Opinion
December 7, 1953.
Present — Nolan, P.J., Adel, Wenzel, MacCrate and Beldock, JJ.
In a contested probate proceeding, an instrument without an attestation clause was offered for probate. On the trial of framed issues, the petition was amended to offer for probate a similar instrument with an attestation clause. The single issue was that of due execution. The court withdrew from the jury's consideration the instrument without an attestation clause. The jury found in proponent's favor against the testimony of the subscribing witnesses, and the instrument with the attestation clause was admitted to probate as the last will and testament of the decedent. The contestant appeals from the decree insofar as it admitted the will to probate. Decree of the Surrogate's Court, Westchester County, insofar as appeal is taken, unanimously affirmed, with costs to respondent, payable out of the estate. No opinion.