In re Tompkins' Wild

Appellate Division of the Supreme Court of New York

In re Tompkins' Wild

74 N.Y.S. 1002

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

DecidedMarch 7, 1902

StatusPublished

Cited by2 cases

This text of 74 N.Y.S. 1002 (In re Tompkins' Wild) 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 Tompkins' Wild, 74 N.Y.S. 1002 (N.Y. Ct. App. 1902).

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Opinion

JENKS, J.

In Re Van Houten’s Will, 11 App. Div. 208, 42 N. Y. Supp. 919, we held that where the disposition which should be made of the questions of fact presented by the evidence is not free from doubt, and as the result reached in the surrogate’s court was not entirely satisfactory, the case, should be reconsidered by a jury. In re Ellick’s Will, 19 N. Y. Wkly. Dig. 231; In re Hannah, 45 Hun, 561; Reynolds v. Root, 62 Barb. 250; In re Pike’s Will, 83 Hun, 327, 331, 31 N. Y. Supp. 689, citing Howland v. Taylor, 53 N. Y. 627; In re Lansing (Sup.) 2 N. Y. Supp. 117; Van Orman v. Van Orman (Sup.) 11 N. Y. Supp. 931. See, too, Sutton v. Ray, 72 N. Y. 482, 484. We hesitate to state the reasons for our conclusions, lest expression might be taken to indicate an opinion upon the questions which await the determination of a jury, and thereby we might seem to prejudge questions which may eventually come up for judgment. Van Orman v. Van Orman (Sup.) 11 N. Y. Supp. 931. And for the .same reason we are careful to say that this reversal, which is made necessary by our conclusions, does not indicate, in our opinion, that the learned and able surrogate positively erred in the result reached by him, but merely that such result, on the evidence adduced before him, and contained in the record now before us, is not entirely satisfactory to this court.

The decree of the surrogate’s court should be reversed, and a new trial by a jury at a trial term of the supreme court held in the county of Westchester should be had on these questions: (1) Did decedent, Jotham S. Tompkins-, at the time of the execution of the will in question, of date March 23, 1899, have testamentary capacity? (2) Was the instrument purporting to be such will voluntarily made by him? (3) Was the execution by the decedent of the instrument of date March 23, 1899, purporting to be his last will and testament, procured by fraud, circumvention, or undue influence practiced upon him?—with costs of the appeal to abide the event of the new trial, payable out of the estate. All concur.

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JENKS, J.

In Re Van Houten’s Will, 11 App. Div. 208, 42 N. Y. Supp. 919, we held that where the disposition which should be made of the questions of fact presented by the evidence is not free from doubt, and as the result reached in the surrogate’s court was not entirely satisfactory, the case, should be reconsidered by a jury. In re Ellick’s Will, 19 N. Y. Wkly. Dig. 231; In re Hannah, 45 Hun, 561; Reynolds v. Root, 62 Barb. 250; In re Pike’s Will, 83 Hun, 327, 331, 31 N. Y. Supp. 689, citing Howland v. Taylor, 53 N. Y. 627; In re Lansing (Sup.) 2 N. Y. Supp. 117; Van Orman v. Van Orman (Sup.) 11 N. Y. Supp. 931. See, too, Sutton v. Ray, 72 N. Y. 482, 484. We hesitate to state the reasons for our conclusions, lest expression might be taken to indicate an opinion upon the questions which await the determination of a jury, and thereby we might seem to prejudge questions which may eventually come up for judgment. Van Orman v. Van Orman (Sup.) 11 N. Y. Supp. 931. And for the .same reason we are careful to say that this reversal, which is made necessary by our conclusions, does not indicate, in our opinion, that the learned and able surrogate positively erred in the result reached by him, but merely that such result, on the evidence adduced before him, and contained in the record now before us, is not entirely satisfactory to this court.

The decree of the surrogate’s court should be reversed, and a new trial by a jury at a trial term of the supreme court held in the county of Westchester should be had on these questions: (1) Did decedent, Jotham S. Tompkins-, at the time of the execution of the will in question, of date March 23, 1899, have testamentary capacity? (2) Was the instrument purporting to be such will voluntarily made by him? (3) Was the execution by the decedent of the instrument of date March 23, 1899, purporting to be his last will and testament, procured by fraud, circumvention, or undue influence practiced upon him?—with costs of the appeal to abide the event of the new trial, payable out of the estate. All concur.

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