CONCURRING OPINION. I concur in the result reached, but not on the grounds stated in the prevailing opinion.
The petition to probate the will of Margaret Klein was filed in the estate of Margaret Klein, deceased, which was pending in the Marion Probate Court, and likewise the petition to probate the will of Michael J. Klein was filed in the estate of Michael J. Klein, deceased, also pending in such court. Proof of the death of each of said decedents was necessary before letters of administration were issued and said estates opened, and I believe it was unnecessary to again make proof of death, or to again formally prove that Michael and Margaret Klein left assets in Marion County and that the proponent as beneficiary under the will was interested in the estate specified therein.
An interesting and important question of law was properly presented here: Whether under our statute due execution of a will is proved by proof of the signatures of the testator and the attesting witnesses, where one attesting witness to the will is dead and another is produced but has a lapse of memory and fails to remember anything concerning its execution, although he identifies his signature, and where there is neither a full certificate of attestation to the will by which its execution could have been shown, nor any other evidence of its due execution. This question, which I think has been *Page 619 correctly answered in the concurring opinion of Gemmill, J., should be decided by the court and obviate the necessity of a subsequent appeal and further delay in the settlement of these estates.