In re the Estate of McAvish

161 Misc. 887, 293 N.Y.S. 246, 1937 N.Y. Misc. LEXIS 1495

• Court: New York Surrogate's Court
• Decided: January 20, 1937
• Status: Published

Opinion

Delehanty, S.

The court finds as a fact that deceased signed the instrument propounded as her will in the presence of Isidor Rothenberg and Margaret M. Mitchell; that she declared the instrument to be her will; that she requested each of the persons there present to sign as her witnesses and that they did sign in her presence and in the presence of each other.

The fact that the signature Margaret M. Mitchell made on that occasion is below the attestation clause and the signature of Isidor Rothenberg is above it does not affect adversely the right of proponent to have the will admitted. Neither does the fact that the witness Isidor Rothenberg was a notary public and that he described himself as such and put his stamp under his name operate to alter his character as a subscribing witness. The court holds that he was asked to act as a subscribing witness because he was a notary public and because deceased desired to have what probably seemed to her the greater value which attached to a person holding official place. The court holds expressly that the act of signing by Isidor Rothenberg was the act of a subscribing witness.

The case of Matter of McDonough (201 App. Div. 203) is not in point here. There the trial court found that the notary who had signed the propounded paper had acted solely in his official capacity as an administrator of an oath. He had certified in his official capacity that the instrument was sworn to before him. No such situation is here presented. The act of Isidor Rothenberg was not notarial.

All statutory requirements having been complied with and there being admitted by the contestants the possession of testamentary capacity, a decree may be submitted, on notice, admitting the propounded paper to probate as the will of deceased.