In re Proving the Will of Sullivan — 244 N.Y. 518

Majority

p. 518

In the Matter of Proving the Will of Patrick Sullivan, Deceased. Julia Markson et al., Appellants; Thomas F. Magner et al., Respondents.

Headnote

Will — probate — testamentary capacity — insufficient proof of senile dementia.

Matter of Sullivan, 216 App. Div. 266 , affirmed.

(Argued September 30, 1926;

decided December 3, 1926.)

Appeal from a judgment, entered February 16, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a decree of the Kings County Surrogate’s Court which denied probate of a paper propounded as the last will of Patrick Sullivan, deceased, and remitting the matter to the Surrogate’s Court with a direction that the will be

p. 519

admitted to probate. The will was contested on the ground that at the time of its execution testator was suffering from senile dementia and lacked testamentary capacity. The Appellate Division held that the contention was not sustained by satisfactory evidence.

Otho S. Bowling and Robert H. Elder for appellants.

Patricio E. Callahan, Thomas F. Magner and James P. Judge for respondents.

Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Crane, Andrews and Lehman, JJ. Dissenting: His cock, Ch. J., Pound and McLaughlin, JJ.