In re the Probate of the Last Will & Testament of Fail

New York Surrogate's Court

In re the Probate of the Last Will & Testament of Fail

6 Mills Surr. 250, 56 Misc. 217, 107 N.Y.S. 224

DecidedOctober 15, 1907

StatusPublished

This text of 6 Mills Surr. 250 (In re the Probate of the Last Will & Testament of Fail) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Probate of the Last Will & Testament of Fail, 6 Mills Surr. 250, 56 Misc. 217, 107 N.Y.S. 224 (N.Y. Super. Ct. 1907).

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Opinion

Church, S.

On the probate herein, the proponent objects to the right of a party claiming to be a son of the deceased to contest the will, it 'being asserted that he is not a son of the deceased but a nephew of the deceased’s wife who had predeceased him. This was shown by the testimony of the various members of the family now living, who state that declarations to this effect were made by the deceased, his wife and a deceased brother of the contestant. The evidence also shows that these declarants alleged that the contestant was the son of one William Parker, a brother of the deceased’s wife, and that deceased and his wife had upon William Parker’s death taken contestant to live with them or, as some witnesses say, adopted him. This evidence is competent as declarations as to pedigree. Chase’s Steph. Dig. Ev. (2d ed.) 103; McKelvey Ev. 220; Eisenlord v. Clum, 126 N. Y. 564.

The contestant simply states that he is the son of the deceased and was born in Brooklyn. No attempt is made to show that he was the lawfully born child of the deceased nor is any explanation given why such testimony is not produced. In fact, the contestant admits that it was claimed he had a brother, Henry Parker. This is insufficient; and, believing the evidence as to pedigree, it is satisfactorily established that contestant is not a lawful child of deceased and hence is not a proper party to contest his will.

Decreed accordingly.

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Church, S.

On the probate herein, the proponent objects to the right of a party claiming to be a son of the deceased to contest the will, it 'being asserted that he is not a son of the deceased but a nephew of the deceased’s wife who had predeceased him. This was shown by the testimony of the various members of the family now living, who state that declarations to this effect were made by the deceased, his wife and a deceased brother of the contestant. The evidence also shows that these declarants alleged that the contestant was the son of one William Parker, a brother of the deceased’s wife, and that deceased and his wife had upon William Parker’s death taken contestant to live with them or, as some witnesses say, adopted him. This evidence is competent as declarations as to pedigree. Chase’s Steph. Dig. Ev. (2d ed.) 103; McKelvey Ev. 220; Eisenlord v. Clum, 126 N. Y. 564.

The contestant simply states that he is the son of the deceased and was born in Brooklyn. No attempt is made to show that he was the lawfully born child of the deceased nor is any explanation given why such testimony is not produced. In fact, the contestant admits that it was claimed he had a brother, Henry Parker. This is insufficient; and, believing the evidence as to pedigree, it is satisfactorily established that contestant is not a lawful child of deceased and hence is not a proper party to contest his will.

Decreed accordingly.

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6 Mills Surr. 250, 56 Misc. 217, 107 N.Y.S. 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-last-will-testament-of-fail-nysurct-1907.

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