In re the Probate of the Last Will of Potter — 33 N.Y. St. Rep. 936

Majority

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In the Matter of the Probate of the Last Will. etc., of Ann Elizabeth Potter, Dec’d.

(Surrogates Court, Cattaraugus County,

Filed October 28, 1890.)

Headnote

1. Will—Execution.

It is not necessary that both witnesses be present when the acknowledgment of signature is made, nor that they sign in presence of each other.

2. Same—Interlineations.

Where the testatrix was her own scrivener and the custodian of the wilb interlineations shown to be in her handwriting and erasures will be pre sumed to have been made prior to execution.

Proof of will.

A. W. Stone, for proponents; Hudson Ansley and 0. S. Tree-land, for contestants.

The testatrix prepared the will herself and signed it in the absence of the attesting witnesses, but acknowledged the signature to be her own, and made the usual declaration that it was her will.

The two subscribing witnesses were not present together when this acknowledgment was made, and tfgsy did not sign in the presence of each other, but this is not necessary, Hoysradt v. Kingman, 22 N. Y., 372 ; Willis v. Mott, 36 id., 486-497 ; Lyman v. Phillips, 3 Demarest, 459-467.

There are several interlineations and erasures in the instrument, but an inspection of it shows plainly that all the interlineations are in the handwriting of testatrix, and these, as well as the erasures, may well be presumed to have been done by her in the preparation of the will and prior to its execution. The facts that

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she was her own scrivener and the custodian of the document weigh in favor of this presumption.

There is no evidence to show these obliterations were made with, any intent to nullify the will, and that is essential before a revocation can be effectual. Lovell, executor, v. Quitman, 88 N. Y., 377 ; 1 Kent’s Com., 472, 473.

A decree will accordingly be entered admitting the will to probate, and the costs will be adjusted and provided for therein.