In re Proving the Last Will & Testament of Irving
Appellate Division of the Supreme Court of the State of New York
Appeal by Harry F. O’Neill, as special guardian of Delia Ogg, incompetent, the contestant, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 24th day of May, 1912, admitting to probate a paper propounded as the last will and testament of Mary Irving, deceased.
1Dissent
McLaughlin, J. (dissenting):
On an appeal from a surrogate’s decree admitting a will to probate the Appellate Division should consider the whole evidence de novo. . (Matter of Brunor, 21 App. Div. 259.) In such consideration it has the same power to decide questions of fact' which the surrogate had (Code Civ. Proc. § 2586), and if in doubt whether the will were duly executed, to set aside the pro-: bate and direct a trial of the issues before a jury. (Code Civ. Proc. § 2588; Matter of Manton, 32 App. Div. 626; Howland v. Taylor, 53 N. Y. 627.)
After a careful consideration of all the evidence…
2Cases cited3 opinions
- Howland v. . TaylorNew York Court of Appeals · 1873
- In re the Probate of the Last Will & Testament of BrunorAppellate Division of the Supreme Court of the State of New York · 1897
- In re Manton's WillAppellate Division of the Supreme Court of the State of New York · 1898