, one week or one year, and then add his signature? Certainly not, unless he summons the same persons to see him sign, or hear his acknowledgment thereof.

But, suppose he adds his signature and dies, what then becomes of the presumption of due execution, arising from the apparent regularity and the due form of the attestation clause? Once let it be settled that witnesses may sign before the testator, and all presumption of due execution, when witnesses are dead or beyond reach, ceases.

If it be said, that witnesses will not sign, and so leave their names in the possession of a testator; to suppose they would, is to impeach their honesty; and it is the presumption of men's truth and honesty which makes regularity and formal attestation prima facie evidence of due execution.

I do not think this a sufficient answer. The statute contemplates acts, each of which are serious and important. Execution and the attestation thereof bear a plain relation to each other in point of time, in the good sense and common apprehension of every one, and the statute prescribing the requisite formalities to a valid execution and authentication, plainly contemplates that the acts of the witnesses shall attest the signing and declaration of the testator as a fact accomplished.

I was at first inclined to think that if the whole was done at the same interview, the attestation by the signing of the witnesses might be done in any part of it without regard to the order of events; as above suggested, the acts of the testator may be, but, upon further reflection, I am satisfied that the view taken of the subject by the ecclesiastical court in England, best conforms to the language and intent of the statute. The signing or acknowledgment by the testator, and his declaration that the instrument is his last will and testament, are in the statute made cotemporaneous, and neither must necessarially precede the other, and yet, in practice, this must be construed to mean on the same occasion, each as parts of the same transaction, and not requiring that the words of declaration should actually accompany the movement of the pen in signing, or be actually embraced in the terms of acknowledgment of such signing. Practically, which utterance is first is of no possible importance.

The attestation by witnesses is of a past transaction, it is so in its nature, and so in the ordering, and, I think, the meaning of the statute.

This distinction, if it served no useful purpose, if the contrary was liable to no danger, nor led to any abuse, might be deemed a too strict adherence to the literal interpretation of the law. But reasons I have suggested already, I think, show that a strict adherence to the statute is demanded.

Upon the ground, that, according to the testimony as it appears in the case before us, the witnesses signed before the testator, the judgment of the Supreme Court should be reversed.

There is, perhaps, reason to apprehend, from the somewhat disconnected and not always quite definite and intelligible manner of the witness, that he may not have intended to be understood as saying that the witnesses signed first, and yet his testimony so reads. If there is any mistake on that point, it will be corrected on the trial, which the reversal of the judgment of the Supreme Court will render necessary.

As to the question raised by the appellant, whether the witnesses examined before the surrogate were competent to testify, two of them being named as executors, it must suffice to say that no such objection was there raised, they were examined without objection, and such objection, if it have any force, cannot be first raised here.

The absence of the third witness, Dr. Fisher, was sufficiently accounted for, and the will could be established without his testimony, where the contestant did not expressly require his examination, even if the proof had not shown prima facie that he was out of the State. (Laws of 1837, ch. 460, §§ 10, 11; Caw v. Robertson, 5 N.Y. 128, 129.)

But, on the ground above stated, the judgment must be reversed.

Reversed, and a new trial ordered, without costs on appeal.