112 N.Y.S. 609 | N.Y. App. Div. | 1908
The sole question is whether the record in the office of the surrogate of Kings county of a copy of the record of the will- of -Puller
The contention of the defendant is that since our statute requires that at least two witnesses to a will be examined by the surrogate in order to admit it to probate in this state, and prescribes the evidence which shall be taken instead where one or more of the witnesses is dead, absent from the state, or incompetent from any cause, so that two cannot be examined (Code Civ. Pro. §§ 2618-2620), the same course must be followed by a foreign court in order that a
There is no controlling decision in this state to the contrary of the foregoing. In a number of cases where only one witness was examined it did not appear from his testimony, or from the attestation clause, that the witnesses signed at the request of the testator, and it was therefore held that the record did not show that the will was executed in conformity with the laws of this state (Lockwood v. Lockwood, 51 Hun, 337; Estate of Langbein, 2 Civ., Proc. Rep. 226 ; Estate of Schearer, 1 id. 455 Matter of Nash, 37. Misc. Rep. 706). In Matter of Hagar (48 Misc. Rep. 43), the Surrogate decided that the record of a will proved in the probate court of another state by the testimony of only one of the witnesses should not be recorded in this state, and in the case of Matter of Coope (53 Misc. Rep. 509) the contrary was held. When
Judgment for the plaintiff.
Woodward, Jenks, Hooker and Rich, JJ., concurred.
Judgment for plaintiff on submission of controversy, with costs.