In re the Probate of the Will of Jensen

Appellate Division of the Supreme Court of New York

In re the Probate of the Will of Jensen

271 A.D.2d 1052

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

DecidedMarch 12, 1947

StatusPublished

This text of 271 A.D.2d 1052 (In re the Probate of the Will of Jensen) 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 Will of Jensen, 271 A.D.2d 1052 (N.Y. Ct. App. 1947).

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Opinion

Decree reversed on the law and facts and a new trial granted, without costs of this appeal to any party. Memorandum: We conclude that the testimony of testator’s son as to the contents of his father’s will made in 1937 was incompetent under section 347 of the Civil Practice Act and that the proponent preserved his objection thereto. Moreover the trial court, in our opinion, enforced too closely the New York rule as to the testimony of lay witnesses as announced in such cases as People v. Pekarz (185 N. Y. 470, 481) and People v. Mill (195 N. Y. 16, 25-26) with the result that the proponent was unnecessarily restricted in his examination of such witnesses. The jury findings of lack of testamentary capacity and undue influence were not supported by such a weight of testimony as to warrant us in concluding that the court’s rulings, in these respects, did not affect the result. In view of our reversal of the entire decree, it is unnecessary to pass upon1 the allowance made by the surrogate to the proponent. With the jury finding that the will was procured through the fraud and undue influence of proponent, as to the propriety of such an allowance, see Matter of Morrison (270 App. Div. 552). All concur. (The decree denies probate to a will. The appeal by contestant is from allowances to the special guardian and attorney for proponent.) Present — Taylor, P. J., Dowling, Harris, Larkin and Love, JJ.

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Decree reversed on the law and facts and a new trial granted, without costs of this appeal to any party. Memorandum: We conclude that the testimony of testator’s son as to the contents of his father’s will made in 1937 was incompetent under section 347 of the Civil Practice Act and that the proponent preserved his objection thereto. Moreover the trial court, in our opinion, enforced too closely the New York rule as to the testimony of lay witnesses as announced in such cases as People v. Pekarz (185 N. Y. 470, 481) and People v. Mill (195 N. Y. 16, 25-26) with the result that the proponent was unnecessarily restricted in his examination of such witnesses. The jury findings of lack of testamentary capacity and undue influence were not supported by such a weight of testimony as to warrant us in concluding that the court’s rulings, in these respects, did not affect the result. In view of our reversal of the entire decree, it is unnecessary to pass upon1 the allowance made by the surrogate to the proponent. With the jury finding that the will was procured through the fraud and undue influence of proponent, as to the propriety of such an allowance, see Matter of Morrison (270 App. Div. 552). All concur. (The decree denies probate to a will. The appeal by contestant is from allowances to the special guardian and attorney for proponent.) Present — Taylor, P. J., Dowling, Harris, Larkin and Love, JJ.

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271 A.D.2d 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-jensen-nyappdiv-1947.

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