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Court Discusses Contested Probate Proceeding


The two cases hereunder is about probate proceedings.

In the first case involves a contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other. Since decedent did not subscribe her name in the presence of the witness, Glackman, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read (1 Davids on New York Law of Wills, § 301).

The Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute.

Accordingly, the objections are sustained and probate is denied.

In a second case of contested probate proceeding, the propounded instrument was denied probate on the ground that it was not executed as required by section 21 of the Decedent Estate Law, in that the decedent did not acknowledge her subscription to one of the two subscribing witnesses.

The instrument bears the name of the decedent written in Hebrew or Yiddish characters. It was not signed in the presence of the subscribing witnesses. The subscribing witness Harry Lipetz saw the writing on the instrument; he is familiar with the foreign language and he recognized the writing as representing the decedent’s name; decedent declared to him that the instrument was her will, that it bore her signature; she requested him to sign it as a witness, and he did.

The subscribing witness EG testified that the writing was on the instrument at the time the decedent presented it to her; that she, Mrs. EG, does not know the interpretation of the foreign characters; that the decedent stated that the instrument was her will and requested Mrs. EG to sign it as a witness, which was done. Mrs. EG further testified that the decedent stated that the instrument bore decedent’s signature, but several other times she testified that the decedent did not so state. The Surrogate made the finding that the decedent did not acknowledge her signature to Mrs. EG.

Decree of the Surrogate’s Court, Kings County, reversed on the law and the facts, with costs, payable out of the estate, and the matter remitted to the Surrogate’s Court for proceedings not inconsistent with this decision.

Under all the facts, the instrument should not have been rejected on the sole ground that the decedent made no express acknowledgment to the second subscribing witness that the subscription was that of decedent, where the instrument in fact had been subscribed by the decedent, where she declared the instrument to be her will, and where the signature on the will was clearly visible to this witness. See Baskin v. Baskin, 36 N.Y. 416; Matter of Akers, 74 App.Div. 461, 77 N.Y.S. 643, affirmed 173 N.Y. 620, 66 N.E. 1103; Matter of Kilduff’s Estate, 155 Misc. 509, 280 N.Y.S. 198.

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