
    (75 Hun, 471.)
    In re CLARK’S WILL. In re PLACE.
    (Supreme Court, General Term, Fourth. Department.
    February 15, 1894.)
    Wills—Probate—Subscribing Witness without the State.
    Code Civ. Proc. § 2620, as amended by Laws 1888, c. 508, providing that where a subscribing witness is absent from the state his testimony may be taken by commission on the application of either party, is permissive, and a will may be admitted to probate without taking the testimony of an absent witness.
    Appeal from surrogate’s court, Oswego county.
    Proceedings for the probate of the will of Elizabeth W. Clark, deceased. From a decree refusing to admit the will to probate, Frank A. Place, the petitioner, appeals. Reversed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    D. P. Morehouse, for appellant.
    C. N. Bulger, for respondents.
   MERWIN, J.

In this case it appeared that one of the subscribing witnesses was absent from the state, but that her place of residence out of the state was known, and her evidence could be taken by commission. It was not so taken. Upon the evidence in fact given, it was found by the surrogate that the will was duly executed in the manner required by law, and that the testatrix at the time of executing it was in all respects competent to make a will, and not under any restraint. Probate was, however, refused “upqn the sole ground that the court has no power or jurisdiction to admit said will to probate without causing the testimony of said absent witness to be taken by commission out of the state, as required by sections 2619 and 2620, Code of Civil Procedure.” The provisions of section 2620, as it stood prior to 1888, would probably justify the conclusion of the surrogate that it was necessary to obtain the evidence of the absent witness. That section, however, was amended by chapter 508 of the Laws of 1888, and, as it now stands, it does not require the evidence of the absent witness to be taken, unless it is asked for by one of the parties. In the present case it was not asked for by any of the parties, and there was in fact no opposition to the proof of the will. We think that the surrogate erred in refusing to admit the will to probate. It follows that the decree should be reversed, and the proceedings be remitted, to the surrogate’s court, with directions to admit the will to probate. In re Martin’s Will, 98 N. Y. 193.

Decree reversed, with costs to the appellant, payable out of the estate, and proceedings remitted to the surrogate’s court, with directions to admit the will to probate. All concur.  