In re the Estate of Scalone

170 A.D.2d 507

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1991
• Status: Published

Opinion

In a contested probate proceeding, the contestant appeals from a decree of the Surrogate’s Court, Suffolk County (Signorelli, S.), dated August 23, 1988, which, following the granting of the petitioner’s motion for judgment as a matter of law, made after both sides had rested, ordered that the will be admitted to probate.

Ordered that the decree is affirmed, with costs payable by the appellant personally.

Upon our review of the extensive record herein, we find no basis to set aside the determination of the Surrogate. The record establishes that the testatrix, while despondent over the death of her husband, was aware of the natural objects of her bounty and the nature and extent of her property, and, as such, was possessed of testamentary capacity (see, Matter of Slade, 106 AD2d 914, 915; Matter of Flynn, 71 AD2d 891). Further, the testimony of the two subscribing witnesses more than adequately justifies the conclusion that the will was duly executed (see, Matter of Matteo, 134 AD2d 261). Finally, as the contestant failed to set forth any evidence to support her claims of fraud and undue influence, her allegations in this regard were properly rejected (see, Matter of Bush, 85 AD2d ; cf., Matter of Collins, 124 AD2d 48, 53-54). Brown, J. P., Balletta, Rosenblatt and Ritter, JJ., concur.