In re Proving the Last Will & Testament of McCullough

Appellate Division of the Supreme Court of New York

In re Proving the Last Will & Testament of McCullough

226 A.D. 680

Appellate Division of the Supreme Court of the State of New York·Decided March 15, 1929·Published

Opinion

Decree of the Surrogate’s Court of Orange county denying probate of the will of Mary G. McCullough and order denying motion for a new trial reversed upon the law and new trial ordered, costs to appellants to abide the event, payable out of the estate, and proceeding remitted to the Surrogate’s Court of Orange county for further action in accordance with this decision. The trial court erred in permitting Dr. Osterhout to testify at folios 719 and 773 that, in his opinion, the testatrix was incompetent to make a will at the time of its execution and prior thereto. (Wyse v. Wyse, 155 N. Y. 367; Matter of Arnold, 14 Hun, 525; Matter of Mason, 60 id. 46, 54; Matter of Schmidt, 139 N. Y. Supp. 464, 473; 3 Chamberlayne Ev. [Ed. 1912] § 2429, p. 3280; Runyan v. Price, 15 Ohio St. 1, 14; Walker v. Walker’s Executor, 34 Ala. 469, 473.) Young, Hagarty, Seeger, Carswell and Seudder, JJ., concur.

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Decree of the Surrogate’s Court of Orange county denying probate of the will of Mary G. McCullough and order denying motion for a new trial reversed upon the law and new trial ordered, costs to appellants to abide the event, payable out of the estate, and proceeding remitted to the Surrogate’s Court of Orange county for further action in accordance with this decision. The trial court erred in permitting Dr. Osterhout to testify at folios 719 and 773 that, in his opinion, the testatrix was incompetent to make a will at the time of its execution and prior thereto. (Wyse v. Wyse, 155 N. Y. 367; Matter of Arnold, 14 Hun, 525; Matter of Mason, 60 id. 46, 54; Matter of Schmidt, 139 N. Y. Supp. 464, 473; 3 Chamberlayne Ev. [Ed. 1912] § 2429, p. 3280; Runyan v. Price, 15 Ohio St. 1, 14; Walker v. Walker’s Executor, 34 Ala. 469, 473.) Young, Hagarty, Seeger, Carswell and Seudder, JJ., concur.

In re Proving the Last Will & Testament of McCullough, 226 A.D. 680 (N.Y. Ct. App. 1929).

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