In re the Probate of the Alleged Last Will and Testament of Wyman , 103 N.Y.S. 69 ( 1907 )

Clarke, J.:

This is an appeal from a decree of the surrogate refusing to revoke the decree by which a paper alleged to be the last will and testament of Isaac Wyman had been admitted to probate upon consent.

The issues in regard to the proper factum of the will and testamentary capacity are those involved in the case in the Supreme Court of Wyman v. Wyman (118 App. Div. 109), in which the opinion was handed down herewith. The trial in the Surrogate’s Court came on after the trial in the Supreme Court, and upon, .practically the same evidence the learned surrogate reached the same conclusion as that arrived at in the Supreme. Court, namely, that the will had been duly executed, published and declared, and that the decedent had testamentary capacity and refused to revoke the decree admitting the instrument to probate heretofore made.

For the reasons stated in Wyman v. Wyman the decree of the surrogate was right and should be affirmed, with costs against the appellant Lorsch.

Pattebson, P. J., Ingbaham, McLaughlin and Scott, JJ., concurred.

Decree affirmed, with costs to be paid by appellant to respondent. Order filed.