In re the Estate of McCabe

136 Misc. 636, 243 N.Y.S. 759, 1929 N.Y. Misc. LEXIS 1122

• Court: New York Surrogate's Court
• Decided: September 10, 1929
• Status: Published

Opinion

Campbell, S.

Edward T. McCabe, alleging he is a son of the testator, Hugh McCabe, seeks permission to examine the subscribing witnesses to the document dated November 28, 1928, and offered for probate in this court as the last will and testament of the said Hugh McCabe, deceased.

The proponent of said alleged last will and testament objected to said examination of said subscribing witnesses on the ground that said Edward T. McCabe is not the son of said deceased, thereby requiring Edward T. McCabe to prove said allegation. Testimony was taken on this issue because unless Edward T. McCabe is interested in the estate of said deceased, he has no legal right to examine the subscribing witnesses.

No birth certificate was offered, but a baptismal certificate, in which the name of the father was blank, was offered in evidence. All the other testimony was to the effect of what Hugh McCabe and his wife had told others, living in the city of Schenectady, regarding the birth of the said Edward T. McCabe. No clear and concise testimony, either documentary or oral, was offered to prove conclusively that Edward T. McCabe was the son of Hugh McCabe, deceased.

After careful examination and consideration of all the testimony adduced, I am forced to the conclusion that Edward T. McCabe has not met the burden of proof legally imposed upon him and, therefore, the court is compelled to hold that Edward T. 'McCabe is not the son of Hugh McCabe, deceased, and that he is not a person otherwise interested in said estate.

• The motion to examine the subscribing witnesses to the document offered for probate as the last will and testament of Hugh McCabe is, therefore, denied.

Prepare findings accordingly.