46 Misc. 2d 656 | N.Y. Sur. Ct. | 1965
The testatrix, Alice Leitstein, purportedly executed her last will and testament on August 26, 1964 before three witnesses. The instrument appears to be of a natural disposition leaving her entire estate to her husband, Herbert Leitstein, the petitioner herein and in the event he predeceased, everything is to go to her two adult daughters. The daughters have signed waivers and consent to the admission of this instrument to probate, which have been duly filed with this court.
The instrument itself consists of three pages. At the end of the second page there appears the signature of the testatrix. The third page purports to be an attestation clause, signed by all three witnesses at the end thereof. However, the clause is in affidavit form pursuant to the requirements of section 142-a of
“ State of New York County of Queens
“The deponents, Ruth Cohen, Valerie Levy and Bernard Levy being severally duly sworn, depose and say: that the within Testatrix, alice leitsteix, in the presence of the deponents, all of them together, subscribed the within Will at the end thereof, on the 26th day of August, 1964, at 192-17 Union Turnpike, Flushing, N. Y. and at the same time declared the same to be her Last Will and Testament, that thereupon, the deponents, at the request of the said Testatrix and in her presence, and in the presence of each other, signed the said Will at the end thereof, as witnesses thereto; that at the time of execution of the said Will, the said Testatrix was over the age of twenty-one years, and in the opinion of each of the deponents was of sound mind, memory and understanding, under no restraint, and in all respects competent to make a Will; that the deponents made this affidavit to establish the genuineness of the said Will and the validity of its execution, at the request of the said.Testatrix.
Ruth Cohen 79-38 209 St. Flushing, N. Y.
Valerie Levy 97-25 64 Ave., Regó Pk. N. Y.
Bernard Levy 97-25 64th Ave. Regó Pk.
‘1 Severally subscribed and sworn to before me this 26th day of August, 1964.
Mildred Siegel, Notary Public
Mildred Siegel, Notary Public, State of New York No.41-8989515Queens County Term expires March 30, 1965.”
The signatures of these three witnesses are at the end of the will as required by section 21 of the Decedent Estate Law and there are no dispositive or essential provisions following the signature of the testatrix, or the witnesses. (See Matter of Beck, 6 App. Div. 211, affd. 154 N. Y. 750; Matter of Winters, 277 App. Div. 24, affd. 302 N. Y. 666.)
The language in the attestation clause which uses the past tense to describe the act of witnessing the will should not affect the compliance with section 21. (See Matter of Hunt, 110 N. Y. 278.)
The attestation clause may also serve as an affidavit under section 142-a of the Surrogate’s Court Act.
Accordingly, probate is granted.
