In re the Probate of the Last Will & Testament of Allaway
Appellate Division of the Supreme Court of the State of New York
Appeal by Robert H. Fisher, Jr., as executor, and by Sarah Gardner, as sole legatee and devisee under the alleged last will and testament of Hastings Allaway, deceased, from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 3d day of September, 1918, refusing probate to said will.
1Opinion of the Court
Jenks, P. J.:
This appeal is within our judgment in Matter of Tompkins (69 App. Div. 474). And the language used in Tompkins’s case applies to this case. It is true that the appellants could have had a jury trial upon seasonable demand, but their *88omission, even if deemed a waiver by them, does not preclude us from the direction of a jury trial upon the new trial or hearing, which we hereby order. (Code Civ. Proc. § 2763; Tracy v. Falvey, 102 App. Div. 586; Van Sickle v. Kellogg, 19 Mich. 49; Osgood v. Skinner, 186 Ill. 491, citing 12 Ency. of PI. & Pr. 270.) The following questions should be…
2Cases cited4 opinions
- Osgood v. SkinnerIllinois Supreme Court · 1900
- In re Proving the Last Will & Testament of TompkinsAppellate Division of the Supreme Court of the State of New York · 1902
- Van Sickle v. KelloggMichigan Supreme Court · 1869
- In re the Probate of a Paper Writing Purporting to Be the Last Will & Testament of SmithAppellate Division of the Supreme Court of the State of New York · 1917
3Cited by8 opinions
- In re the Probate of the Will of SatterleeAppellate Division of the Supreme Court of the State of New York · 1953
- In re the Probate of the Will of KaufmannAppellate Division of the Supreme Court of the State of New York · 1961
- In re the Accounting of GordonAppellate Division of the Supreme Court of the State of New York · 1962
- In re the Estate of MirskyNew York Surrogate's Court · 1975
- In re the Estate of StephaniNew York Surrogate's Court · 1936
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