107 Misc. 586 | N.Y. Sur. Ct. | 1919
This is a contested probate proceeding. The instrument offered for probate is holographic. The contestant is a sister of testator, who is his only next of kin and the sole executrix named in the paper propounded.
The only question before the surrogate concerns the regularity of the execution of the alleged last will and testament. There is no issue raised of undue influence, or of fraud or of lack of testamentary capacity. The matter came on for hearing on the Contested Probate Calendar in the regular way, when it was submitted, after argument, on the minutes taken previously in the examination of the subscribing witnesses under section 2611 of the Code of Civil Procedure.
Miss Nathan, one of the subscribing witnesses, is a
The other witness, Mr. MacManus, who admitted having a very poor memory, identified the words “ Witness, Suemas MacManus, December 27, 1917,” as being in his handwriting. He can recall practically nothing in connection with the execution .of the paper.
Miss Nathan’s recollection of what was on the paper when she signed the same is substantially as follows : She claims not to have seen even the signature of the testator, and does not remember now whether the signature of the other witness and the date, December 27, 1917, were on the paper immediately above the signature or not. She did not discuss the manner of executing the instrument with any- one until after the death of the testator, and although she admits a familiarity with the requisites of the proper execution of a will, she never expressed any opinion as to whether the paper was properly executed as a will or not, because, as she states, that is a matter for the surrogate to decide.
The will, being wholly holographic, in any other
I regret that the paper offered has not been proved. Miss Nathan must have seen testator’s signature, but he did not acknowledge the same to her, as he should have done. The instrument undoubtedly expresses the testamentary wishes of Mr. Paez, but in the face of the unqualified and positive testimony of Miss Nathan, which I do not care to characterize further, the instrument propounded will be denied probate.
Probate denied.