Opinion
November, 1892.
George W. Watkins, for proponent.
Following the decision in Matter of Reynolds, 4 Dem. 68, I think probate must be denied. "Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, competent and able to testify." § 2618, Code Civ. Proc. Provision is made for the proof of a will, where one of the witnesses is unable to testify, by reason of death or otherwise, by proving the handwriting of the absent witness and the handwriting of the testator. Section 2620, Code of Civil Procedure, provides that — "if a subscribing witness, whose testimony is required, is dead — 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 will be sufficient to prove the will upon trial of the action." There is no proof of the handwriting of the deceased. Such proof must be given; it is a positive requirement of the statute where a will is sought to be proved by the testimony of one of the subscribing witnesses. Proof of this character can only be furnished by some person possessing knowledge of the general form and characteristics of the writing of the deceased person which enables the witness to identify it and distinguish it from the signature and writing of another. The only evidence produced, is the testimony of one of the subscribing witnesses and it falls far short of this requirement.
Indeed it is hard to see how any evidence could be furnished which would enable one to distinguish a cross mark from a similar mark made by another person. It is difficult to see how any will under the provisions of the statute above quoted could be admitted to probate, where the deceased signed by a cross mark and only one of the subscribing witnesses is produced and that witness did not see the mark made. The difficulty would undoubtedly be obviated if other evidence could be produced, showing that the deceased actually made this mark. The provision of the statute, though seemingly working injustice in this case, is a wise one and must be enforced.
Probate refused.