In re the Probate of the Will of Kitty ( 1958 )

Joseph A. Cox, S.

The propounded writing is a holograph signed at the end by the testatrix and attested by two witnesses. The attestations took place in two separate rooms of the same house. One witness, Elias Slap, testified to a valid execution. He added that he then took the will to the room occupied by the other witness, Alice Kludjian. She testified that he presented the instrument to her, said it was the last will and testament of the decedent, that he had already witnessed its execution, and that the decedent requested that she act as the second witness. She testified, however, that the testatrix was not present, nor had she ever published the instrument as her will or requested her to sign, but that later in the evening the testatrix thanked her for having acted as a witness. The testimony of the witness Slap in this regard is to the effect that while his recollection is hazy on the subject, he was not in a position to testify that the testatrix did not publish the instrument to Alice Kludjian or request her to sign, and that as far as his recollection was concerned the testatrix might very well have complied with the statute in respect of Alice Kludjian’s attestation.

“ If a subscribing Avitness has forgotten the occurrence, or testifies against the execution of the will, or Avas not present Avith the other witness at the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.” (Surrogate’s Ct. Act, § 142.) Such circumstances are present in this proceeding. In addition to the fact that the instrument is a holograph, it contains provisions in favor of the íavo sole distributees of the decedent. The testimony of the witness Slap as to a valid execution should lend some ground to the assumption that the same procedure was followed as to the other witness. Her attitude before the court was one of evasion, and the court is inclined to discount her testimony. The instrument is admitted to probate.

Submit decree accordingly.