Carolan v. O'Donnell — 197 N.Y. 599

Majority

p. 599

Patrick M. Carolan, Individually and as Executor of Neal O'Donnell, Deceased, Respondent, v. John J. O'Donnell et al., Individually and as Administrators of the Estate of Andrew O'Donnell et al., Appellants, Impleaded with Others.

Headnote

Carolan v. O’Donnell, 128 App. Div. 924 , reversed.

(Argued January 19, 1910;

decided February 8, 1910.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1908, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial in an action to determine the validity of a written instrument propounded as the will of Neal O’Donnell, deceased.

James W. Osborne and Edwin W. Willcox for appellants.

Morgan J. O'Brian, Joseph H. Fargis and James L. Clare for respondent.

Judgment reversed and new trial granted, costs to abide event, on the ground that there was a question of fact as to the mental capacity of the testator which should have been submitted to the jury ; no opinion.

Concur: Cullen, Ch. J., Gray, Edward T. Bartlett, Haight, Vann, Willard Bartlett and Chase, JJ.