WILL.

1. The proponents of a paper which is claimed to be this decedent's will lately finished the presentation of their proofs. The contestant, through her counsel, thereupon filed an affidavit alleging facts which tend to show that the testimony of certain persons in such affidavit named "may be material" to the issues of this proceeding. The contestant also caused to be filed and to be served upon the proponents a notice to the effect that, before proceeding to introduce proofs in opposition to probate, she required the examination of the persons in such affidavit named:

Held, first, that the duty of producing such witnesses falls upon parties proponent, not because the statute so declares, but because, as it fails to impose that duty upon parties contestant, they can rest securely upon the fact that, until such witnesses have been produced and examined, the will cannot be admitted to probate.

Second. The course of the examination of witnesses brought into court by proponents at the instance of contestants, is a matter purely in the discretion of the surrogate. Such witnesses must be examined, because the law demands their examination, whenever the proper notice has been filed and the surrogate has found them to be material. They are not to be charged, so to speak, to the account of either party. They are to be examined by the surrogate. The surrogate can require counsel to assist him in the examination. Neither party can demand, as of right, the opportunity of first examining the witness who has been produced in pursuance of the notice, and neither party can demand, as of right, that his opponent shall begin such examination. The surrogate should see to it that both parties are afforded a fair opportunity for full and searching investigations. In

most instances, where witnesses shall be thus brought into court at the request of contestants, it will be the most natural course to call upon the contestants themselves to pursue the inquiry in the first instance, because, presumably, they will be better advised than their adversaries as to the precise matters which they wish and expect to prove; but in such cases a direction to the contestants to begin the inquiry, will not of itself involve any limitation upon their right of making that inquiry as searching and thorough as they would have been permitted to make it if the witness had been voluntarily produced by the opposite party and had testified in its behalf:

Third. As to when witnesses produced in accordance with section 2618 of the Code of Civil Procedure are to be examined, it is a mere question of the order of proof, and is entirely within the discretion of the surrogate. In the exercise of such discretion he would ordinarily permit the party applying for the examination to decide for himself when that examination should be had. (Matter of Hoyt, ante, 57.)

2. The testatrix, who left no descendants, by her will gave her husband certain property and onehalf of the remainder of her estate, giving the other half to a brother and sister in equal shares:

Held, that the share of the brother, who died before the testatrix, belongs to the husband and not to the brother's heirs-at-law. (Robins agt. McClure, ante, 83.)

3. Where a will contained a full attestation clause, the mere nonrecollection of a witness, in respect to the circumstances of its execution, will not justify a finding that the statutory requirements have been disregarded. (Estate of Wright, ante, 117.)

4. Where the evidence showed that

deceased signed the paper propounded and acknowledged the signature to be his, declared the instrument to be his last will and testament, and requested the witness G. to become a witness thereto; that subsequently he requested the witness F. to sign

as a witness," but, according to his testimony, without either acknowledging the signature or declaring it to be his will; the testator is shown to be familiar with the requisite formalities attending the execution of a will; the attestation clause being faulty in that it omits to state that the witness signed at the request of the testator:

Hell, that it is not necessary for the subscribing witnesses to a will to subscribe as witnesses in each other's presence.

The testimony of a subscribing witness who signed the will in the presence of the testator alone, is not conclusive on the question of due execution, when it appears