Opinion
June, 1914.
Millard Thornton (Hugh A. Thornton, of counsel), for proponent.
Thomas G. Prioleau, for contestant.
The contestants of the probate deny that the paper offered was subscribed by the testator. In other words, they assert that the subscription is not genuine. But the attesting witnesses are very positive, and I can detect no motive on their part to fabricate evidence. It is attempted to impeach one of the attesting witnesses by declarations contrary to his certificate of attestation and his sworn testimony. Such admissions are not strong evidence to counter-vail a certificate of attestation or sworn testimony and, when such admissions are testified to only by a contestant, they are of trifling weight. Matter of Klinzner, 71 Misc. 635, 636. Whether declarations of even a deceased attesting witness, contrary to his attestation, are ever competent has been much doubted. In England the rule is settled that they are not competent. Stobart v. Dryden, 5 L.J. Ex. 218, 1 M. W. 615. Doe v. Ridgway, 4 Barn. Ald. 52, cited in Matter of Hesdra, 119 N.Y. 615, to the contrary is not the law of England as assumed in Matter of Hesdra. In Matter of Johnson, 7 Misc. 220, the declarations of the attesting witness I notice were received, but ignored in the conclusion. The point of evidence was not much discussed. It seems to me that the ruling in Matter of Hesdra should be confined to the particular facts of that case and never be extended. Assuming that the testator's subscription is genuine in this proceeding, the proof of execution is amply sufficient to entitle the paper propounded to probate. Now, is the subscription genuine? I am satisfied from the evidence that it is, and that the paper was subscribed by the testator in person. The expert called for the contestant gave opinion evidence that the subscription to the paper propounded was not that of testator; but I was not impressed by his testimony, and I prefer to credit that of the attesting witnesses, which is very positive on this point. The decree will be for probate.
Probate decreed.