In re the Probate of the Will of De Nardo

Appellate Division of the Supreme Court of New York

In re the Probate of the Will of De Nardo

268 A.D. 865, 50 N.Y.S.2d 561, 1944 N.Y. App. Div. LEXIS 3944

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

DecidedOctober 9, 1944

StatusPublished

Cited by2 cases

This text of 268 A.D. 865 (In re the Probate of the Will of De Nardo) 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 De Nardo, 268 A.D. 865, 50 N.Y.S.2d 561, 1944 N.Y. App. Div. LEXIS 3944 (N.Y. Ct. App. 1944).

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Opinion

Contestants appeal from two orders of the Surrogate’s Court, Queens County, which denied their motions for leave to amend their objections. Orders affirmed, with one bill of ten dollars costs and disbursements to respondent Stephania De Nardo, payable out of the estate. In the first proposed amendment, appellants seek to plead an interlocutory judgment of annulment, rendered in the Supreme Court, New York County, annulling the marriage between the decedent and respondent De Nardo, his alleged widow, on the ground that decedent was a lunatic at the time of the marriage. This is immaterial. The fact that the proponent, the principal legatee named in the paper offered for probate, may not be the testator’s widow does not constitute a bar to the probate of the will. The annulment did not [866]*866effect a revocation of the testamentary provisions in favor of the wife. (Decedent Estate Law, § 34; Delafield v. Parish, 25 N. Y. 9; Matter of Evans, 113 App. Div. 373; Matter of Simpson, 155 Misc. 866.) The second proposed amendment alleges certain findings of fact in the annulment action respecting the lunacy of the decedent. Such findings are admissible on the issue of testamentary capacity raised by the original objections (Matter of Widmayer, 74 App. Div. 336; Van Rensselaer v. Akin, 22 Wend. 549) and being merely evidentiary, need not be pleaded. Close, P. J., Carswell, Johnston, Lewis and Aldrich, JJ., concur.

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Contestants appeal from two orders of the Surrogate’s Court, Queens County, which denied their motions for leave to amend their objections. Orders affirmed, with one bill of ten dollars costs and disbursements to respondent Stephania De Nardo, payable out of the estate. In the first proposed amendment, appellants seek to plead an interlocutory judgment of annulment, rendered in the Supreme Court, New York County, annulling the marriage between the decedent and respondent De Nardo, his alleged widow, on the ground that decedent was a lunatic at the time of the marriage. This is immaterial. The fact that the proponent, the principal legatee named in the paper offered for probate, may not be the testator’s widow does not constitute a bar to the probate of the will. The annulment did not [866]*866effect a revocation of the testamentary provisions in favor of the wife. (Decedent Estate Law, § 34; Delafield v. Parish, 25 N. Y. 9; Matter of Evans, 113 App. Div. 373; Matter of Simpson, 155 Misc. 866.) The second proposed amendment alleges certain findings of fact in the annulment action respecting the lunacy of the decedent. Such findings are admissible on the issue of testamentary capacity raised by the original objections (Matter of Widmayer, 74 App. Div. 336; Van Rensselaer v. Akin, 22 Wend. 549) and being merely evidentiary, need not be pleaded. Close, P. J., Carswell, Johnston, Lewis and Aldrich, JJ., concur.

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Bluebook (online)

268 A.D. 865, 50 N.Y.S.2d 561, 1944 N.Y. App. Div. LEXIS 3944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-de-nardo-nyappdiv-1944.

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