In re Proving the Last Will & Testament of Potter

248 A.D. 808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

Decree so far as appealed from and order reversed on the law and facts, with costs, and matter remitted to Surrogate’s Court with directions to admit codicil to probate. Memorandum: In support of the probate of the codicil in question the proponents offered testimony by the two attesting witnesses — one of whom was an attorney who had prepared this instrument and had previously acted as counsel for the testator, the attending physician who had treated the testator professionally several times a month for a period of years, the testator’s banker, his housekeeper and several business friends. The contestant did not offer the testimony of a physician or an expert in mental diseases to prove that the testator was irrational in 1932 when the codicil was executed. Her ease rests upon evidence by lay witnesses which fails to establish the testamentary incapacity of the decedent. A careful review of the entire evidence leads us to conclude that the finding of the jury that on Februaiy 19, 1932, the date when the codicil in question was executed, the testator was not of sound and disposing mind and memory, was contrary to and against the weight of evidence. All concur. (The decree denies probate of a codicil. The order denies motion for a new trial on the minutes.) Present — Sears, P. J., Taylor, Edgeomb, Crosby and Lewis, JJ.