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

254 A.D. 748, 4 N.Y.S.2d 58, 1938 N.Y. App. Div. LEXIS 7455

Opinion

Decree of the Surrogate's Court of Westchester county denying admission to probate of a paper writing bearing date the 29th day of June, 1936, as the last will and testament of decedent on the ground that there was lack of testamentary capacity and that the execution of the paper was the result of fraud, deceit or undue influence practiced upon decedent at a time when he was not free from restraint, reversed on the law and the facts, with costs to appellant, payable out of the estate, and matter remitted to the Surrogate's Court for the entry of a decree directing that such paper writing be admitted to probate as the last will and testament of the decedent. In our opinion, no proof at all was adduced to warrant the submission to the jury of the issues of restraint, fraud, deceit or undue influence. Nor should the issue with respect to lack of testamentary capacity have been submitted to the jury. There was no proof that the decedent lacked testamentary capacity, but, to the contrary, the witnesses were all in agreement that the decedent was rational and of sound mind. The mere fact that death resulted within eighteen hours from the making of the will, and that the decedent was in pain at the time of its making, presents no issue. {Matter of Burnham, 201 App. Div. 621; affd., 234 N. Y. 475.) Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.