Majority
p. 1137In re DEGEN’S WILL. In the matter of the probate of the last will of Helene Degen, deceased. (Supreme Court, General Term, Second Department. July 26, 1895.)
Ayres & Walker, for appellant.
Sheehan, Southworth & Douras (Henry A. Thompson, of counsel), for respondent.
This is an appeal from a decree of the surrogate of Kings county, admitting to probate the will of Helene Degen, deceased, etc. An examination of the evidence satisfies us that the conclusions of fact found by the surrogate are fully sustained by the evidence, and that the will was property admitted to probate. It is true there was some conflict in the testimony, yet a clear preponderance seems to be in favor of the proponent. Besides, the surrogate had the advantage of seeing the witnesses and hearing them testify, and was thus better able to judge of the credibility of witnesses than
p. 1138
an appellate court. Neither do we discover any error in the rulings of the surrogate upon the trial. There was no merit in the point that witnesses did not subscribe the will in the presence of the testator. In re Phillips, 98 N. Y. 267 . It was not prejudicial to contestants to permit the doctors who examined the testator long previous to the making of the will, to wit, .August 20, 1890, to look at the certificate they had made, as they testified to their present recollection. The rule is that in appeals of this kind the error must appear to have prejudiced the appellant to warrant a reversal. Code Civ. Proc. § 2545; In re Smith, 95 N. Y. 516 . I do not think this case can be properly classed as doubtful. Judgment affirmed.
Cases cited
- In re to revoke the Probate of the Will of Phillips 98 N. Y. 267 p. 1138
- In re the Probate of the Will of Smith 95 N. Y. 516 p. 1138