In re the Probate of the Last Will & Testament of Heinz ( 1937 )

In a proceeding for the probate of a paper writing bearing date February 6, 1936, propounded as the last will and testament of the decedent, Anna Heinz, decree of the Surrogate’s Court of Queens county denying probate reversed on the law and the facts, with costs to appellants, payable out of the estate, and the matter remitted to the Surrogate’s Court with a direction to enter a decree (1) admitting the will to probate and (2) construing the fourth clause thereof to mean that the testator intended to forgive and discharge any indebtedness owing to her by her son George Heinz or her son Peter Heinz. The evidence was wholly insufficient to create an issue (a) as to the due execution of the alleged will, (b) as to the testamentary capacity of the decedent, (e) as to the alleged fraud, deceit and undue influence practiced upon the decedent, or (d) as to her freedom from restraint. The objections were and the verdict of the jury was unsupported by evidence. In the phase involving construction of the fourth clause of the will, as requested in the petition for probate as amended upon the trial, we are of opinion that it clearly appears that the testatrix intended to forgive and discharge any indebtedness owing to her by her son George Heinz or by her son Peter Heinz. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.