In re the Probate of the Last Will & Testament of Fleischmann
Appellate Division of the Supreme Court of the State of New York
Appeal by Charles Eick from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 29th day of June, 1916, as adjudges that the execution of the alleged last will and testament and codicil of Aurelia Fleischmann, deceased, were procured by fraud or undue influence practiced upon the decedent, and that said papers propounded for probate are null and void.
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Appeal by Charles Eick from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 29th day of June, 1916, as adjudges that the execution of the alleged last will and testament and codicil of Aurelia Fleischmann, deceased, were procured by fraud or undue influence practiced upon the decedent, and that said papers propounded for probate are null and void. An appeal is also taken from an order of said Surrogate’s Court, entered in the office of said Surrogate’s Court on the 29th day of June, 1916, denying proponent’s motion…
1Opinion of the Court
Jenks, P. J.:
The proof did not justify the jury’s finding of fraud and undue influence. The burden was upon the contestants and could not shift. (Matter of Kindberg, 207 N. Y. 220, 228.) They were bound to adduce proof of facts that showed coercion or duress — a moral coercion destructive .of the testator’s free agency or an irresistible importunity that forced the testator to act against her actual will. (See Matter of Powers, 176 App. Div. 455, decided by this court January 5, 1917, citing authorities.) It is said cogently by Chase, J.j in Smith v. Keller (205 N. Y. at 44): “ A will cannot…
2Cases cited4 opinions
- In Re the Probate of the Will of KindbergNew York Court of Appeals · 1912
- Coffin v. . CoffinNew York Court of Appeals · 1861
- Brick v. . BrickNew York Court of Appeals · 1876
- In re PowersAppellate Division of the Supreme Court of the State of New York · 1917
3Cited by12 opinions
- In re the Probate of the Will of WaltherNew York Court of Appeals · 1959
- In re RuefAppellate Division of the Supreme Court of the State of New York · 1917
- In re BrandAppellate Division of the Supreme Court of the State of New York · 1918
- In re Proving the Last Will & Testament of PrenticeNew York Surrogate's Court · 1920
- In re the Contested Probate of the Last Will & Testament of TymesonNew York Surrogate's Court · 1921
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