In re the Probate of the Will of Dockstader — 19 N.Y. St. Rep. 245

Majority

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In the Matter of the Probate of the Will of Mary Dockstader, Deceased.

(Surrogate's Court, Montgomery County,

Filed February, 1888.)

Headnote

■Will—Proof of execution—Code Civ. Peo., § 2620:

The will of the testatrix was proved by one of the subscribing witnesses, the other being dead. It appeared that the testatrix’s name was written by the living witness, and that decedent subscribed her name by making a cross-mark. The other essential circumstances were proved. Held, that the will was entitled to be admitted to probate upon the testimony of the living witness. That she saw decedent make her mark at the end of the proposed will. That this was a compliance with the provisions of the Code Civ. Pro., § 2620, which provides, that if a subscribing witness, whose testimony is required is dead, the proof of the handwriting of the testator and of the subscribing witness must be given. Matter of Reynolds, 4 Dem., 68 , distinguished.

Application for probate of a will. The opinion contains all the facts.

R. B. Fish, for proponent.

It has been objected that the proof of the handwriting of the testatrix in this matter is not sufficient, and that the application for probate should be denied.

The execution of the paper purporting to be the will of Mary Dockstader was proved by one of the subscribing witnesses, and it appearing that the only other subscribing witness was dead, his handwriting was duly proven. The testratrix’s name was written by the living witness, and she subscribed her name by making a cross-mark. It is provided by § 2620 of the Code, that “'if a subscribing witness, whose testimony is required, is dead * * * the will may nevertheless be established,, upon proof of the handwriting of the testator, and of the subscribing witness and also of such other circumstances as would be sufficient to prove the will upon the trial of án action.” There is

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nothing in the section that requires such proof of the handwriting to be made by more than one witness.

Tlie handwriting of the testatrix was proved by the living subscribing witness. He testifies that he was present and saw her make her mark at the end of the proposed will. No better proof of her handwriting than this can be given, and it is sufficient. With the due proof of the handwriting of the subscribing witness, all the requirements of the statute have been answered, to entitle the will to be admitted to probate.

My attention has been called to the Matter of Reynolds, 4 Hem., 68. In that case, it does not appear that the living witness saw the testator make his mark, and hence no one could give “proof of the handwriting of the testator,” for, as the learned surrogate in that case says, “ a cross-mark has no such cast or form as to distinguish it from a like mark made by any other individual.” That will may not have been subscribed hy the testator in the presence of each of the attesting witnesses, but he may have acknowledged it to have been by him subscribed to each of such witnesses. That would have answered the requirements of the statute, and the necessary proof could have been given by the witnesses, if living. But the one witness being dead, proof of the handwriting of the testator must be given, and, the living witness not seeing the testator make his mark, there was no one in that case to testify to his handwriting. That case does not conflict with the conclusion reached in the case under consideration.

A decree will be entered, admitted the will to probate.