In re the Application for Probate of a Paper Purporting to be the Last Will & Testament of Van Woert

148 A.D. 932, 132 N.Y.S. 1149

Opinion

Decision amended by striking therefrom the words “ upon questions of fact ” and inserting in place thereof “on the ground that the uncontradicted evidence shows that by the mutilation the testatrix did not intend to revoke the entire will.” All concurred; Smith, P. J., and Betts, J., voting for a further modification to require a submission of the question to a jury, being of the opinion that, notwithstanding the evidence is uncontradicted, there is still a question of fact as to the intention of the testatrix in mutilating the will, which should be determined by a j ury. (See 147 App. Div. 483.)