In re Proving the Last Will & Testament of Levy

Decree reversed on the law, with costs to appellant payable out of the estate, and the matter remitted to the Surrogate’s Court, Queens county, with directions to admit the will to probate. In our former decision (Matter of Levy, 234 App. Div. 868) we held that the proponent madé a prima facie case for the probate of the proposed will. On this appeal it appears that formal proof was made concerning the mental competence of the testatrix and that she was free from restraint; and the signature to the will and the signatures to the attestation clause in the usual form, reciting its due execution, were established by the attesting witnesses themselves. These witnesses disclaimed any recollection whatever of the execution of the will, which had occurred about nineteen years before they gave their testimony. Having given such disclaimer of any recollection, testimony of one of the witnesses that the testatrix did not at the time publish the will, based on the argument that if she had the witness would have remembered it, is of no value whatever to contradict the statements in the attestation clause. (Matter of Cottrell, 95 N. Y. 329, 336.) The oral testim ny, slight and unconvincing in its character and based entirely on an alleged declaration of the testatrix concerning the drafting of a subsequent will, had no effect to establish the revocation of the will here considered. The proof made, taken in connection with the admitted signatures and the attestation clause, and standing uncontradieted, was sufficient to warrant the admission of the will to probate. (Surr. Ct. Act, § 142; Jauncey v. Thorne, 2 Barb. Ch. 40, 59; Matter of Cottrell, supra; Matter of Sizer, 129 App. Div. 7; affd., 195 N. Y. 528; Matter of Ewen, 206 [820] App. Div. 198, 201; Matter of Walker, 67 Misc. 6.) Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.