Phalen v. United States Trust Co.
Appellate Division of the Supreme Court of the State of New York
■ Appeal by the defendant, the United States Trust Company of New.York, as trustee under the last will and testament of James Phalen, deceased, from. an interlocutory judgment of the Supremo Court, in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17tli day of June, 1904, upon the decision, of the court, rendered after a trial at the New York Special Term,,. overruling the said defendant’s demurrer to the complaint.
1ConcurrenceMcLaughlin, J.
I concur in the opinion of Mr.' Jtistice Ingraham in so far as he holds that the decree on the accounting of the executors,is á bar to this action, but I cannot agree with him that the admission to probate of the 7th codicil has the same effect. The question prese,nted to the-Surrogate’s Court upon the application for the probate was whether the-'will and codicils taken together was the last • will and testament of the testator, and this ■ required it to find, not whether the instruments or any of them had been made in violation of some agreement, but simply whether they had been executed…
2Cases cited4 opinions
- In Re the Probate of the Will of WalkerNew York Court of Appeals · 1892
- In Re the Accounting of United States Trust Co.New York Court of Appeals · 1903
- Kine v. FarrellAppellate Division of the Supreme Court of the State of New York · 1902
- Brown v. WheelerAppellate Division of the Supreme Court of the State of New York · 1900