Legal Opinion · Dissent

In re Proving the Last Will & Testament of Irving

Appellate Division of the Supreme Court of the State of New York

Decided December 13, 1912Published

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

  1. Howland v. . TaylorNew York Court of Appeals · 1873
  2. In re the Probate of the Last Will & Testament of BrunorAppellate Division of the Supreme Court of the State of New York · 1897
  3. In re Manton's WillAppellate Division of the Supreme Court of the State of New York · 1898

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