regular attestation clause in New York

1959A regular attestation clause signed by the witnesses and corroborated by other evidence, has been held to be sufficient to establish a will ‘ ‘ even against the positive evidence of the attesting witnesses to the contrary.” (Matter of Cottrell, 95 N. Y. 329, 335 ; Wyman v. Wyman, 118 App. Div. 109, 114 , affd. 197 N. Y. 524 ; Matter of Ewen, 206 App. Div. 198, 201 ; Matter of Sizer, 129 App. Div. 7 , affd. 195 N. Y. 528 .) The force of the evidence of the attestation clause will, of course, depend upon the circumstances of the case.

1914It is squarely held in Matter of Cottrell ( 95 N. Y. 329 ) that “A regular attestation clause, shown to have been signed by the witnesses and corroborated either by the circumstances surrounding the execution of the instrument, the testimony of other witnesses to the fact of due execution, or other competent evidence, is sufficient to establish the execution of a will signed by the testator, even against the positive testimony to the contrary of the subscribing witnesses.” To the same effect is Matter of Bernsee (supra).

1959A regular attestation clause signed by the witnesses and corroborated by other evidence, has been held to be sufficient to establish a will ‘ ‘ even against the positive evidence of the attesting witnesses to the contrary.” (Matter of Cottrell, 95 N. Y. 329, 335 ; Wyman v. Wyman, 118 App. Div. 109, 114 , affd. 197 N. Y. 524 ; Matter of Ewen, 206 App. Div. 198, 201 ; Matter of Sizer, 129 App. Div. 7 , affd. 195 N. Y. 528 .) The force of the evidence of the attestation clause will, of course, depend upon the circumstances of the case.

1936Its status is, therefore, substantially identical with that in Matter of Sizer ( 129 App. Div. 7 ; affd., 195 N. Y. 528 ) as noted on page 11: “ Consideration of the case is now come to the question of the weight and preponderance of the evidence at the close.

1959A regular attestation clause signed by the witnesses and corroborated by other evidence, has been held to be sufficient to establish a will ‘ ‘ even against the positive evidence of the attesting witnesses to the contrary.” (Matter of Cottrell, 95 N. Y. 329, 335 ; Wyman v. Wyman, 118 App. Div. 109, 114 , affd. 197 N. Y. 524 ; Matter of Ewen, 206 App. Div. 198, 201 ; Matter of Sizer, 129 App. Div. 7 , affd. 195 N. Y. 528 .) The force of the evidence of the attestation clause will, of course, depend upon the circumstances of the case.

1936Its status is, therefore, substantially identical with that in Matter of Sizer ( 129 App. Div. 7 ; affd., 195 N. Y. 528 ) as noted on page 11: “ Consideration of the case is now come to the question of the weight and preponderance of the evidence at the close.

1936Ct. Act, § 142) received practical construction in Brown v. Clark ( 77 N. Y. 369 ); Matter of Pepoon (91 id. 255 ), and Matter of Cottrell (95 id. 329 ), and was held to mean, in accordance with prior decisions cited, that the proof of circumstances bearing upon the question of the authenticity of the will in connection with a regular attestation clause duly executed, were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of the will.” (Matter of Hesdra, 119 N. Y. 615, 617 .) " The attestation clause is always some proof of the due execution o

1936Ct. Act, § 142) received practical construction in Brown v. Clark ( 77 N. Y. 369 ); Matter of Pepoon (91 id. 255 ), and Matter of Cottrell (95 id. 329 ), and was held to mean, in accordance with prior decisions cited, that the proof of circumstances bearing upon the question of the authenticity of the will in connection with a regular attestation clause duly executed, were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of the will.” (Matter of Hesdra, 119 N. Y. 615, 617 .) " The attestation clause is always some proof of the due execution o

1936Ct. Act, § 142) received practical construction in Brown v. Clark ( 77 N. Y. 369 ); Matter of Pepoon (91 id. 255 ), and Matter of Cottrell (95 id. 329 ), and was held to mean, in accordance with prior decisions cited, that the proof of circumstances bearing upon the question of the authenticity of the will in connection with a regular attestation clause duly executed, were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of the will.” (Matter of Hesdra, 119 N. Y. 615, 617 .) " The attestation clause is always some proof of the due execution o

1914(See, also, Matter of Nelson, 141 N. Y. 152 .) It is also' urged by the proponent that there was no direct proof that the will contained a revocation clause.

1959(Orser v. Orser, 24 N. Y. 51, 53 .) The recitals of such a clause have been held to be sufficient to overcome ‘ ‘ hostility to the proponent inducing testimony against the factum ’ ’ and to repel the testimony, which 1 ‘ because of some motivating cause, such witnesses may give in opposition to the execution, publication and witnessing of a will.” (Matter of Ewen, supra, p. 201.) The court instructed the jury that they could take into account the certificate of attestation, but that they must consider it in connection with all of the other facts and circumstances in this case.

1959A regular attestation clause signed by the witnesses and corroborated by other evidence, has been held to be sufficient to establish a will ‘ ‘ even against the positive evidence of the attesting witnesses to the contrary.” (Matter of Cottrell, 95 N. Y. 329, 335 ; Wyman v. Wyman, 118 App. Div. 109, 114 , affd. 197 N. Y. 524 ; Matter of Ewen, 206 App. Div. 198, 201 ; Matter of Sizer, 129 App. Div. 7 , affd. 195 N. Y. 528 .) The force of the evidence of the attestation clause will, of course, depend upon the circumstances of the case.

1959A regular attestation clause signed by the witnesses and corroborated by other evidence, has been held to be sufficient to establish a will ‘ ‘ even against the positive evidence of the attesting witnesses to the contrary.” (Matter of Cottrell, 95 N. Y. 329, 335 ; Wyman v. Wyman, 118 App. Div. 109, 114 , affd. 197 N. Y. 524 ; Matter of Ewen, 206 App. Div. 198, 201 ; Matter of Sizer, 129 App. Div. 7 , affd. 195 N. Y. 528 .) The force of the evidence of the attestation clause will, of course, depend upon the circumstances of the case.

1954The court denied probate, and went on to say (p. 236): “It is not denied that a will may be proved, even against the evidence of the subscribing witnesses, by other sufficient evidence, and that the due execution of a will may be inferred from a regular attestation clause, and all the surrounding circumstances tending to show due execution.” Another case cited by the objector is Lewis v. Lewis ( 11 N. Y. 220 ) where one witness positively stated that there was no publication nor did she see the signature of the alleged testatrix.

1936Ct. Act, § 142) received practical construction in Brown v. Clark ( 77 N. Y. 369 ); Matter of Pepoon (91 id. 255 ), and Matter of Cottrell (95 id. 329 ), and was held to mean, in accordance with prior decisions cited, that the proof of circumstances bearing upon the question of the authenticity of the will in connection with a regular attestation clause duly executed, were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of the will.” (Matter of Hesdra, 119 N. Y. 615, 617 .) " The attestation clause is always some proof of the due execution o

1927But here there is nothing from which the inference of due execution can be legitimately drawn.” In Mitchell v. Mitchell ( 16 Hun, 97 ; affd., 77 N. Y. 596 ), where there was also an attestation clause and where the testator declared the instrument to be his will to both of the witnesses, the court denied probate on the ground there was no acknowledgment by the testator of his signature, to the witnesses, where the signature of the testator was not written in the presence of the witnesses, and where it did not affirmatively appear that one of the witnesses saw the testator’s signature.

1914It is squarely held in Matter of Cottrell ( 95 N. Y. 329 ) that “A regular attestation clause, shown to have been signed by the witnesses and corroborated either by the circumstances surrounding the execution of the instrument, the testimony of other witnesses to the fact of due execution, or other competent evidence, is sufficient to establish the execution of a will signed by the testator, even against the positive testimony to the contrary of the subscribing witnesses.” To the same effect is Matter of Bernsee (supra).

1884There is abundant authority for sustaining the probate of a will, notwithstanding the denial, by one or both of the subscribing witnesses, of the observance of the proper legal forms, in cases where there is a regular attestation clause, and the surrounding circumstances tend to show the due execution of the will (Trustees of Theological Seminary v. Calhoun, 25 N. Y., 422 ; Kinne v. Kinne, 2 T. & C., 391; Matter of Cottrell, 95 N. Y., 329 ).