In re Will of Townley — 22 N.Y. St. Rep. 879

Majority

p. 879

In re Will of Jane W. Townley.

(Surrogate’s Court, New York County,

Filed February 13, 1889.)

Headnote

Will—Probate of—Sufficiency of proof—Code Civ. Pro., § 3620.

Where one subscribing witness to a will testified that she saw the testa tris sign the will, that she subscribed her name as a witness in the presence of the testatrix, and of the other two subscribing witnesses, that at the time, either the testatrix or her husband in her presence said it was a will and requested her to sign it as a witness, another subscribing witness identified her signature, but stated that the circumstances attending the execution of the paper had passed entirely from her memory. The third subscribing witness could not be found and his signature was illegible. Held, that the proof was sufficient under section 2620 of the "Code, and the will was admitted to probate.

Frank B. Colton, for proponent; W. J. Underwood, for contestant.

—The evidence fully establishes that at the time the alleged testatrix executed the paper propounded, she was of sound mind and under no restraint nor subject to undue influence. The only point in question is whether the substantial requirements of the statute were complied with in executing the paper.

The proof on this point is almost wholly confined to the testimony of one of the subscribing witnesses, Margaret J. B. Erwin, which was taken by commission. There were three subscribing witnesses, one of whom the proponent has been unable to find, and whose signature is illegible.

Another subscribing witness, Mrs. Eliza H. Townley identified her signature, but the circumstances attending the execution of the paper had passed entirely from her memory. She also testified that the body of the paper is in the handwriting of her husband. The "testimony of Mrs. Erwin, as taken by commission, is substantially as follows: She identified her own signature which appears on the paper as that of the second subscribing witness, and testified further that the signing of the paper took place in Mr. Townley’s sitting room, in Elizabeth, R. J., there being present Mr. Robert W. Townley, his wife, the testatrix, and a man whose name she cannot remember, but who signed as first subscribing witness; that either Mr. Robert W. Townley or the testatrix, asked her to sign as a witness, the testatrix being present when the request was made; that Mr. Townley said, while she and the other witnesses were signing, that the paper was a will, and the testatrix was present when such statement was made; that she and the other two witnesses signed in the presence of the testatrix, and in the presence of each other, and that she thought Mr. Townley read the paper aloud.

On a subsequent examination she testified that Mr. Townley showed the testatrix where to sign the paper, and that she, the witness, saw her sign, and at the time of such sign

p. 880

ing, the three subscribing witnesses were present; that after the testatrix had signed, Mr. Townley read aloud the attestation clause in her presence, and in the presence of the three witnesses before they signed as witnesses. Cyrus W. Loder and Sarah A. Loder, called by proponent, positively identified the signature of the testatrix. Under section 2620, Code of Civil Procedure, this paper is established as the last will and testament of Jane W. Townley, by the testimony of Eliza H. Townley, who identifies her own signature, and by that of Margaret J. B. Erwin, who not only positively identifies her own signature and that of the testatrix, but also gives proof of other circumstances sufficient to prove the will. Th"e will is admitted to probate.