In re Probate of the Will of Fogarty

Appellate Division of the Supreme Court of New York

In re Probate of the Will of Fogarty

275 A.D.2d 1057

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

DecidedOctober 24, 1949

StatusPublished

This text of 275 A.D.2d 1057 (In re Probate of the Will of Fogarty) 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 Probate of the Will of Fogarty, 275 A.D.2d 1057 (N.Y. Ct. App. 1949).

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Opinion

Although the verdict was properly directed upon the issues as to which appellants have the burden of proof, other issues, upon which the burden was imposed upon respondent Brennan, depended for their determination upon the testimony of the subscribing witnesses to the will. The testimony of these witnesses was positive and not directly contradicted. They were, nevertheless, interested in the probate of the will to such extent as to require their credibility to be submitted to the jury. (Matter of Kindberg, 207 N. Y. 220; Van Gaasbeek v. Staples, 85 App. Div. 271, affd. 177 N. Y. 524; Matter of Perkett, 192 App. Div. 846.) Although the direction of a verdict was erroneous only as to such issues, all of the issues must be retried. (Matter of Gallo, 252 App. Div. 861; Matter of Lawler, 257 App. Div. 1098.) Nolan, P. J., Carswell, Adel, Sneed and MacCrate, JJ., concur.

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Although the verdict was properly directed upon the issues as to which appellants have the burden of proof, other issues, upon which the burden was imposed upon respondent Brennan, depended for their determination upon the testimony of the subscribing witnesses to the will. The testimony of these witnesses was positive and not directly contradicted. They were, nevertheless, interested in the probate of the will to such extent as to require their credibility to be submitted to the jury. (Matter of Kindberg, 207 N. Y. 220; Van Gaasbeek v. Staples, 85 App. Div. 271, affd. 177 N. Y. 524; Matter of Perkett, 192 App. Div. 846.) Although the direction of a verdict was erroneous only as to such issues, all of the issues must be retried. (Matter of Gallo, 252 App. Div. 861; Matter of Lawler, 257 App. Div. 1098.) Nolan, P. J., Carswell, Adel, Sneed and MacCrate, JJ., concur.

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275 A.D.2d 1057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-probate-of-the-will-of-fogarty-nyappdiv-1949.

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