Appeal No. 2 | N.Y. App. Div. | Nov 15, 1931
Decree of the Surrogate’s Court of the county of Queens, rejecting for probate the documents offered as the last will and testament and codicil of Benjamin F. Lane, deceased, reversed upon the law and the facts and a new trial ordered, with costs, payable out of the estate, to appellant to abide the event. The finding and conclusion contained in the decision are reversed. The subscribing witnesses to the document offered for probate as the last will and testament of the deceased having testified that they had forgotten the occurrence of the execution of the will, proof of the handwriting of the testator and the subscribing witnesses was competent and the surrogate erred in excluding it. (Surr. Ct. Act, § 142; Civ. Prac. Act, § 332.) The question of the factum