
    N. Y. SURROGATE’S COURT.
    In the Estate of Sarah A. Wright, deceased.
    
      Code of Civil Procedure, section 2620 — Witt—Subscribing witnesses—Proof of handwriting sufficient to establish the execution of a will.
    
    Where a will contained a full attestation clause, the mere non-recollection of a witness, in respect to the circumstances of its execution, will not justify a finding that the statutory requirements have been disregarded.
    
      May, 1884.
   Rollins, S

—An instrument purporting to be this decedent’s last will and testament has been propounded for probate. It is dated May 20, 1864, and purports to be signed by Thomas J. Hall and Charles B. Coffin as subscribing witnesses. Mr. Hall, formerly one of the firm of William Hall & Sons, music publishers in this city, is now dead. His signature has been satisfactorily proved, and so also has that of the decedent herself. Mr, Coffin, the other subscribing witness, is now engaged in the produce business at Ho. 65 Pearl street. While he fully identifies his own signature, he has no recollection whatever of the circumstances under which it was written ; but he is positive that he would never have put it upon this disputed paper unless he had known that every allegation in its attestation clause was true. That attestation clause is in the words following:

“ The above instrument was subscribed by the said Sarah A. Wright, in our presence, and acknowledged by her to each of us, and she at the same time declared the above instrument so subscribed to be her last will and testament, and we, at her request, have signed our names as witnesses thereto.
“ New York, May 20, 1864.
“ C. B. COFFIN.
" THOMAS J. HALL.”

Section 2620 of the Code of Civil Procedure provides that if all the subscribing witnesses to a written will are dead, * * * or if a subscribing witness has forgotten the occurrence, * * * the will may, nevertheless, 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.” This provision does not materially differ from that contained in chapter 460 of the Laws of 1837. The latter has often been under consideration by the courts of this state. In Butler agt. Benson (1 Barb., 526 [1847]), it was decided at the Washington special term of the supreme court, that “ when the witnesses are dead, or from lapse of time do not remember the circumstances attending the attestation, the law, after the diligent production of all the evidence then existing, if there are no circumstances of suspicion, presumes the instrument properly executed, particularly where the attestation clause is full.”

In Nelson agt. McGiffert (31 Barb. Ch., 158 [1848]) the same doctrine was maintained by the chancellor.

It was again asserted by the surrogate of this county in Peebles agt. Case (2 Bradf., 226, 1852), and by the Madison general term of the supreme court in Cheeney agt. Arnold (18 Barb., 434 [1854]).

The facts in the case of Orser agt. Orser (24 N. Y., 51 [1861] ) were almost precisely like those with which we have here to deal. The attestation clause was full. There were two subscribing witnesses, one of whom had died before trial. His signature was proved, and,- as in the case at bar, the body of the instrument was shown to be im his handwriting. The other witness was examined,, but could not remember that the decedent declared the instrument there in question to be his will, or that he acknowledged’ his signature-thereto. Seldeit, J., pronouncing the opinion of the court, said: “ A will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate, although none of the subscribing witnesses are able to swear from recollection that the formalities required by the statute were complied with, and even although some of them should swear positively that they were not, if the other evidence warrants the inference that they were.”

The court held that, upon the facts there appearing, the jury were warranted in finding the due execution of the will.

Moore agt. Griswold (1 Redf., 388 [1863]) sustained the proposition that, in the absence of suspicious circumstances or contradictory evidence, proof of the signatures of the testator and of the deceased, subscribing witnesses, were sufficient to establish the execution of a will.

In Rider agt. Legg (51 Barb., 260 [1868]) at the Rensselaer special term, a will was established upon proof of the signatures of the testator and of two subscribing witnesses, both of whom were dead. There was a full attestation clause and an absence of circumstances calculated to arouse suspicion. The court cited, with approval, some of the cases above named, as well as Brinkerhoff agt. Remsen (8 Paige, 491 [1840]); Chaffe agt. Baptist Miss. Con. (10 Paige, 85 [1843]); Everitt agt. Everitt (41 Barb., 385 [1864]); and Lawrence agt. Norton (45 Barb., 448 [1866]).

In the Matter of Kellum (52 N. Y., 517 [1873]), chief justice Church, pronouncing the opinion of the court, declared that whenever the attestation clause is full, and the signatures are satisfactorily proved and the circumstances are corroborative of due execution, and there is no evidence disproving a compliance (with the requirements of the statute), it may be justly presumed that all those requirements have been observed, “ although the witnesses are unable to recollect the execution or what took place at the time.”

In Brown agt. Clark (77 N. Y., 369 [1879]), in Rugg agt. Rugg (83 N. Y., 592 [1881]), and In Matter of Pepoon (91 N. Y., 255 [1883]), the court of appeals reasserted the proposition that where a will contained a full attestation clause, the mere non-recollection of a witness in respect to the circumstances of its execution would not justify a finding that the statutory requirements had been disregarded.

Upon the authorities which I have cited, and in the absence of any circumstances throwing doubt or suspicion upon the genuineness of the instrument here propounded, I hold that that instrument is entitled to probate. A decree may be entered accordingly.  