In re the Estate of Della Rocca

Appellate Division of the Supreme Court of New York

In re the Estate of Della Rocca

59 A.D.2d 891, 399 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 14081

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

DecidedNovember 7, 1977

StatusPublished

Cited by2 cases

This text of 59 A.D.2d 891 (In re the Estate of Della Rocca) 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 Della Rocca, 59 A.D.2d 891, 399 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 14081 (N.Y. Ct. App. 1977).

Pincite

Opinion

In a probate proceeding, the appeal is from a decree of the Surrogate’s Court, [892]*892Kings County, dated November 8, 1976, 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, with costs to both parties payable out of the estate (see SCPA 2304, subd 1, par [b], els [i], [iii]; subd 3), and new trial granted. At the trial the proponent offered the testimony of the two subscribing witnesses to the will. They testified to all of the statutory requirements for the proper execution of the document. However, the objectant offered as proof the testimony of a handwriting expert who stated his opinion that the signature of the will was not made by the same hand as the signatures on several conceded exemplars of the decedent’s signature. Despite the overwhelming proof that the will was properly executed by decedent, we believe that' the issue of the credibility of the handwriting expert should properly have been left to the jury. However unlikely a verdict for the objectant is on these facts, it cannot be said, as a matter of law, that there is no issue of fact for resolution by a jury. Hopkins, J. P., Margett and O’Connor, JJ., concur; Damiani, J., dissents and votes to affirm the decree upon the opinion of Surrogate Sobel.

Free access — add to your briefcase to read the full text and ask questions with AI

In a probate proceeding, the appeal is from a decree of the Surrogate’s Court, [892]*892Kings County, dated November 8, 1976, 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, with costs to both parties payable out of the estate (see SCPA 2304, subd 1, par [b], els [i], [iii]; subd 3), and new trial granted. At the trial the proponent offered the testimony of the two subscribing witnesses to the will. They testified to all of the statutory requirements for the proper execution of the document. However, the objectant offered as proof the testimony of a handwriting expert who stated his opinion that the signature of the will was not made by the same hand as the signatures on several conceded exemplars of the decedent’s signature. Despite the overwhelming proof that the will was properly executed by decedent, we believe that' the issue of the credibility of the handwriting expert should properly have been left to the jury. However unlikely a verdict for the objectant is on these facts, it cannot be said, as a matter of law, that there is no issue of fact for resolution by a jury. Hopkins, J. P., Margett and O’Connor, JJ., concur; Damiani, J., dissents and votes to affirm the decree upon the opinion of Surrogate Sobel.

Cite This Page — Counsel Stack

Bluebook (online)

59 A.D.2d 891, 399 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 14081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-della-rocca-nyappdiv-1977.

Opinion

Related

Cite This Page — Counsel Stack