In re the Probate of the Will of Paul

277 A.D.2d 1156

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1950
• Status: Published

Opinion

This is an appeal from a decree of Surrogate’s Court, Rensselaer County, admitting to probate the last will and testament of Frank Paul, deceased. The will was executed on December 18, 1949, and the testator died in the early morning of the following day. . The will was prepared by a doctor who had been the testator’s physician for a number of years. The doctor drew the will and acted as a witness thereto, and a registered nurse was also a subscribing witness. In testator’s will he left his property to a brother and the members of the brother’s family. Testator was survived by two other brothers and a number of nieces and nephews, children of deceased brothers. Appellants contend that the will was not duly executed and that testator lacked testamentary capacity. They offered no proof in support of their objections to the probate of the will. The doctor who drew the instrument and the nurse who witnessed it with him testified that the will was drawn in accordance with the directions of the testator. He signed it in their presence and they signed as witnesses thereto at his request. The doctor testified that the testator was of sound mind and memory and under no restraint. After a trial of the issues the Surrogate found that the will was properly executed and that testator was under no restraint. The evidence sustains his determination. Decree unanimously affirmed, with costs to the respondent payable out of the estate and with an allowance to the special guardian for the infant, John Paul, in the sum of $25, also payable out of the estate. Present — Heffernan, J. P., Brewster, Deyo, Bergan and Coon, JJ.