Estate of Wright.

judgment affirmed. The defendant then proposed to pay to plaintiff's attorney the face of the judgment and interest, but declined to pay sheriff's fees, whose bill he demanded should be taxed.

On the argument it was contended on the part of the defendant that the sheriff had not collected anything, and, therefore, was not entitled to any fees. For the sheriff it was urged that he had done all that the process required, and the payment to the plaintiff's attorney was virtually a settlement under section 3307 of the Code.

Edward J. Cramer, for sheriff.

William F. McRae, opposed.

NEHRBAS, J.-The deputy swears that a levy was, in fact, made and a person kept in charge to preserve the property. The payment of the judgment was a settlement within the meaning of section 3307, subdivision 7 of the Code, entitling the sheriff to poundage and an allowance. The sheriff's expenses for a keeper was thirty dollars, which amount will be allowed him as a compensation. The bill is taxed at seventeen dollars and fourteen cents.

N. Y. SURROGATE'S COURT.

In the Estate of SARAH A. WRIGHT, deceased.

Code of Civil Procedure, scction 2620-Will-Subscribing witnesses-Proof of handwriting sufficient to establish the execution of a will.

Where a will contained a full attestation clause, the mere non-recollection of a witness, in respect to the circumstances of its execution, will not justify a finding that the statutory requirements have been disregarded. May, 1884.

Estate of Wright.

ROLLINS, S-An instrument purporting to be this decedent's last will and testament has been propounded for probate. It is dated May 20, 1864, and purports to be signed by Thomas J. Hall and Charles B. Coffin as subscribing witnesses. Mr. Hall, formerly one of the firm of William Hall & Sons, music publishers in this city, is now dead. His signature has been satisfactorily proved, and so also has that of the decedent herself. Mr, Coffin, the other subscribing witness, is now engaged in the produce business at No. 65 Pearl street. While he fully identifies his own signature, he has no recollection whatever of the circumstances under which it was written; but he is positive that he would never have put it upon this disputed paper unless he had known that every allegation in its attestation clause was true. That attestation clause is in the words following:

"The above instrument was subscribed by the said Sarah A. Wright, in our presence, and acknowledged by her to each of us, and she at the same time declared the above instrument so subscribed to be her last will and testament, and we, at her request, have signed our names as witnesses thereto.

"NEW YORK, May 20, 1864.

"C. B. COFFIN.

“THOMAS J. HALL.”

Section 2620 of the Code of Civil Procedure provides that "if all the subscribing witnesses to a written will are dead, or if a subscribing witness has forgotten the occur

rence,

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*

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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 would be sufficient to prove the will upon the trial of an action." This provision does not materially differ from that contained in chapter 460 of the Laws of 1837. The latter has often been under consideration by the courts of this state. In Butler agt. Benson (1 Barb., 526 [1847]), it was decided at the Washington special term of the supreme court, that

Estate of Wright.

"when the witnesses are dead, or from lapse of time do not remember the circumstances attending the attestation, the law, after the diligent production of all the evidence then. existing, if there are no circumstances of suspicion, presumes the instrument properly executed, particularly where the attestation clause is full."

In Nelson agt. McGaffert (31 Barb. Ch., 158 [1848]) the same doctrine was maintained by the chancellor.

It was again asserted by the surrogate of this county in Peebles agt. Case (2 Bradf., 226, 1852), and by the Madison general term of the supreme court in Cheeney agt. Arnold (18 Barb., 434 [1854]).

The facts in the case of Orser agt. Orser (24 N. Y., 51 [1861]) were almost precisely like those with which we have here to deal. The attestation clause was full. There were two subscribing witnesses, one of whom had died before trial. His signature was proved, and, as in the case at bar, the body of the instrument was shown to be in his handwriting. The other witness was examined, but could not remember that the decedent declared the instrument there in question to be his will, or that he acknowledged his signature thereto. SELDEN, J., pronouncing the opinion of the court, said: "A will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate, although none of the subscribing witnesses are able to swear from recollection that the formalities required by the statute were complied with, and even although some of them should swear positively that they were not, if the other evidence warrants the inference that they were."

The court held that, upon the facts there appearing, the jury were warranted in finding the due execution of the will. Moore agt. Griswold (1 Redf., 388 [1863]) sustained the proposition that, in the absence of suspicious circumstances or contradictory evidence, proof of the signatures of the testator and of the deceased, subscribing witnesses, were sufficient to establish the execution of a will.

Estate of Wright.

In Rider agt. Legg (51 Barb., 260 [1868]) at the Rensselaer special term, a will was established upon proof of the signatures of the testator and of two subscribing witnesses, both of whom were dead. There was a full attestation clause and an absence of circumstances calculated to arouse suspicion. The court cited, with approval, some of the cases above named, as well as Brinkerhoff agt. Remsen (8 Paige, 491 [1840]); Chaffe agt. Baptist Miss. Con. (10 Paige, 85 [1843]); Everitt agt. Everitt (41 Barb., 385 [1864]); and Lawrence agt. Norton (45 Barb., 448 [1866]).

In the Matter of Kellum (52 N. Y., 517 [1873]), chief justice CHURCH, pronouncing the opinion of the court, declared that whenever the attestation clause is full, and the signatures are satisfactorily proved and the circumstances are corroborative of due execution, and there is no evidence disproving a compliance (with the requirements of the statute), it may be justly presumed that all those requirements have been observed, although the witnesses are unable to recollect the execution or what took place at the time."

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In Brown agt. Clark (77 N. Y., 369 [1879]), in Rugg agt. Rugg (83 N. Y., 592 [1881]), and In Matter of Pepoon (91 N. Y., 255 [1883]), the court of appeals reasserted the proposition that where a will contained a full attestation clause, the mere non-recollection of a witness in respect to the circumstances of its execution would not justify a finding that the statutory requirements had been disregarded.

Upon the authorities which I have cited, and in the absence of any circumstances throwing doubt or suspicion upon the genuineness of the instrument here propounded, I hold that that instrument is entitled to probate. A decree may be entered accordingly.

Matter of United States.

COURT OF APPEALS.

In the Matter of the Petition of the UNITED STATES for the appointment of commissioners, &c.

The Harlem widening - Constitutional law — Constitutionality of chapter 147 of the Laws of 1876 in relation to the improvement of the Harlem river and Spuyten Duyvil creek, and the various acts amendatory thereof, upheld. On an appeal from an order made by the supreme court denying a motion to vacate certain orders by which the commissioners of estimate and assessment were appointed to carry into effect an act entitled "An act granting to the United States the right to acquire the right of way necessary for the improvement of the Harlem river and Spuyten Duyvil creek, and for the construction of another channel from the North river to the East river, through the Harlem kills, and ceding jurisdiction over the same" (Laws of 1876, chap. 147, as amended by chap. 345 of the Laws of 1879). The orders were made in the course of proceedings instituted by the United States through petition dated October 8, 1879, addressed to the supreme court of this state, setting forth a desire to acquire certain described lands as necessary for the construction and use of the improvement, and other allegations required by the provisions of the statute relating thereto:

Held, first, that while the federal government, as an independent sovereignty, has the power of condemning lands within the states for its own public use, it may lay aside its sovereignty and as a petitioner enter the state courts and there accomplish the same end through proceedings authorized by the state legislature. The state may delegate its power to the United States where the use is public and the convenience is shared by its own citizens. Lands may be taken for the use of the people of the United States, and it cannot prejudice the proceedings for that purpose that they are instituted by consent of the legislature of the state in which they lie, and in a way prescribed by it, made to conform to the regulations of its courts.

Second. The use for which the land is sought is a public one. Third. The fundamental doctrine is that private property cannot be taken for public purposes without just compensation. But this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is provided whereby the owner of such property may compel payment of his damages. This means reasonable legal certainty. The acts under which these proceedings are justified make such provisions.

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