Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.
Probate of the will of Everitt Kilburn Taylor was refused below, In re Taylor's Estate , 25 N.J. Super. 105 (Cty. Ct. 1953), and proponents appeal. The single question dealt with here is whether the signature of Mr. Taylor, affixed out of the witnesses' presence, was duly acknowledged.
The will was in Mr. Taylor's hand throughout, ending thus:
"In Witness Whereof I have hereunto set my hand and seal this seventeenth day of January, 1942.
The above Everitt Kilburn Taylor, having this seventeenth day of January, 1942, has (sic) made known to us the contents of this instrument, and declared it to be his last Will and Testament, and
signed and sealed it in our presence; we therefore, at his request, and in his presence, and in the presence of each other do hereby set our hands and seals as Witnesses hereunto.
172 Irvington Ave So. Orange, New Jersey
172 Irvington Ave. So. Orange N.J."
A will to be valid must be signed. N.J.S. 3 A:3-2. Proponents argue that the name, Everitt Kilburn Taylor, appearing in the attestation clause in the third person and prefaced with the word "above," looking back, it might seem, to the blank space before the "L.S.," constitutes the signatory act required by the statute. In re Phelan's Estate , 82 N.J. Eq. 316 (Prerog. Ct. 1913), affirmed Phelan v. Phelan , 82 N.J. Eq. 647 (E. & A. 1913). At any event, proponents say the word "signed" in the attestation clause ...