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In re the Probate of the Last Will & Testament of Degen

96 N.Y. Sup. Ct. 143 Court N.Y. Gen. Term English

Judges Brown, P. J., and Dykman, J., concurred.

Delivered by Pratt, J.:

Contents

Majority

p. 143
In the Matter of the Probate of the Last Will and Testament of Helene Degen, Deceased. Joachim Frederick Rothgart, Appellant; Hugh McNeile, Respondent

Headnote

Contested probate of will — use of a certificate made by physicians previous to the execution of the will — what will warrant the reversal of the decree.
In a contest over tlie probate of a will it is not prejudicial to the contestant to permit doctors, who examined the testator long previous to the making of the will, to look at a certificate they had made, they having testified to their present recollection.
To warrant a reversal upon an appeal from, a decree admitting a will to probate after a contest, the error alleged must appear to have prejudiced the appellant.
Appeal by Joachim Frederick Rotligart, one of the heirs and next of kin of Helene Degen, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 24th day of February, 1892, admitting the will of Helene Degen to probate.
Charles J. Patterson, for the contestant, appellant.
Bernard J. Bouras and Henry Thompson, for the proponent, 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 o£ fact found by the surrogate are fully sustained by the evidence, and that the will was properly 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 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 the witnesses did not subscribe the will in the presence of the testatrix. (Matter of Will of Phillips, 98 N. Y. 267 .)

p. 144
It was not prejudicial to the contestant to permit the doctors, who examined the testatrix 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; Matter of Smith, 95 N. Y. 516 .)

I do not think this case can be properly classed as doubtful.

The judgment must be affirmed.

Brown, P. J., and Dykman, J., concurred.

Decree of surrogate affirmed, with costs.

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