In re the Probate of Paper Propounded as the Last Will & Testament of Burchardi

255 A.D. 785, 6 N.Y.S.2d 924, 1938 N.Y. App. Div. LEXIS 5316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1938
• Status: Published

Opinion

Appeal by Edward B. Stott, contestant, from so much of the resettled decree of the Surrogate’s Court of the county of Suffolk, made and entered on the 10th day of January, 1938, as adjudges that the instrument in writing bearing date the 27th day of June, 1936, propounded as and for the last will and testament of the decedent, is such last will and testament, duly executed as required by law, and that the said testatrix at the time of executing such will was of full age, of sound mind and memory and not under any restraint and in all respects competent to devise real estate and bequeath personal property; and as further adjudges that such paper writing be admitted to probate as her last will and testament valid to pass real and personal property, that it be recorded and that letters testamentary issue to the executor named in such will, who may qualify thereunder. Resettled decree, in so far as appealed from, reversed on the law and the facts and a new trial ordered, with costs to the contestant-appellant, payable out of the estate, to abide the event. The determination of the surrogate was against the weight of the evidence. Lazansky, P. J., Carswell and Adel, JJ., concur; Hagarty and Taylor, JJ., concur in the reversal but dissent from the direction for a new trial and vote to deny probate of the instrument propounded, upon the ground that it was executed by the testatrix, enfeebled mentally, as a result of undue influence practiced upon her.