
    In the Matter of Proving the Last Will and Testament of Elizabeth W. Clark, Deceased; Frank A. Place, Petitioner and App’lt; Ezra Clark et. al., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1894.)
    
    Will—Probate.
    Since the amendment of 1888 to Section 2620 of the Code, a will maybe admitted to probate without taking the testimony'of an absent subscribing witness, unless asked for by one of the parties.
    Appeal from the decree of the Surrogate’s Court of Oswego county refusing to admit to probate the will of Elizabeth W. Clark, deceased.
    
      D. P. Morehouse, for app’lt; O. N. Bulger, for resp’t.
   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 tq make a will and not in under any restraint. Probate was however refused “ upon 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 Chap. 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 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 remitted to the surrogate’s court with directions to admit the will to probate. Matter of Will of Martin, 98 N. Y. 193.

Hardin, P. J., and Martin, J., concur.

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.  