In re Probate of the Last Will & Testament of Weinman , 248 A.D. 613 ( 1936 )

Decree of the Surrogate’s Court of Queens county, adjudging that the paper writing propounded as the last will and testament of the deceased was not duly executed in accordance with the laws of the State of New York, and denying probate thereof, entered upon the surrogate’s dismissal of the petition for probate on the merits, at the close of the petitioner’s proofs, reversed on the law and a new trial ordered of all the issues framed for trial by jury, with costs to each party filing a brief, payable out of the estate. We are of opinion (a) that the exclusion from the evidence of the paper propounded for probate was error, and (b) that the proponent established a prima fade ease and that the surrogate was in error in granting, at the close of proponent’s case, contestant’s motion to dismiss the petition for probate for failure of proof. Lazansky, P. J., CarsweU, Davis, Adel and Taylor, JJ., concur.