In re Proving the Last Will & Testament of Durban

In view of the incomplete wording of the attestation clause, and the unsatisfactory testimony of the two subscribing witnesses called, we think the court cannot infer a due publication of the paper as the deceased’s will. As the third witness was not produced, a new trial should be had. The decree of the Surrogate’s Court of Richmond county is, therefore, reversed, and a new trial ordered, costs to abide the final award of costs. The allowance of $500 under section 3748 of the Code of Civil Procedure,^[1] to the special guardian, was not excessive, considering the services performed and the value of the estate. Jenks, P. J., Stapleton, Mills, Rich and Putnam, JJ., concurred.