Opinion
10-05-1954
In the Matter of the Probate of The Will of Eralso E. Walton, Deceased.
Regan & Barret for John M. Walton, proponent. Godfrey von Hofe for Truth Seeker, Inc., and another, contestants. FRANKENTHALER, S. This contested probate proceeding was tried by the court without a jury. The court is satisfied that the instrument bearing the date of January 16, 1954, was executed in accordance with the requirements of section 21 of the Decedent Estate Law, and that the competency of decedent to make such instrument and his freedom from restraint have been established. Decedent's request to each of the two subscribing witnesses who testified, to sign the instrument which he declared to be his will and upon which his signature was clearly visible constituted sufficient acknowledgment within the meaning of subdivision 2 of section 21 (Baskin v. Baskin, 36 N.Y. 416; Matter of Dodds, 268 App. Div. 811, affd. 294 N.Y. 706; Matter of Hunt, 110 N.Y. 278; 1 Davids on New York Law of Wills, § 300). Whether or not probate should be denied to this instrument as a will because it names no legatee or executor, the court holds that it is effective nonetheless, under section 34 of the Decedent Estate Law, to revoke any prior will or codicil (Matter of Stege, 161 Misc. 667; Matter of Rothstein, 112 N. Y. S. 2d 716; Matter of Spellman, N. Y. L. J., Nov. 10, 1947, p. 1248, col. 7). Submit decree on notice accordingly.