In re Proving the Will of Hermann

Headnote

Matter of Hermann, 178 App. Div. 182 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 18, 1917, which reversed two decrees of the Queens County Surrogate’s Court, one of which decrees denied probate to a will of decedent executed July 10, 1914, the other of which decrees admitted to probate a former will of decedent executed jointly by herself and the appellant on September 30, 1895, and also reversed an order of said Surrogate’s Court vacating and setting aside a decree admitting to probate the will of July 10, 1914, and permitting appellant to file objections to the probate thereof. The Appellate Division further directed reinstatement of the decree admitting to probate the will of 1914, with the same force and legal effect in all things as if it had not been vacated and set aside. The surrogate found both wills' to have been executed in full compliance with the statute but refused probate to the later will and admitted to probate the prior joint will of the decedent and George Hermann on the contention and objection of George Hermann that the decedent was restrained from making the later will “ by reason of her having entered into a joint and mutual will with said George Hermann, known as the last Will and Testament of George Hermann and Mary Hermann, his wife, and drawn and duly executed by both parties at her request.” Mary Hermann and George Hermann

were not husband and wife, although they lived together from about 1878 until decedent’s death. They had no children. The decedent, however, had a husband who is still living, and their two children are the respondents.