
    In the Matter of the Estate of Otto Oliver Koecher, Deceased.
    Surrogate’s Court, New York County,
    January 15, 1934.
    
      Herman Wollitzer, for the proponent.
    
      Bertram L. Kraus, for the contestant.
    
      Nathan Abraham, special guardian.
   Delehanty, S.

The instrument propounded contains an attestation clause subscribed by three witnesses. This clause is in the usual form reciting concurrent presence of testator and all witnesses. Concededly such concurrence of presence and action was in truth lacking and concededly, therefore, the attestation clause certifies to acts or circumstances which did not exist.

Apparently the fact is that testator procured the signatures of the subscribing witnesses successively at their respective places of business and with none but the testator and the respective witnesses present at such time. Such form of procurement of signature would be wholly consistent with a valid execution. Only one of the witnesses testifies that he knew the instrument to be a will. This witness was asked (as the others testified they had been asked) to sign the paper without reading it or without knowledge of its contents. He declined to do this and because of his refusal to sign a paper of which he did not know the purport testator gave him the paper to read and the witness ascertained that the paper was decedent’s intended will. The court holds that that transaction constituted a sufficient publication of the will to this particular witness.

One other of the witnesses testified explicitly and unqualifiedly that when he signed the paper it bore no other signature. .The signature of this witness appears on the instrument opposite the place where the instrument now bears testator’s signature. The witness could not have failed to see testator’s signature had it been on the instrument. It follows that the court must find that the witness has testified falsely or it must find that proof of the due execution of the instrument is not aided by the testimony of this particular witness nor by the presence of his signature thereon.

The third witness testified that the instrument when he signed it was concealed by a newspaper except as to the places where he inscribed his name. He, too, says that there was no publication of it as a will. He says that he did not read the paper. He says that he suspected the paper was a will and because he suspected it to be such did not hesitate to put his name on it. He says he asked decedent what he was signing and decedent made only some jesting reply.

Assuming that the recital of the testimony thus made truly reports the transactions of decedent and the witnesses in respect of the instrument propounded, it is plain that there was no execution of the paper such as is required by the statute. Counsel for proponent urges that there is before the court sufficient to warrant a finding that the witnesses have conspired with the family of decedent to destroy the will. The courts are astute to prevent the consummation of such conspiracies and are not helpless merely because witnesses testify against due execution. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422, and note thereto.)

Here, however, the propounded paper is not aided by proof of joint presence of decedent and the witnesses. There is no circumstance which negatives the explicit testimony negativing due execution. There is, it is true, an attestation clause but it concededly does not truly report the transactions. There is nothing else. Either the court must hold that three business men not related in blood to decedent or to any member of his family have perjured themselves upon this hearing in pursuance of a conspiracy to destroy this will or in the alternative the court must hold that the statutory requirements of due execution were not pursued and that the propounded paper is not the will of decedent.

After hearing the witnesses the court is not willing to indulge in the first presumption and accordingly determines that the instrument is not entitled to probate.

Submit decree accordingly.  