In re the Application for Revocation of Probate of the Will of McMahon

Majority

p. 350

In the Matter of the Application for Revocation of Probate of the Will, etc., of Michael McMahon, Deceased.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Wills—Pkobate—Bevocation.

Tlie decree of a surrogate refusing to revoke probate will not be interfered with, although the provisions of the will may be unusual, where it appears that every formality as to its execution was complied with, after much consultation and examination by testator, and that he was of sound mind, and acted without restraint and that the will was his deliberate act.

Appeal from final decree of surrogate dismissing petition for revocation of probate of the will of Michael McMahon.

Wi Warn D. Veeder, for app’lts; W. JE. Osborn, for resp’ts.

This appeal is taken from the decree of the surrogate of Kings county refusing to revoke the probate of the last will and testament and codicil thereto of Michael McMahon, a resident of said county at his decease, which had been previously admitted to probate in said court, and adjudging that said will and codicil were each duly proven as such, and were the last will and testament and codicil thereto of said deceased. This will and codicil have been twice proven fully before the surrogate’s court of Kings county and by witnesses who apparently have a fair standing in the community. No testimony whatever was offered by those opposed to the will, either upon the probate thereof or upon the application made to revoke the probate, and no question of fact or law appears to be mentioned in the testimony. The testimony shows that every formality was complied with and that the papers were executed after much consultation and examination by the testator and that he was of sound disposing mind and memory, that he had in view his family, and that the will and codicils are his deliberate acts.

Although the provisions of the will are unusual, there is nothing in the evidence to show that the testator acted other than in entire freedom from restraint or undue influence in making it.

The decree of the surrogate refusing to set aside the probate of the-will and codicil and adjudging the same to be the last will and codicil thereto of said deceased is affirmed, with costs.

Pratt and Dykman, JJ., concur.