In re Solomon's Estate — 145 N.Y.S. 528

Majority

p. 528

In re SOLOMON’S ESTATE.

(Surrogate’s Court, New York County.

January 29, 1914.)

Headnote

1. Wills (§ 212*)—Probate—Agreement of Parties Interested. Attempts to defeat the probate of unwelcome wills by a family arrangement connived at by attesting witnesses are contrary to public policy and good citizenship and should be rebuked and frustrated in a court of probate if possible.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 519; Dec. Dig. § 212.*]

2. Wills (§ 303*)—Probate—Evidence—Weight and Sufficiency. The presumption of due attestation of a will from a certificate of attestation cannot overcome the positive testimony of the attesting witnesses showing that the statute was not complied with.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 711-723; Dec. Dig. § 303.*]

Proceeding to probate the will of Minnie Rinaldo Solomon. Probate refused.

Paul Hellinger, of New York City, for proponent.

Richard Kelly, of New York City, for Joel Rinaldo.

D. S. Hill, of Liberty, for contestant Edward Rinaldo.

William J. Burke, of New York City, special guardian.

[1,2] The will of Mrs. Solomon was revoked by her second marriage, but confirmed by a codicil, if the latter is probative. I should like very much to find that the codicil was duly executed, as the dying woman had it under her pillow, and I am convinced that there is an effort in some instances to defeat the probate of unwelcome wills by some family arrangement, occasionally connived at by the attesting witnesses. Such attempts are so contrary to public policy and good citizenship that they should be rebuked and frustrated in a court of probate, if possible. In this proceeding, unfortunately, as I believe, the testimony of the attesting witnesses of a noncompliance with the statute of wills is too positive to be overcome by a presumption from the very full certificate of attestation contradicting the attesting witnesses. Had the witnesses admitted a loss of memory, I should have presumed for the will despite their testimony; but the cross-examination only made them the more positive that they remembered all that took place. What took place, according to them, defeats probate.

Probate refused. Settle decree accordingly.