Graber v. Haaz

2 Dem. Sur. 216

• Court: New York Surrogate's Court
• Decided: February 15, 1883
• Status: Published

Opinion

The Surrogate.

One of the subscribing witnesses to the instrument offered as decedent’s will has not been produced. There is no proof that he is dead, or a lunatic, or incompetent to testify. There is some evidence tending to show, though not establishing to my satisfaction, that he is absent from the State. It certainly does not appear that he might not, by. due diligence, be found either in the State or out of it, and that his testimony might not be thereupon obtained by a commission.

Now, where there are only two subscribing witnesses, the examination of both is essential, if both are-accessible (Code Civ. Pro., §§ 8618, 8619, 8680).

This instrument must, therefore, be refused probate. unless the proponents take steps to examine the subscribing witness Hope, orally or by commission, or to establish more satisfactorily their inability so to do.