In re the Probate of the Will of Levine

New York Surrogate's Court

In re the Probate of the Will of Levine

1 Misc. 2d 221, 149 N.Y.S.2d 843, 1954 N.Y. Misc. LEXIS 1907

CourtNew York Surrogate's Court

DecidedMay 11, 1954

StatusPublished

Cited by1 cases

This text of 1 Misc. 2d 221 (In re the Probate of the Will of Levine) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Probate of the Will of Levine, 1 Misc. 2d 221, 149 N.Y.S.2d 843, 1954 N.Y. Misc. LEXIS 1907 (N.Y. Super. Ct. 1954).

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Opinion

Rubenstein, S.

In this contested probate proceeding, the court determines that the propounded instrument was not executed as required by section 21 of the Decedent Estate Law. This'statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be [222]*222urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2 (Matter of Banta, 204 Misc. 985). This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to he her signature to said witnesses as required by the statute.

The objections are sustained and probate is denied.

Proceed accordingly.

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Rubenstein, S.

In this contested probate proceeding, the court determines that the propounded instrument was not executed as required by section 21 of the Decedent Estate Law. This'statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be [222]*222urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2 (Matter of Banta, 204 Misc. 985). This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to he her signature to said witnesses as required by the statute.

The objections are sustained and probate is denied.

Proceed accordingly.

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1 Misc. 2d 221, 149 N.Y.S.2d 843, 1954 N.Y. Misc. LEXIS 1907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-levine-nysurct-1954.

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