In re the Probate of the Lawrence's Will. , 1 Tuck. Surr. 243 ( 1870 )

The Surrogate.

Abram E. Lawrence died in April, 1863, and the paper propounded as his will in this proceeding is dated December 16th, 1839. His estate is .estimated at $500,000; the paper propounded divides the bulk of his estate into seven parts, and bequeaths and devises one-seventh each, to his brothers Jonathan, Bichard M., John L. and William T. Lawrence; his sister, Margaret Lawrence; his sister-in-law Mary, widow of his brother Joseph Lawrence; and the children of his brother ■Samuel Lawrence. All these brothers and sisters have died since the date of this paper, and the only person nominated in it as an executor, who survives, is Andrew ■ Lawrence, a nephew,-who offers it for probate.

The will has the usual testatum clause, and is signed by three witnesses, J. D. Outcalt, J. Van Benschoten, and William H- -Duell; two. of these-are since dead, and evidence has been- taken to prove their handwriting. The only- surviving witness is Mr. Van Benschoten, who testifies thus as to his signature: ; .

“ I should think I should call it mineit is my handwriting ; I have no recollection whatever, of signing this will, or having it brought there, or of; anything in relation to it!” - ’

' The probate of the will is contested by two minors, claiming to be the grandchildren of the decedent; their relationship is -denied by-the proponents. Testimony has been taken as to-the reputation of marriage and cohabitation of the decedent and the grandmother of these children.

- I find, as conclusions of fact: ■' 1 ;

. 1st. That the paper propounded as a' will is not prevén to have been executed by the decedent, in the manner, and with the formalities -required by the" statute; that there is no evidence, that the signature of the decedent was made in the presence of any of the attesting witnesses, or acknowledged. to .any .of them;. no evidence of the" publication of this paper-.as his will; and--no" evidence of the rogation of the witnesses, by the decedent. ’' - 2dly. That the. evidence must he held to" sustain the existence of the; marriage relation between the decedent and the grandmother- of the infant contestants,- and that-they are the heirs-at-law apd next-of kin of "the deceased.

Probate, is therefore-denied, and‘"intestacy decreed; letters of administration will issue to the guardian of the infants. - ■ - ’ ‘ -

[Appeal was taken from the Surrogate’s decree, and it was reversed by the Supreme Court, without a- trial by-jury, and an order entered . directing the" Surrogate tb 1 admit the will to probate,] . ' 1 ' ‘ '