In re O'Boyle

Appellate Division of the Supreme Court of New York

In re O'Boyle

256 A.D. 933, 9 N.Y.S.2d 793, 1939 N.Y. App. Div. LEXIS 5526

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 1939

StatusPublished

This text of 256 A.D. 933 (In re O'Boyle) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re O'Boyle, 256 A.D. 933, 9 N.Y.S.2d 793, 1939 N.Y. App. Div. LEXIS 5526 (N.Y. Ct. App. 1939).

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Opinion

Decree of Surrogate’s Court of Kings county admitting to probate the will of the testator, reversed on the law and the facts, with costs to appellants, and matter remitted to the Surrogate’s Court with the direction that a decree be entered denying admission to probate of said will, with costs to contestants, all costs payable out of the estate. The determination of the surrogate was not only against the weight of the evidence but contrary to it. There was here no narrow issue of fact. The testimony in support of execution of the will offended credulity. Under section 309 of the [934]*934Surrogate’s Court Act this court may and does decide the question of fact. Appeal from decision dismissed. Lazansky. P- J., Davis, Johnston and Close, JJ., concur; Carswell, J., dissents and votes to affirm, with the following memorandum: This court may not substitute its views on credibility for that of the surrogate, where the issue of fact resting on oral proof is within so narrow a compass. (Boyd v. Boyd, 252 N. Y. 422, 429.) There is no proof of any vitiating element operating at the time decedent expressed his testamentary desires in holographic form. It may not be said that the version which the surrogate accepted respecting the execution and publication of the will was incredible as a matter of law; that being so, which version should be accredited was peculiarly for the trial court.

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Decree of Surrogate’s Court of Kings county admitting to probate the will of the testator, reversed on the law and the facts, with costs to appellants, and matter remitted to the Surrogate’s Court with the direction that a decree be entered denying admission to probate of said will, with costs to contestants, all costs payable out of the estate. The determination of the surrogate was not only against the weight of the evidence but contrary to it. There was here no narrow issue of fact. The testimony in support of execution of the will offended credulity. Under section 309 of the [934]*934Surrogate’s Court Act this court may and does decide the question of fact. Appeal from decision dismissed. Lazansky. P- J., Davis, Johnston and Close, JJ., concur; Carswell, J., dissents and votes to affirm, with the following memorandum: This court may not substitute its views on credibility for that of the surrogate, where the issue of fact resting on oral proof is within so narrow a compass. (Boyd v. Boyd, 252 N. Y. 422, 429.) There is no proof of any vitiating element operating at the time decedent expressed his testamentary desires in holographic form. It may not be said that the version which the surrogate accepted respecting the execution and publication of the will was incredible as a matter of law; that being so, which version should be accredited was peculiarly for the trial court.

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Bluebook (online)

256 A.D. 933, 9 N.Y.S.2d 793, 1939 N.Y. App. Div. LEXIS 5526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oboyle-nyappdiv-1939.

Opinion

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