HAIGHT, J.

The instrument in question was witnessed by Dr. William Henry Porter and Mrs. Cornelia N. Edwards, who signed the attesting clause thereof on the 9th day of April, 1891, at the request of the testatrix. The surrogate, however, found as facts:

"V. That said instrument was not subscribed by said Laudy in the presence of either said Porter or said Edwards.

"VI. That the signature and name of said Laudy to said instrument was not read by or to, nor was it seen by or visible to either of the said witnesses when they signed said instrument as witnesses to said instrument, nor at any time during the said interview.

"VII. It is not proved that when said witnesses attested said instrument Mrs. Laudy's name had been subscribed thereto.

"VIII. That at no time did the said Laudy declare to said Porter that she had subscribed her name to said instrument.

"IX. That at no time did said Laudy declare to said Edwards that she had subscribed her name to said instrument.

"X. That at the time said Laudy showed the paper instrument in question to said Porter her signature was not shown to or read by him nor by Mrs. Edwards, and was not then or at any time during that interview known by them or either of them to be then upon the said instrument."

The General Term appears to have reached the conclusion that the testimony of the subscribing witnesses, considered in connection with the circumstances attending the execution of the will, required a finding that the testatrix complied with the demands of the statute. The statute with reference to the manner of executing wills, among other things, provides: "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." (2 R.S. 63, § 40.)

In Matter of the Probate of the Last Will and Testament of James Mackay, Deceased ( 110 N.Y. 611) it was held that subscribing witnesses to a will are required for the purpose of attesting and identifying the signature of the testator; and, in order to do this, it is essential that they should see the testator subscribe his name, or that with the signature visible to them he should acknowledge it to be his. (See, also, Lewis v. Lewis, 11 N.Y. 221; Mitchell v. Mitchell, 16 Hun, 97; affirmed in this court in 77 N.Y. 596.)

The testimony of Dr. Porter tends to show that the signature of the testatrix was upon the instrument at the time that it was presented to him for his signature, and that she then stated that she had signed it. But the testimony of Mrs. Edwards is, in substance, to the effect that at the time the paper was presented to her, for her signature, it was so folded that she saw only the signature of Dr. Porter, and speaking with reference to the conversation between the testatrix and the doctor, she recalls no expression on the part of Mrs. Laudy, in which she stated that she had signed the instrument. A question of fact is thus presented as to whether she did or did not see the signature, and as to whether the testatrix declared it to be hers. This question to some extent involves the credibility of Mrs. Edwards' and the doctor's testimony, as well as the inferences to be drawn from the circumstances surrounding the execution of the instrument.

The General Term, in this class of cases, is given the same power as the surrogate to determine the facts. (Code Civ. Pro. sec. 2586.)

The testimony of Mrs. Edwards was insufficient to authorize the admission of the will to probate, and it is only upon the theory that her testimony was not true that the General Term could reverse, but that court is given broad powers under the provisions of the Code referred to, and, in the exercise of its sound judgment and discretion, may reverse in case it becomes satisfied that substantial justice has not been done. We think, therefore, that we ought not to interfere with the judgment of the General Term, insofar as it reverses the decree of the surrogate. But we think it ought not to have deprived the parties of another trial. As we have seen, the question of fact presented involves the credibility of the witnesses, the difference between Dr. Porter's and Mrs. Edwards' testimony as to the exhibition of the testatrix's signature and her alleged declaration with reference thereto, together with the inferences to be drawn from the surrounding circumstances. The case is clearly distinguishable from that of Matter of Hunt ( 110 N.Y. 278). The true test is, in a trial before a jury, could the court properly take the facts from the jury and determine the question as one of law? This we think could not properly be done under the testimony presented.

Section 2588 of the Code provides that "where the reversal or modification of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order directing the trial, by a jury, of the material questions of fact arising upon the issues between the parties." It appears to us that this provision applies to the case presented and that a trial by jury should have been directed. A certificate of the General Term was presented showing that the decree of the surrogate was reversed upon the ground stated in the opinion. A review of the opinion indicates that the reversal was based upon the facts. The case has been argued in this court upon the merits, and we have concluded to treat the judgment of reversal as having been made upon the facts, but we wish it to be distinctly understood that this conclusion is not to be regarded as a precedent or as holding that the certificate is a compliance with the provisions of section 1338 of the Code (Civ. Pro.), which provides that "upon an appeal to the Court of Appeals from a judgment, reversing a judgment entered upon the report of a referee or a determination in the trial court; or from an order granting a new trial, upon such a reversal; it must be presumed that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears in the record body of the judgment or order appealed from." We think that the General Term ought to be able to determine whether their reversals are made upon the facts or the law, and that this court ought not to be compelled to go to the opinion for the purpose of determining that question.

The judgment of the General Term should be modified by striking out the clause directing the surrogate to admit the will to probate, and by inserting instead thereof that a trial by jury be had at a trial term of the Supreme Court in the county of New York, of the question as to whether the subscription of the instrument in question was made by the testatrix in the presence of each of the attesting witnesses, or whether the acknowledged such subscription to have been so made to each of the attesting witnesses, and as so modified the judgment should be affirmed, with costs to abide the event.

All concur, except GRAY, J., who dissents upon the ground that there was no conflict in the evidence warranting a trial before a jury, and further that we should reverse the General Term and affirm the decree of the surrogate. BARTLETT, J., not sitting.

Judgment accordingly.