
    In the Matter of the Probate of the Will of Bessie Levine, Deceased. Clara Nitsberg, Appellant; Benjamin Levine et al., Respondents.
   In a contested probate proceeding, the propounded instrument was denied probate on the ground that it was not executed as required by section 21 of the Decedent Estate Law, in that the decedent did not acknowledge her subscription to one of the two subscribing witnesses. The instrument bears the name of the decedent written in Hebrew or Yiddish characters. It was not signed in the presence of the subscribing witnesses. The subscribing witness Harry Lipetz saw the writing on the instrument; he is familiar with the foreign language and he recognized the writing as representing the decedent’s name; decedent declared to him that the instrument was her will, that it bore her signature; she requested him to sign it as a witness, and he did. The subscribing witness Eva Glaehman testified that the writing was on the instrument at the time the decedent presented it to her; that she, Mrs. Glaehman, does not know the interpretation of the foreign characters; that the decedent stated that the instrument was her will and requested Mrs. Glaehman to sign it as a witness, which was done. Mrs. Glaehman further testified that the decedent stated that the instrument bore decedent’s signature, but several other times she testified that the decedent did not so state. The Surrogate made the finding that the decedent did not acknowledge her signature to Mrs. Glaehman. Decree of the Surrogate’s Court, Kings County, reversed on the law and the facts, with costs, payable out of the estate, and the matter remitted to the Surrogate’s Court for proceedings not inconsistent with this decision. Under all the facts, the instrument should not have been rejected on the sole ground that the decedent made no express acknowledgment to the second subscribing witness that the subscription was that of decedent, where the instrument in fact had been subscribed by the decedent, where she declared the instrument to be her will, and where the signature on the will was clearly visible to this witness. (See Baskin v. Baskin, 36 N. Y. 416; Matter of Akers, 74 App. Div. 461, affd. 173 N. Y. 620, and Matter of Kilduff, 155 Misc. 509.) Nolan, P. J., Beldock, Murphy and Ughetta, JJ., concur; Wenzel, J., dissents and votes to affirm oh the opinion of the Surrogate (1 Misc 2d 221). [See post, p. 825.]  