In re Proving the Last Will & Testament of Matheson

Appellate Division of the Supreme Court of New York

In re Proving the Last Will & Testament of Matheson

257 A.D. 164, 12 N.Y.S.2d 629, 1939 N.Y. App. Div. LEXIS 7698

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

DecidedMay 23, 1939

StatusPublished

This text of 257 A.D. 164 (In re Proving the Last Will & Testament of Matheson) 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.

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In re Proving the Last Will & Testament of Matheson, 257 A.D. 164, 12 N.Y.S.2d 629, 1939 N.Y. App. Div. LEXIS 7698 (N.Y. Ct. App. 1939).

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Opinions

Decree of the Surrogate’s Court of Richmond county admitting to probate a will dated January 18, 1937, affirmed, with costs to all parties filing briefs, payable out of the estate. The proof presented a question of fact on the framed issues. The admission of the testimony of Thomas Kelby was proper. The Civil Practice Act (§ 354) permits an attorney or his employees to testify as to the preparation of a will whether or not the attorney is a subscribing witness thereto, thus liberalizing the rule relating to confidential communications. The decedent consulted Mr. Kelby professionally with respect to his desire to draw a will leaving the bulk of his property to the respondent and his wife. The decedent was advised by Mr. Kelby that a printed form of will might be used in an emergency when a lawyer could not be present. Three days after consultation concerning his proposed will, and in the absence of Mr. Kelby, the decedent executed the will in question on a so-called form, leaving all his property to the respondent and his wife. The circumstances enabled the surrogate, the trier of the facts, to determine as a question of fact that the consultation [165]*165with Mr. Kelby was an incident to and in preparation of the actual making and execution of the will offered for probate.

Hagarty, Johnston and Taylor., JJ., concur; Lazansky, P. J., dissents and votes to reverse and order a new trial, with opinion; Close, J., concurs with Lazansky, P. J.

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Decree of the Surrogate’s Court of Richmond county admitting to probate a will dated January 18, 1937, affirmed, with costs to all parties filing briefs, payable out of the estate. The proof presented a question of fact on the framed issues. The admission of the testimony of Thomas Kelby was proper. The Civil Practice Act (§ 354) permits an attorney or his employees to testify as to the preparation of a will whether or not the attorney is a subscribing witness thereto, thus liberalizing the rule relating to confidential communications. The decedent consulted Mr. Kelby professionally with respect to his desire to draw a will leaving the bulk of his property to the respondent and his wife. The decedent was advised by Mr. Kelby that a printed form of will might be used in an emergency when a lawyer could not be present. Three days after consultation concerning his proposed will, and in the absence of Mr. Kelby, the decedent executed the will in question on a so-called form, leaving all his property to the respondent and his wife. The circumstances enabled the surrogate, the trier of the facts, to determine as a question of fact that the consultation [165]*165with Mr. Kelby was an incident to and in preparation of the actual making and execution of the will offered for probate.

Hagarty, Johnston and Taylor., JJ., concur; Lazansky, P. J., dissents and votes to reverse and order a new trial, with opinion; Close, J., concurs with Lazansky, P. J.

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257 A.D. 164, 12 N.Y.S.2d 629, 1939 N.Y. App. Div. LEXIS 7698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proving-the-last-will-testament-of-matheson-nyappdiv-1939.