Robinson v. Smith , 13 Abb. Pr. 359 ( 1860 )

By the Court.^*— Johnson, J.

—I amof the opinion that the surrogate very properly admitted both wills to probate. I have examined the case and the authorities attentively, and can add nothing to the elaborate and satisfactory reasons assigned by the surrogate in his opinion to support his determination. There was positive evidence before him in regard to the last will, showing that all of the requirements of the statute were complied with when it was executed by the testator ; and the surrogate gave credence to this testimony in opposition to that of the two subscribing witnesses, whose testimony, if entitled to full credit, tended most strongly to a contrary conclusion. It is quite obvious that the surrogate, before whom all the witnesses were examined and cross-examined, had a far better opportunity of forming a correct judgment on this question of the credibility of the several witnesses than this court can have. Besides, the probabilities are all in favor of the evidence to which he gave credence, in view of the surroundings of the drawing and executing the will. It would, in my opinion, be unwise, therefore, to interfere with the decision of the surrogate on this subject.

The controversy is 'confined mainly to the question of the due execution of the last will, which the surrogate, after a very careful and thorough examination, has found to have been duly executed and published by the testator.

The revocation of the first will by the execution and publication of the last, was pro tanto only. (Nelson a. McGiffert, 3 Barb. Ch., 158 ; Brant a. Willson, 8 Cow., 56.)

The decree of the surrogate must therefore be affirmed.

* Present, Smith, Knox, and Johnson, JJ.