In re Proving the Last Will & Testament of Burke , 294 N.Y.S. 879 ( 1937 )

Decree of the Surrogate’s Court of Queens county, so far as it sustains the contestants’ objections, denies the proponent’s motion to set aside the verdict of the jury, refuses probate and awards costs to the contestants, reversed on the law, with costs to the executrix-appellant, payable out of the estate, and matter remitted to the Surrogate’s Court with directions to admit the will to probate. So far as it awards counsel fee and disbursements to the proponent, the decree is unanimously affirmed, without costs. The proof submitted by the contestants did not warrant the submission of any issue to the jury. Such proof was wholly insufficient to warrant a finding that the will had not been duly executed (Matter of Burnham, 201 App. Div. 621; affd., 234 N. Y. 475), or of lack of testamentary capacity (Matter of Glockner, 17 N. Y. St. Repr. 798; 2 N. Y. Supp. 97 [not officially published]; Matter of Heaton, 224 N. Y. 22), or of undue influence (Matter of Ruef, 180 App. Div. 203; affd., 223 N. Y. 582). The proponent’s motion for a directed verdict should have been granted. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.