Volume 65 — Sickels

<p>A will prompted by gratitude cannot, in the case of a perfectly competent testator, and in the absence of evidence of fraud, imposition, constraint or coercion, be said to have been obtained by undue influence, simply from the fact that all of the testator’s estate is given to a stranger in blood.</p> <p>'The fact that the relations of the testator with the object of his bounty, a woman, are meretricious, does not invalidate the will.</p> <p>It seems that where such relationship is shown to have existed, all the circumstances attending the execution of the will should be carefully scrutinized.</p> <p>Where the probate of a willis, in good faith, but unsuccessfully, contested, it is within the discretion of the surrogate to allow costs to the contestant (Code of Civil Pro. § 2558), and his refusal so to do is not error.</p>

<p>Subscribing witnesses to a will are required for the. purpose of attesting and identifying the signature of the testator; for this purpose it is essential to the due publication of a will either that they should see the testator subscribe his name, or that, with the signature visible to him and to them, he should acknowledge it to be his.</p> <p>Where, therefore, it appeared that, at the time of the alleged publication of an instrument presented for probate as a last will, the decedent stated to the witnesses that he had sent for them to sign his last will; that he then presented the instrument, stating it was his will and was all ready awaiting their signatures, but he handed it to the witnesses so folded that they could not, and they did not see his signature or any part thereof except the attestation clause. Held, that the will was not properly executed ; and that the surrogate properly refused to admit it to probate.</p>