In re Wyman's Will — 103 N.Y.S. 69

Majority

p. 69

(118 App. Div. 116)

In re WYMAN’S WILL.

(Supreme Court, Appellate Division, First Department.

March 8, 1907.)

Headnote

Appeal from Surrogate’s Court, New York County.

Judicial proceedings on the probate of the will of Isaac Wyman, deceased. Appeal from a decree of the Surrogate’s Court refusing to revoke the probate of the will. Affirmed.

Argued before PATTERSON, P. J., and McLAUGHLIN, INGRAHAM, CLARKE, and SCOTT, JJ.

C. Elliot Miner, for appellant.

Leo Levy (C. Arthur Levy, on the brief), for respondent Mary Wyman.

Harry Mack, for respondent Lemuel Wyman.

Bernard S. Heller, for respondents Heilbron and Heilman.

This is an appeal from the decree of the surrogate refusing to revoke the decree by which a paper alleged to be the'last Will and testament of Isaac Wyman had been admitted to probate upon consent. The issues in regard to the proper factum of the will and testamentary capacity are those involved in the case in the Supreme Court of Wyman v. Wyman, 103 N. Y. Supp. 64 , in which the opinion was handed down herewith. The trial in the Surrogate’s Court came on after the trial in the Supreme Court, and upon practically the same evidence the learned surrogate reached the same con

p. 70

elusion as that arrived atún the Supreme Court, namely, that the will had been duly executed, published, and declared, and that the decedent had testamentary capacity, and refused to revoke the decree admitting the instrument to probate heretofore made.

For the reasons stated in Wyman v. Wyman, 103 N. Y. Supp. 64 , the decree of the surrogate was right, and should be affirmed, with costs against the appellant, Lorsch. All concur.