In Re the Accounting of Marks

When first offered, this will could not have been probated without the production and examination of the two subscribing witnesses as both were at that time within the State and competent and able to testify. (Surr. Ct. Act, § 141.) The legacy to each witness was, therefore, void. (Dec. Est. Law, § 27; Caw v. Robertson, 5 N. Y. 125.) The legacy to the subscribing witness Weldon could not be validated by her own act of leaving the State of New York until after the will was probated, notwithstanding that the will was eventually probated without her testimony in accordance with the provisions of…