Dissenting Opinion
(dissenting).
The execution of the will alleged to be lost in this ease was, according to the evidence on the part of the proponents, executed in the presence of the two subscribing witnesses only.
One of these witnesses did not know the testatrix.
The character of the other witness for truth and veracity is impeached.
It is debatable whether the testatrix executed a will in the presence of these witnesses, but circumstances appearing in the case may justify the conclusion that a will was executed by her a number of years ago.
The only evidence of the contents of the will now admitted to probate is the unsupported evidence of the impeached witness, who produced a memorandum of its contents, which he claims
The will disposes of the property of the testatrix in a manner different from that in which it would go in case of intestacy. The fact that in the opinion of the court it may be a just and proper will cannot supply the lack of proof necessary to establish it.
In the absence of the requisite proof a will cannot be probated because it is deemed to be equitable in its disposition of property.
Conceding that a will was executed by the testatrix, to admit to probate the will in controversy upon the unsupported evidence of an impeached witness seems to me to be so clearly in disregard of the safeguards provided by the statute for the due execution of wills, that I am constrained to differ with the majority of the court, and vote to reverse.
For affirmance — The Chibe-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Collins, 'Bogert, Hendrickson, Nixon, Adams, Vredenburgh — 12.
For reversal — Van Syckel — 1.
Lead Opinion
The decree in this case is affirmed, upon the grounds stated for advising it in the opinion of Vice-Chancellor Emery.