1 Connoly 400 | N.Y. Sur. Ct. | 1889
The evidence fully establishes that at the time the alleged testatrix executed the paper propounded she was of sound mind and under no restraint nor subject to undue influence. The only point in question is whether the substantial requirements of the statute were complied with in executing the paper.
The proof on this point is almost wholly confined' to the testimony of one of the subscribing witnesses, Margaret J. B. Erwin, which was taken by commission - There were three subscribing witnesses, one of whom the proponent has been unable to find, and whose signature is illegible.
.Another subscribing witness, Mrs. Eliza H. Townley,. identified her signature, but the circumstances attending the execution of the paper had passed entirely from her memory. She also testified that the body of the paper is in the handwriting of her husband.
On a subsequent examination she testified that Mr. Townley showed the testatrix where to sign the paper, and that she, the witness, saw her sign, and at the time of such signing, the three subscribing witnesses were present; that after the testatrix had signed, Mr. Townley read aloud the attestation clause in her presence, and in the presence of the three witnesses before they signed as witnesses. Cyrus W. Loder and Sarah A. Loder, called by proponent, positively identified the signature of the testatrix. Under section 2620, Code of Civil Procedure, this paper is established as the last will and testament of Jane W. Townley, by the testimony of Eliza H. Townley, who identifies her own signature, and by that of Margaret J. B. Erwin,