Katz v. Schnaier
New York Supreme Court
Appeal from circuit court, New York county. Action by Lydia Katz against Celia Schnaier and others, under Code Civ. Proc. § 2653a, to determine the validity of the probate of the will of Jenuette Gerstle, deceased. The complaint was dismissed and plaintiff appeals. For former report, see 30 N. Y. Supp.. 1132, mem.
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Appeal from circuit court, New York county. Action by Lydia Katz against Celia Schnaier and others, under Code Civ. Proc. § 2653a, to determine the validity of the probate of the will of Jenuette Gerstle, deceased. The complaint was dismissed and plaintiff appeals. For former report, see 30 N. Y. Supp.. 1132, mem. June 30, 1890, Jennette Gerstle executed her last will and testament, by which she directed her executrix to pay to Lydia Katz, during life, the income on $9,000, and on her death to divide said $9,000 among her children. The executrix was also directed to pay to Rebecca Sanger,…
1Opinion of the CourtFollett, J.
No real estate passing under this will, and this action to vacate the probate having been begun more than one year after it was proved, the action cannot be maintained. Long v. Rodgers, 79 Hun, 441, 29 N. Y. Supp. 981. Again, the plaintiff, having elected to take under the will, cannot maintain this action to set it aside. Caulfield v. Sullivan, 85 N. Y. 153; Lee v. Tower, 124 N. Y. 370, 26 N. E. 943; 1 Jarm. Wills (6th Am. Ed.) 415. Every objection raised to the will in this action was raised by the plaintiff’s sister in the surrogate’s court, and the plaintiff consented in writing that the…
2Cases cited4 opinions
- Caulfield v. . SullivanNew York Court of Appeals · 1881
- Lee v. . TowerNew York Court of Appeals · 1891
- Hawke v. HawkeNew York Supreme Court · 1894
- Long v. RodgersNew York Supreme Court · 1894
3Cited by2 opinions
- Estate of BairdCalifornia Supreme Court · 1924
- Shea v. BergenNew York Supreme Court · 1908