Majority
p. 726(86 App. Div. 527.) In re LAWLOR’S WILL. (Supreme Court, Appellate Division, Second Department. July 24, 1903.) Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.
Headnote
1. Wills — Authority—Affidavit of Testator — Admissibility.In proceedings to probate a will, the affidavit of testatrix, made subsequent to the date of the will, to the effect that she did not make it, is inadmissible in evidence.
Appeal from Surrogate’s Court, Kings County.
Judicial proceedings on the probate of the will of Anna Eliza Lawlor, deceased. Appeal from a decree of the surrogate.
Francis A. McCloskey, for appellants.
Moses Weil, for respondents.
The affidavit of the testatrix, made on July 23, 1902, was not evidence to establish that she did not make the will dated June 4, 1902. Jackson v. Kniffen, 2 Johns. 31 , 35, 3 Am. Dec. 390 ; Waterman v. Whitney, 11 N. Y. 157 , 62 Am. Dec. 71 ; Eighmy v. The People, 79 N. Y. 546 ; Marx v. McGlynn, 88 N. Y 357 , 374; Matter of Kennedy’s Will, 167 N. Y. 163 , 172, 60 N. E. 442 ; Matter of Woodward’s Will, 167 N. Y. 29 , 30, 60 N. E. 233 . It is quite evident from the opinion that the learned surrogate considered this affidavit as a cogent piece of evidence on that question. The exception was well taken, and the decree must be reversed. All concur.
Cases cited
- Jackson ex dem. Coe v. Kniffen 2 Johns. 31 at 35, 3 p. 726
- Eighmy v. People 79 N. Y. 546 p. 726
- Marx v. McGlynn 88 N. Y 357 at 374 p. 726
- In re Proving the Last Will & Testament of Kennedy 167 N. Y. 163 at 172, 60 p. 726