In re the Will of Nole

Appellate Division of the Supreme Court of New York

In re the Will of Nole

267 A.D. 379, 46 N.Y.S.2d 429, 1944 N.Y. App. Div. LEXIS 4729

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

DecidedFebruary 11, 1944

StatusPublished

This text of 267 A.D. 379 (In re the Will of Nole) 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 Will of Nole, 267 A.D. 379, 46 N.Y.S.2d 429, 1944 N.Y. App. Div. LEXIS 4729 (N.Y. Ct. App. 1944).

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Opinion

Per Curiam.

Probate of the purported will of Josephine Hole, deceased, has been denied on the ground that the proof was insufficient to show that decedent understood the contents of the document.

The evidence showed that the paper was prepared by a lawyer who had been consulted by decedent and to whom she had given instructions concerning her testamentary intentions. Decedent was of Italian birth, but had been forty years in this country. She owned real estate and had bank accounts. There was a dispute (which, in fact, was the main issue involved) as to the extent to which decedent understood the English language. At the time of execution the contents of the document, after being read by the lawyer in English, were interpreted by decedent’s son. His selection to act as interpreter was apparently with the consent of deceased. Ho one could swear to the correctness of the translation, for the son had since died, and the lawyer and another who acted as subscribing witnesses did not understand the Italian language. If the interpreter was [380]*380one selected by common consent of the parties, it might well be that under such circumstances his interpretation would prima facie be deemed correct. (People v. Sing, 242 N. Y. 419; Commonwealth v. Vose, 157 Mass. 393.)

The testimony to support probate was taken by deposition which was read into the record. The daughter-in-law of decedent testified orally against probate. There was some contradiction on the subject of decedent’s knowledge of English, but the proof was very scanty on this subject. There was no proof whatever as to the son’s knowledge of Italian.-

We deem that the interest of justice requires a new trial at which further proof may be introduced on the vital issues involved.

The decree should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Townley, Glennon, Cohn and Callahan, JJ., concur; Martin, P. J., dissents and votes to affirm for the reasons stated in the opinion of the surrogate.

Decree reversed and a new trial ordered, with costs to the appellant to abide the event.

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Per Curiam.

Probate of the purported will of Josephine Hole, deceased, has been denied on the ground that the proof was insufficient to show that decedent understood the contents of the document.

The evidence showed that the paper was prepared by a lawyer who had been consulted by decedent and to whom she had given instructions concerning her testamentary intentions. Decedent was of Italian birth, but had been forty years in this country. She owned real estate and had bank accounts. There was a dispute (which, in fact, was the main issue involved) as to the extent to which decedent understood the English language. At the time of execution the contents of the document, after being read by the lawyer in English, were interpreted by decedent’s son. His selection to act as interpreter was apparently with the consent of deceased. Ho one could swear to the correctness of the translation, for the son had since died, and the lawyer and another who acted as subscribing witnesses did not understand the Italian language. If the interpreter was [380]*380one selected by common consent of the parties, it might well be that under such circumstances his interpretation would prima facie be deemed correct. (People v. Sing, 242 N. Y. 419; Commonwealth v. Vose, 157 Mass. 393.)

The testimony to support probate was taken by deposition which was read into the record. The daughter-in-law of decedent testified orally against probate. There was some contradiction on the subject of decedent’s knowledge of English, but the proof was very scanty on this subject. There was no proof whatever as to the son’s knowledge of Italian.-

We deem that the interest of justice requires a new trial at which further proof may be introduced on the vital issues involved.

The decree should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Townley, Glennon, Cohn and Callahan, JJ., concur; Martin, P. J., dissents and votes to affirm for the reasons stated in the opinion of the surrogate.

Decree reversed and a new trial ordered, with costs to the appellant to abide the event.

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267 A.D. 379, 46 N.Y.S.2d 429, 1944 N.Y. App. Div. LEXIS 4729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-will-of-nole-nyappdiv-1944.

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