In re the Probate of the Will of Baldwin

Headnote

Will — probate — when evidence of surviving witness not permitted to outweigh facts and circumstances tending to establish proper execution of holographic will.

Matter of Baldwin, 216 App. Div. Ill, affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 10, 1926, which reversed a decree of the Yates County Surrogate’s Court refusing probate of a paper propounded as the last will of Catherine A. Baldwin, deceased, and remitted the matter to said Surrogate’s Court with directions that the will be admitted to probate. The question was whether the will had been executed in accordance with statutory requirements. It was in the handwriting of the deceased, signed by her and the

attestation clause in her handwriting recites that it was subscribed by the testatrix at the date thereof and that she acknowledged that she executed the same. One witness to the will died before the testatrix. The other testified she did not see the testatrix sign the will and that testatrix did not acknowledge she had signed it. Twenty-five years had elapsed, the witness was sixty-seven years of age and had forgotten some of the incidents connected with the execution of the will. The Appellate Division held that under the facts in the case, and in view of the fact that the will is holographic, the evidence of the surviving witness given twenty-five years after the will was executed should not outweigh the other facts and circumstances which tend to establish the proper execution.

Order affirmed, with costs to respondents payable out of the estate;