Opinion
June 3, 1975
Patterson, Belknap Webb (Christopher C. Angell of counsel), for petitioner.
In this probate proceeding the proofs pursuant to SCPA 1404 were taken by the Surrogate. The evidence established that the will was executed on August 12, 1954 while the decedent who was blind, was a resident of a home for the blind. The execution of the will was supervised by an attorney who was an attesting witness. He first read the will aloud to the testator in the presence of the two additional attesting witnesses. The testator stated that the said will met with his approval and declared the instrument to be his will. With the assistance of one of the attesting witnesses, the testator made a cross-mark for his signature. This witness wrote on the instrument after the cross-mark "(Joseph McCready) his mark by Lillian T. MacKinnon". At the request of the testator and after the reading aloud of the attestation clause of the will (which recites the facts just stated) the three attesting witnesses signed their names in the presence of the testator. Blindness does not deprive a person from making a will (Matter of McCabe, 75 Misc. 35, and cases cited in 2B Warren's Heaton, Surrogates' Courts [1971], § 186-C, par 6, subd [a]). The law is also well settled that a cross-mark is the signature of the decedent (Matter of Galvin, 78 Misc.2d 22, citing Jackson v Jackson, 39 N.Y. 153). A signature by mark even with the testator's hand guided is sufficient (Matter of Stegman, 133 Misc. 745, and cases cited in 2B Warren's Heaton, § 186-A, par 4, subd d). In the instant case not only did the testator sign with a cross-mark but one of the attesting witnesses signed his name at his request. One of the attesting witnesses was examined by the court. The remaining living attesting witness because of his physical condition is unable to appear in court. His statement was taken pursuant to SCPA 1406.
The propounded instrument appears to have been duly executed in accordance with EPTL 3-2.1. The competency of the decedent to make a will and his freedom from restraint having been established the said instrument is admitted to probate as the will of the decedent.