In re the Estate of Kirkholder
Appellate Division of the Supreme Court of the State of New York
Appeal by the petitioner, Florine A. Kirkholder, from a decree of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 24th day of December, 1915, adjudging and decreeing that the petitioner is not entitled to the legacy of $5,000, mentioned in the 7th paragraph of the last will and testament of William H. Kirkholder, deceased, dated May 17, 1907, or to any part thereof, and dismissing her petition for the judicial settlement of…
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Appeal by the petitioner, Florine A. Kirkholder, from a decree of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 24th day of December, 1915, adjudging and decreeing that the petitioner is not entitled to the legacy of $5,000, mentioned in the 7th paragraph of the last will and testament of William H. Kirkholder, deceased, dated May 17, 1907, or to any part thereof, and dismissing her petition for the judicial settlement of the accounts of the executor.
1Opinion of the Court
Foote, J.:
I think a legatee under a will which contains a clause avoiding the legacy in case he “ shall * * * controvert, dispute or call in question the validity of this will,” does not forfeit his legacy by presenting for probate an alleged later will which is denied probate, provided he acts in good faith with probable cause to believe that such later will is a genuine instrument and is entitled to probate. (See Matter of Kathan’s Will, 141 N. Y. Supp. 705, and the authorities there cited.) But one who in bad faith presents for probate a spurious instrument with intent thereby to overthrow…
2Cases cited6 opinions
- House v. . LockwoodNew York Court of Appeals · 1893
- Stannard v. . HubbellNew York Court of Appeals · 1890
- Reynolds v. . Aetna Life Ins. Co.New York Court of Appeals · 1899
- In re Kathan's WillNew York Surrogate's Court · 1913
- Gugel v. . HiscoxNew York Court of Appeals · 1915
1 more not listed; retrieve them via the Exa API.
3Cited by15 opinions
- In Re Estate of BerglandCalifornia Supreme Court · 1919
- Calvery v. CalveryTexas Supreme Court · 1932
- Hayden v. NuzumWisconsin Supreme Court · 1925
- In re the Estate of CroninNew York Surrogate's Court · 1932
- Matter of Estate of WestfahlSupreme Court of Oklahoma · 1983
10 more not listed; retrieve them via the Exa API.