1 Abb. Ct. App. 441 | NY | 1867
The statute upon this subject is as follows: “If any person shall be a subscribing witness to the execution of any will, when in any beneficial devise, legacy, interest, or appointment of any real or personal estate, shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, &e., shall be void, so far only
There being but two witnesses to the will, including the legatee, it is manifest that his name is indispensable to the due execution thereof.
The statute which regulates the proof óf wills, bearing upon the present point, is as follows: “ When any one or more of the subscribing witnesses to such will shall be examined, and the other witnesses are dead, or reside out the State, or are insane, then such proof shall be taken of the handwriting of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances as would be sufficient to prove such will on a trial at law.” 2 R. S. 58, § 13. “ If it shall appear upon the proof taken, that such will was duly executed; that the testator at the time of executing the same was in all respects competent to devise real estate, and not under restraint, the said will and the proofs and examinations so taken shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him.” Id. § 14.
Other sections provide that the record of the same shall be competent evidence in all the courts of the State.
It has long been the settled law of this State, that the execution of a will may be proved, on a trial at law, by one witness, if he is able to prove its perfect execution. Jackson v. Vickory, 1 Wend. 415. It is manifest that it is not indispensable in all cases that both the subscribing witnesses to the execution of a will should appear before the surrogate to establish its execution ; as, when one of the witnesses is dead, or resides out of
The appellant claims that the expression, “ without the testimony of such witness,” should not be confined to the bearing witness or giving evidence by such subscribing witness, in the ordinary sense of those words, but wras intended to include all evidence that such person was a witness or took any part in the transaction. The expression in section 13, which I have quoted, that proof should be taken of the handwriting of the witness, of the testator, and of other circumstances sufficient to prove the will on a trial at law, and the necessary evidence on such trial at law, rebut this idea.
The will could have been proved without the testimony of Parker. The devise to him, does not, therefore, become void, and the present action is well brought.
The judgment below should be affirmed.
[After' stating briefly the facts.] — As Mr.. Parker resided out of the State, this examination of Mr. Keon having been had, no other testimony was necessary to the proof, of the will, except proof of the handwriting of the testator, and of the non-resident witness, Joel Parker, (2 R. S. 58, § 13); and, therefore, as the will could have been proved without the testimony of Joel Parker, the legacy to him is not void, 2 R. S. 65, § 50; Caw v. Robertson, 5 N. Y. (1 Seld.) 125.
The judgment should be affirmed.
All the judges concurred.
Judgment affirmed, with costs.