In re the Probate of the Will of Carpen

Appellate Division of the Supreme Court of New York

In re the Probate of the Will of Carpen

15 A.D.2d 773, 224 N.Y.S.2d 751, 1962 N.Y. App. Div. LEXIS 11207

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

DecidedFebruary 27, 1962

StatusPublished

Cited by1 cases

This text of 15 A.D.2d 773 (In re the Probate of the Will of Carpen) 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.

Bluebook

In re the Probate of the Will of Carpen, 15 A.D.2d 773, 224 N.Y.S.2d 751, 1962 N.Y. App. Div. LEXIS 11207 (N.Y. Ct. App. 1962).

Pincite

Opinion

Entry and record of the jury’s verdict upon the remaining issues is directed pursuant to section 309 of the Surrogate’s Court Act. The proof upon the trial raised an issue of fact whether the will was the product of undue influence by the principal beneficiary, who participated, as attorney, in the preparation of the will. The proponent-respondent herein was not the draftsman nor a beneficiary. Inasmuch as the jury was ultimately unable to agree upon this issue, a new trial should have been ordered before another jury. It was incumbent upon the principal beneficiary to “ explain the circumstances and to show in the first instance that the gift was freely and willingly made” (Matter of Putnam, 257 N. Y. 140, 143; Matter of Satterlee, 281 App. Div. 251, 254). Although an explanation was proffered, it was for the jury to determine whether it was satisfactory or convincing. Because a new trial is required it is appropriate to suggest that the emphasis in the charge concerning the principal beneficiary’s professional reputation and success at the Bar would have been better omitted, lest a jury misconstrue its purpose. Thus, it was hardly advisable to advise the jury that the beneficiary’s reputation hung in the balance and, in effect, that his career rested in their hands. Settle order on notice. Concur—Botein, P. J., Breitel, Rabin, Yalente and Bastow, JJ.

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Entry and record of the jury’s verdict upon the remaining issues is directed pursuant to section 309 of the Surrogate’s Court Act. The proof upon the trial raised an issue of fact whether the will was the product of undue influence by the principal beneficiary, who participated, as attorney, in the preparation of the will. The proponent-respondent herein was not the draftsman nor a beneficiary. Inasmuch as the jury was ultimately unable to agree upon this issue, a new trial should have been ordered before another jury. It was incumbent upon the principal beneficiary to “ explain the circumstances and to show in the first instance that the gift was freely and willingly made” (Matter of Putnam, 257 N. Y. 140, 143; Matter of Satterlee, 281 App. Div. 251, 254). Although an explanation was proffered, it was for the jury to determine whether it was satisfactory or convincing. Because a new trial is required it is appropriate to suggest that the emphasis in the charge concerning the principal beneficiary’s professional reputation and success at the Bar would have been better omitted, lest a jury misconstrue its purpose. Thus, it was hardly advisable to advise the jury that the beneficiary’s reputation hung in the balance and, in effect, that his career rested in their hands. Settle order on notice. Concur—Botein, P. J., Breitel, Rabin, Yalente and Bastow, JJ.

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Bluebook (online)

15 A.D.2d 773, 224 N.Y.S.2d 751, 1962 N.Y. App. Div. LEXIS 11207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-carpen-nyappdiv-1962.

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