In re Powers
Appellate Division of the Supreme Court of the State of New York
Appeal by William Powers, the petitioner, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of said court on the 26th day of April, 1916, upon the verdict of a jury as adjudges that the execution of the alleged last will and testament of Mary Powers, deceased, was procured by fraud and undue influence, and that the alleged will is, therefore, invalid and void.
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Appeal by William Powers, the petitioner, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of said court on the 26th day of April, 1916, upon the verdict of a jury as adjudges that the execution of the alleged last will and testament of Mary Powers, deceased, was procured by fraud and undue influence, and that the alleged will is, therefore, invalid and void. An appeal is also taken from an order of said Surrogate’s Court, entered in the office of the clerk of said court on the 26th day of April, 1916, denying petitioner’s motion to…
1Opinion of the Court
Jerks, P. J.:
This is a will contest in the Surrogate’s Court. The proof justified beyond discussion the findings of the jury of testamentary capacity and of due execution of the will. It did not justify the finding of fraud and of undue influence.
In Matter of Kindberg (207 N. Y. 220, 228), Cullen, Ch. J., for the court, says: “Undue influence is an affirmative assault on the validity of a will, and the burden of proof does not shift, but remains on the party who asserts its existence.” Such influence, must amount “to coercion and duress.” (Smith v. Keller, 2.05 N. Y. 44.) There must appear a…
2Cases cited8 opinions
- Ridden v. . ThrallNew York Court of Appeals · 1891
- In Re the Probate of the Will of KindbergNew York Court of Appeals · 1912
- Cudney v. . CudneyNew York Court of Appeals · 1877
- Waterman v. . WhitneyNew York Court of Appeals · 1854
- In Re the Probate of the Last Will of MondorfNew York Court of Appeals · 1888
3 more not listed; retrieve them via the Exa API.
3Cited by13 opinions
- In re the Probate of the Will of WaltherNew York Court of Appeals · 1959
- In re the Estate of HedgesAppellate Division of the Supreme Court of the State of New York · 1984
- In re the Probate of the Last Will & Testament of FleischmannAppellate Division of the Supreme Court of the State of New York · 1917
- Poluliah v. Fidelity High Income FundAppellate Division of the Supreme Court of the State of New York · 1984
- In re Proving the Last Will & Testament of PrenticeNew York Surrogate's Court · 1920
8 more not listed; retrieve them via the Exa API.