In re Probate of the Will of Fogarty — 275 A.D.2d 1057

Majority

p. 1057

In the Matter of Probate of the Will of Thomas G. Fogarty, Deceased. Katharine M. Fogarty et al., Appellants; Leo J. Brennan, as Executor and Trustee under the Will of Thomas G. Fogarty, Deceased, et al., Respondents.

Although the verdict was properly directed upon the issues as to which appellants have the burden of proof, other issues, upon which the burden was imposed upon respondent Brennan, depended for their determination upon the testimony of the subscribing witnesses to the will. The testimony of these witnesses was positive and not directly contradicted. They were, nevertheless, interested in the probate of the will to such extent as to require their credibility to be submitted to the jury. (Matter of Kindberg, 207 N. Y. 220 ; Van Gaasbeek v. Staples, 85 App. Div. 271 , affd. 177 N. Y. 524 ; Matter of Perkett, 192 App. Div. 846 .) Although the direction of a verdict was erroneous only as to such issues, all of the issues must be retried. (Matter of Gallo, 252 App. Div. 861 ; Matter of Lawler, 257 App. Div. 1098 .) Nolan, P. J., Carswell, Adel, Sneed and MacCrate, JJ., concur.

Cases cited

In re the Probate of the Will of Kindberg 207 N. Y. 220 N.Y. 1912-12-31 p. 1057
Van Gaasbeek v. Staples 85 App. Div. 271 N.Y. App. Div. 1903-06-30 p. 1057
Gaasbeek v. Staples 177 N. Y. 524 N.Y. 1903-12-08 p. 1057