In re Smith to Prove the Last Will & Testament of Lowe

Appellate Division of the Supreme Court of New York

In re Smith to Prove the Last Will & Testament of Lowe

249 A.D. 654, 291 N.Y.S. 507, 1936 N.Y. App. Div. LEXIS 5408

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

DecidedNovember 30, 1936

StatusPublished

This text of 249 A.D. 654 (In re Smith to Prove the Last Will & Testament of Lowe) 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 Smith to Prove the Last Will & Testament of Lowe, 249 A.D. 654, 291 N.Y.S. 507, 1936 N.Y. App. Div. LEXIS 5408 (N.Y. Ct. App. 1936).

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Opinion

Order of the Surrogate’s Court of Kings county denying the petitioner’s motion to set aside the notices of examination of the petitioner and Jessie F. Smith, his wife, and directing the examination to proceed as to items 1 and 2 only. Order in so far as it fails to provide for the examination as to item 3 affirmed, with ten dollars costs and disbursements to respondent, payable out of the estate. The examination, to the extent permitted, shall proceed on five days’ notice. While the value of a testator’s estate is a material subject of inquiry on the issue of undue influence (Matter of Woodward, 167 N. Y. 28; Matter of Sperry, 138 Misc. 549), we cannot say the surrogate wrongfully exercised his discretion in denying the examination in the instant ease. The petition shows the testatrix died seized of no real property and that the value of her personal property does not exceed $9,000. It does not appear she died seized of other property or property of greater value. Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., and Carswell, JJ., dissent.

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Order of the Surrogate’s Court of Kings county denying the petitioner’s motion to set aside the notices of examination of the petitioner and Jessie F. Smith, his wife, and directing the examination to proceed as to items 1 and 2 only. Order in so far as it fails to provide for the examination as to item 3 affirmed, with ten dollars costs and disbursements to respondent, payable out of the estate. The examination, to the extent permitted, shall proceed on five days’ notice. While the value of a testator’s estate is a material subject of inquiry on the issue of undue influence (Matter of Woodward, 167 N. Y. 28; Matter of Sperry, 138 Misc. 549), we cannot say the surrogate wrongfully exercised his discretion in denying the examination in the instant ease. The petition shows the testatrix died seized of no real property and that the value of her personal property does not exceed $9,000. It does not appear she died seized of other property or property of greater value. Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., and Carswell, JJ., dissent.

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Bluebook (online)

249 A.D. 654, 291 N.Y.S. 507, 1936 N.Y. App. Div. LEXIS 5408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smith-to-prove-the-last-will-testament-of-lowe-nyappdiv-1936.

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