In re Proving the Last Will & Testament & Codicil Thereto of Lane

234 A.D. 775

Opinion

Decree of the Surrogate’s Court of the county of Queens, rejecting for probate the documents offered as the last will and testament and codicil of Benjamin F. Lane, deceased, reversed upon the law and the facts and a new trial ordered, with costs, payable out of the estate, to appellant to abide the event. The finding and conclusion contained in the decision are reversed. The subscribing witnesses to the document offered for probate as the last will and testament of the deceased having testified that they had forgotten the occurrence of the execution of the will, proof of the handwriting of the testator and the subscribing witnesses was competent and the surrogate erred in excluding it. (Surr. Ct. Act, § 142; Civ. Prac. Act, § 332.) The question of the factum of the will was one for the jury. (See Matter of Sizer, 129 App. Div. 7; Matter of Ewen, 206 id. 198; Wyman v. Wyman, 118 id. 109; affd., 197 N. Y. 524.) Lazansky, P. J., Young, Kapper, Hagarty and Seudder, JJ., concur.