
    Matter of the Probate of the Last Will and Testament of David F. Halstead, Deceased.
    
      (Surrogates Court, Kings County,
    
    
      October, 1906.)
    Wills: The testamentary instrument or act—Execution of Will-Evidence OF EXECUTION-SUFFICIENCY OF EVIDENCE; PROBATE, ESTABLISHMENT AND ANNULMENT—PROBATE-IN GENERAL—ESTABLISHMENT OF LOST OR FRAUDULENTLY DESTROYED WILL.
    Where, subsequently to testator’s death, his will is destroyed and its contents are sufficiently proved by two credible witnesses and declarations of the testator to the effect that he had made a will are shown, probate will be denied in the absence of proof of the handwriting of deceased subscribing witnesses and of any other proof of the execution of the will.
    Proceeding upon the probate of a will.
    John H. Kemble, for petitioner; Roy, Watson & Haumer, for contestant.
   Church, S.

This case is illustrative of what has often seemed to me to be a serious defect in the law applicable to probate proceedings, viz., that there is no provision made for the custody of a will between the time of its execution and its presentation for probate. It emphasizes the necessity of providing a legal depository for all documents intended to take effect as wills where they should remain from the time of their execution until passed upon in the course of probate.

But the court has no power to create new law. Its duty is to decide questions arising upon the facts presented. As the substantial facts of the case at bar, together with the inferences to be drawn therefrom, are undisputed, there remains for consideration only a question of law.

It appears that there was in existence, for many years prior to the death of the deceased, a paper, which we may regard as a will, by the provisions of which the entire estate of the deceased was given to the proponent. It is likewise shown that this instrument was in existence subsequent to his death and. was thereafter destroyed. The contents of the paper have been sufficiently proved, in accordance with the requirements of section 1865 of the Code of Civil Procedure, by two credible witnesses. Both the persons whose names are affixed to the document are dead. The question to be determined, therefore is whether satisfactory proof has been given, as required by section 2620 of the Code, in regard to its execution. That section provides that if all the subscribing witnesses 'are dead, the will may be established upon proof of the handwriting of the testator and of the subscribing witnesses and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.

The proponent’s proof falls far short of these requirements. Except the proof in relation to the handwriting of the testator,, there is no evidence that the names purporting to have been written by the subscribing witnesses are in their handwriting and there is nothing to show the execution of the will other than testimony as to statements of the deceased to the effect that he had made a will. Under these circumstances there is no discretion left with me, and, therefore, no course open but to refuse to admit the paper in question to probate as the will of the deceased.

Probate denied.  