CONCURRING OPINION. This is an appeal from a judgment denying the probate of an instrument of writing, bearing date of August 17, 1917, purporting to be the joint last will and testament of Margaret Klein, alias Maggie Klein and Michael J. Klein, both deceased. The proponent of the will was Mary A. Copeland, and she is the appellant herein.
On appeal, the administrator of the estate of Margaret Klein, deceased, and the administratrix of the estate of Michael J. Klein, deceased, were made appellees. The administratrix of the estate of Michael J. Klein, deceased, filed a motion to dismiss the appeal. The appellant filed an answer to this motion, stating that she had not been given proper notice of the motion to dismiss. It appears from the proof of service of notice that said appellee did not give notice of the motion to dismiss as required by Rule 15 of this court. Therefore, the motion to dismiss the appeal should be overruled. The appellees were not parties in the probate court, and are not proper parties here. This court on its own motion should dismiss the appeal as to the appellees.
This was an ex parte proceeding in which the court heard all the oral testimony offered by the proponent of the will. M.B. Voyles, a witness, called in behalf of the proponent of the will, testified that he lived in Indianapolis and was a watchman for L.S. Ayres and Co.; that he knew Margaret Klein and Michael Klein during their lifetime, came in contact with them frequently and *Page 615 lived with them at one time. In his opinion, they were mentally capable to attend to their business. He was handed "Exhibit A," the alleged will, and asked to look at it and to look at the name M.B. Voyles signed as an attesting witness, and state whether or not that was his signature. He said it was his signature and in his handwriting. He was then asked this question: "I will ask you to state whether you placed your signature as an attesting witness, on that `Exhibit A' at the request of the testators Margaret Klein and Michael Klein, deceased." He answered: "I cannot recall anything regarding that will, or the circumstances surrounding same, only that it is my signature and in my own hand write." The next question was: "Do you mean to tell the Court that you then have a lapse of memory, and cannot recall any of the circumstances, other than this is your signature and in your own hand write?" The answer was: "Yes, sir, I do. I cannot recall seven years back."
By other witnesses, it was shown that Benjamin Franklin, the other attesting witness, was dead, and that the signature of Benjamin Franklin was in his handwriting; that the signatures of Michael J. Klein and Margaret Klein were in their handwriting; that Margaret Klein was known as Maggie Klein, and that Michael J. Klein and Margaret Klein were mentally capable to transact their business and did transact same.
The court found that the evidence was not sufficient to prove the execution of said instrument of writing. After it was adjudged that the probate of the alleged will be denied, the proponent filed a motion for a new trial. The first cause therein stated was not a statutory cause. The other causes were that the decision of the court was contrary to law and the decision of the court was not sustained by sufficient evidence. Overruling the motion for a new trial is assigned as error.
Sections 3452, 3469 and 3470 Burns 1926 are as follow: *Page 616 § 3452. "No will, except a noncupative will, shall affect any estate unless it be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses," etc. § 3469. "Before a written will shall be admitted to probate . . . such will shall be proved by one or more of the subscribing witnesses, or, if they be dead, out of the state, or have become incompetent from any cause since attesting such will, then by proof of the hand-writing of the testator or of the subscribing witnesses thereto." § 3470. "If none of the subscribing witnesses to a will be produced, their subsequent incompetency, death or absence from the state shall be proved, before evidence of the handwriting of the testator or of any of the subscribing witnesses shall be received; and such evidence shall be taken in the same manner as on a trial at law."
Before a will can be probated, proof must be made of its due execution, and the burden of proving such fact rests upon those proposing the will for probate. 1 Henry, Indiana Probate Law (3d ed.) § 487; Thompson, Wills § 498. In Thompson, Wills § 498, it is said: "A prima facie case is made when it is shown that all requirements of law have been observed in the execution of the will, and unless such prima facie case is made the court should refuse probate even where probate is not contested." A full attestation clause reciting compliance with all formalities of execution and signed by the witnesses is prima facie evidence of the validity of the will although the witness' memory is faulty. 40 Cyc 1304.
The execution of a will in this state may be proved by one competent attesting witness. It was said by the court of appeals of an adjoining state that it is the general rule that proof of a will by other than the testimony of subscribing witnesses is not permissible, where such witness exists and is known to reside within the jurisdiction *Page 617 of the court. By §§ 3469 and 3470 Burns 1926, herein quoted, it appears that it may have been the intention of the General Assembly that a will could be admitted to probate by proof of the handwriting of the testator or of the subscribing witnesses thereto only when the witnesses to the will were dead or out of the state, or when they had become incompetent. However, it has been held in several jurisdictions that where the testimony of the subscribing witnesses is insufficient to prove the formal execution of the will, other evidence is admissible to supply the deficiency. 40 Cyc 1303, 1304; Thompson, Wills § 498. In 28 R.C.L. 372, it is said: "It is a fundamental rule that the proof of the execution of a will does not depend upon the memory of the subscribing witnesses. . . . Where the witnesses to a will when called as witnesses cannot remember the facts respecting the execution of the will, it may nevertheless be supported by other evidence, including the testimony of those who were not subscribing witnesses." This rule was adopted by the probate court in this proceeding, as the proponent offered additional oral testimony which was received by the court when the attesting witness failed to prove the execution of the alleged will.
Failure to recollect the performance of certain formalities seven years before does not necessarily mean that such formalities have been performed and forgotten. In the instant case, it does not appear that there was a full certificate of attestation to the alleged will, by which its execution could have been shown. It cannot be held herein where an attesting witness to an alleged will was used as a witness to probate same and failed to make any proof as to its execution, that the execution could then be proved by proof only of the signatures of the testators and the subscribing witnesses, one of whom was dead. There was no other evidence as to its execution. The *Page 618 finding of the court herein that the evidence was not sufficient to prove the execution of the instrument in writing was not erroneous. And it is not shown by the appellant that the finding of the court was contrary to law. The court did not err in overruling the motion for a new trial.
The judgment is affirmed.