Down v. McGourkey

New York Supreme Court

Down v. McGourkey

22 N.Y. Sup. Ct. 444

DecidedOctober 15, 1878

StatusPublished

This text of 22 N.Y. Sup. Ct. 444 (Down v. McGourkey) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Down v. McGourkey, 22 N.Y. Sup. Ct. 444 (N.Y. Super. Ct. 1878).

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Opinion

Per Curiam :

The will was properly admitted to probate. The evidence established to the satisfaction of the. surrogate, and to our own, that the testator was competent to make the will, and that the same was not made under undue influence. The case presents simply questions of fact, and on the questions considered by him, we concur with the surrogate in his opinion. The decree, therefore, appealed from, admitting the will to probate, should be affirmed.

The surrogate allowed to the proctor for the contestants the sum of 11,500 in lieu of costs. The power of the surrogate to make allowances of this kind is limited by the Code (§ 309), and cannot in any case exceed in the aggregate, to any or ail parties, the sum of $2,000. The aggregate of allowances in this case did exceed that sum; but $500 of the amount was awarded to the stenographer of the court for his services, and is, therefore, not ■ obnoxious to the objection that the allowance was in excess of power. It was a disbursement in the case, and not in the nature of costs to the successful or defeated party. The question of the propriety of the allowance rests altogether in the discretion of this court, when brought before us by appeal, as was held by the Court of Appeals in Noyes v. The Children's Aid Society (70 N. Y., 481).

We have examined this case sufficiently to see that the contest as to the validity of this will was a reasonable one. The property was disposed of in such a manner as to lead, perhaps, to just suspicions that the testator had been affected by undue influence, or by an impairment of mental power by reason of his personal habits; and, under such circumstances, we do not feel called upon to interfere with the exercise of the discretion of the surrogate in making the allowance.

The order should be affirmed, without costs to either party.

■ Present — Davis, P. J., Brady and Ingalls, JJ.

Decree affirmed, without costs. Order affirmed, without costs.

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Per Curiam :

The will was properly admitted to probate. The evidence established to the satisfaction of the. surrogate, and to our own, that the testator was competent to make the will, and that the same was not made under undue influence. The case presents simply questions of fact, and on the questions considered by him, we concur with the surrogate in his opinion. The decree, therefore, appealed from, admitting the will to probate, should be affirmed.

The surrogate allowed to the proctor for the contestants the sum of 11,500 in lieu of costs. The power of the surrogate to make allowances of this kind is limited by the Code (§ 309), and cannot in any case exceed in the aggregate, to any or ail parties, the sum of $2,000. The aggregate of allowances in this case did exceed that sum; but $500 of the amount was awarded to the stenographer of the court for his services, and is, therefore, not ■ obnoxious to the objection that the allowance was in excess of power. It was a disbursement in the case, and not in the nature of costs to the successful or defeated party. The question of the propriety of the allowance rests altogether in the discretion of this court, when brought before us by appeal, as was held by the Court of Appeals in Noyes v. The Children's Aid Society (70 N. Y., 481).

We have examined this case sufficiently to see that the contest as to the validity of this will was a reasonable one. The property was disposed of in such a manner as to lead, perhaps, to just suspicions that the testator had been affected by undue influence, or by an impairment of mental power by reason of his personal habits; and, under such circumstances, we do not feel called upon to interfere with the exercise of the discretion of the surrogate in making the allowance.

The order should be affirmed, without costs to either party.

■ Present — Davis, P. J., Brady and Ingalls, JJ.

Decree affirmed, without costs. Order affirmed, without costs.

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22 N.Y. Sup. Ct. 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/down-v-mcgourkey-nysupct-1878.

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