In re the Estate of MacDonald — 40 N.Y.2d 995

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p. 995

In the Matter of the Estate of Clara R. MacDonald, Deceased. Edith W. MacDonald, Appellant; Joseph Nolan, Respondent.

Argued November 16, 1976;

decided December 16, 1976

p. 996

Elmer L. Fingar and Gerald Nolan for appellant.

Stephen Holden, III, for respondent.

Memorandum. Although the hearsay testimony of the attorney-draftsman would, under usual circumstances, be inadmissible (see Matter of Kennedy, 167 NY 163 ; Matter of Staiger, 243 NY 468 , 472) the same might be received in the absence of objection (Matter of Findlay, 253 NY 1 , 11). The Surrogate considered this testimony in his finding that the proof offered was insufficient to rebut the presumption of intentional revocation. Since this finding of fact was affirmed by the Appellate Division, it is beyond the scope of our review.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, without costs, in a memorandum.

Cases cited

In re Proving the Last Will & Testament of Kennedy 167 NY 163 N.Y. 1901-05-14 p. 996
In re the Probate of the Will of Staiger 243 NY 468 N.Y. 1926-11-16 at 472 p. 996
In re the Estate of Findlay 253 NY 1 N.Y. 1930-02-11 at 11 p. 996