In re the Estate of Balado

Appellate Division of the Supreme Court of New York

In re the Estate of Balado

84 A.D.2d 564, 443 N.Y.S.2d 266, 1981 N.Y. App. Div. LEXIS 15641

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

DecidedOctober 19, 1981

StatusPublished

This text of 84 A.D.2d 564 (In re the Estate of Balado) 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 the Estate of Balado, 84 A.D.2d 564, 443 N.Y.S.2d 266, 1981 N.Y. App. Div. LEXIS 15641 (N.Y. Ct. App. 1981).

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Opinion

In a probate proceeding, the appeal is from a decree of the Surrogate’s Court, Queens County (Laurino, S.), dated December 26, 1980, which, inter alia, directed that the instrument in question be admitted to probate, upon a directed verdict after a jury trial. Decree reversed, on the law, and new trial granted, with costs to abide the event, payable out of the estate only if the contestants shall be successful and if the proponent shall be successful then the costs of this appeal shall be payable by the contestants personally. CPLR 4519 (the “Dead Man’s” statute) has no application where the witness is examined in behalf of the adverse party and not as a witness in her own behalf. In the instant case one of the witnesses called by the contestants was the proponent of the will. As such she was hostile and not testifying in her own behalf. It was therefore error for the Surrogate to have precluded contestants from questioning proponent regarding conversations the latter may have had with the testator. This constitutes reversible error. (Matter of Anna, 248 NY 421.) Titone, J. P., Mangano, Gibbons and Thompson, JJ., concur.

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In a probate proceeding, the appeal is from a decree of the Surrogate’s Court, Queens County (Laurino, S.), dated December 26, 1980, which, inter alia, directed that the instrument in question be admitted to probate, upon a directed verdict after a jury trial. Decree reversed, on the law, and new trial granted, with costs to abide the event, payable out of the estate only if the contestants shall be successful and if the proponent shall be successful then the costs of this appeal shall be payable by the contestants personally. CPLR 4519 (the “Dead Man’s” statute) has no application where the witness is examined in behalf of the adverse party and not as a witness in her own behalf. In the instant case one of the witnesses called by the contestants was the proponent of the will. As such she was hostile and not testifying in her own behalf. It was therefore error for the Surrogate to have precluded contestants from questioning proponent regarding conversations the latter may have had with the testator. This constitutes reversible error. (Matter of Anna, 248 NY 421.) Titone, J. P., Mangano, Gibbons and Thompson, JJ., concur.

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Bluebook (online)

84 A.D.2d 564, 443 N.Y.S.2d 266, 1981 N.Y. App. Div. LEXIS 15641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-balado-nyappdiv-1981.

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