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

Appellate Division of the Supreme Court of New York

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

257 A.D. 996, 13 N.Y.S.2d 632, 1939 N.Y. App. Div. LEXIS 8856

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1939

StatusPublished

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This text of 257 A.D. 996 (In re the Probate of the Last Will & Testament of Tremain) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York 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 Tremain, 257 A.D. 996, 13 N.Y.S.2d 632, 1939 N.Y. App. Div. LEXIS 8856 (N.Y. Ct. App. 1939).

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Opinion

Decree of the Surrogate’s Court, Westchester county, admitting to probate in its original form a script propounded as the will of the decedent, unanimously affirmed, with costs to the respondent, payable out of the estate. Our views on the ultimate and substantial=question here involved makes unnecessary the consideration of any other contention. No jury question existed in respect to the intent with which the markings on the script propounded were made. No such question could arise unless and until it appeared that the markings were of such a character that they so affected such a vital part of the will as presumptively to effect a revocation. Here the markings did npt affect the will in its entirety or a vital part thereof, such as a signature, in either of which events a revocation -prima facie of the entire will would have been effected. Assuming, therefore, that the markings placed on the script by the decedent were placed there with intent to effect a revocation, wh. ih* is all that a jury could find at the behest of the contestants, the markings wei i ineffectual to effect a revocation, and the script was, under the otherwise concede'! I facts, properly admitted to probate. (Quinn v. Quinn, 1 Thomp. & C. 437, 44 f'iwd Lovell v. Quitman, 88 N. Y. 377; Dec. Est. Law, § 34.) Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ. [168 Misc. 549.]

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Decree of the Surrogate’s Court, Westchester county, admitting to probate in its original form a script propounded as the will of the decedent, unanimously affirmed, with costs to the respondent, payable out of the estate. Our views on the ultimate and substantial=question here involved makes unnecessary the consideration of any other contention. No jury question existed in respect to the intent with which the markings on the script propounded were made. No such question could arise unless and until it appeared that the markings were of such a character that they so affected such a vital part of the will as presumptively to effect a revocation. Here the markings did npt affect the will in its entirety or a vital part thereof, such as a signature, in either of which events a revocation -prima facie of the entire will would have been effected. Assuming, therefore, that the markings placed on the script by the decedent were placed there with intent to effect a revocation, wh. ih* is all that a jury could find at the behest of the contestants, the markings wei i ineffectual to effect a revocation, and the script was, under the otherwise concede'! I facts, properly admitted to probate. (Quinn v. Quinn, 1 Thomp. & C. 437, 44 f'iwd Lovell v. Quitman, 88 N. Y. 377; Dec. Est. Law, § 34.) Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ. [168 Misc. 549.]

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257 A.D. 996, 13 N.Y.S.2d 632, 1939 N.Y. App. Div. LEXIS 8856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-last-will-testament-of-tremain-nyappdiv-1939.

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