Majority
p. 216New York County.—Surrogate. Hon. D. G. ROLLINS, February, 1883. Graber v. Haaz. In the matter of the application for probate of a paper propounded as the will of Adam Goss, deceased.
Headnote
An application for the probate of a will, one of two subscribing witnesses to which has not been produced, will be refused, where proponents neither take steps to examine such witness, orally or by commission, nor establish satisfactorily their inability so to do.Application for the probate of decedent’s will, made by Ida Haaz, executrix therein named; opposed by Margaretha Graber, one of decedent’s next of kin. The facts appear sufficiently in the opinion.
C. H. Betjeman, for executrix.
Michael C. Gross, for contestants.
One of the subscribing witnesses to the instrument offered as decedent’s will has not been produced. There is no proof that he is dead, or a lunatic, or incompetent to testify. There is some evidence tending to show, though not establishing to my satisfaction, that he is absent from the State. It certainly does not appear that he might not, by. due diligence, be found either in the State or out of it, and that his testimony might not be thereupon obtained by a commission.
Now, where there are only two subscribing witnesses, the examination of both is essential, if both are-accessible (Code Civ. Pro., §§ 8618, 8619, 8680).
This instrument must, therefore, be refused probate.
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unless the proponents take steps to examine the subscribing witness Hope, orally or by commission, or to establish more satisfactorily their inability so to do.