In re Proving the Alleged Last Will & Testament of Small
Appellate Division of the Supreme Court of the State of New York
Appeal by Adam Walrath, the executor named in the last will and testament of Dan Small, deceased, from a decree of the Surrogate’s Court of Montgomery county, entered m said Surrogate’s Court on the 2d day of May, 1904, refusing to admit to probate a certain instrument purporting to be the last will and testament of Dan Small, deceased. Daniel Small died on JSTovember 2, 1903, at the age of about forty years.
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Appeal by Adam Walrath, the executor named in the last will and testament of Dan Small, deceased, from a decree of the Surrogate’s Court of Montgomery county, entered m said Surrogate’s Court on the 2d day of May, 1904, refusing to admit to probate a certain instrument purporting to be the last will and testament of Dan Small, deceased. Daniel Small died on JSTovember 2, 1903, at the age of about forty years. He left a last will and testament, by which he gave all his property to Dr. Adam Walrath to the exclusion of all his relatives, and named him as the sole executor thereof. The only…
1Opinion of the Court
Parker, P. J.:
The refusal of the surrogate to admit this will to probate is evidently based upon the theory that the testator was under i;he influence of Dr. Walrath at the time he made it, and that owing to his mental incapacity, he has been unduly influenced in the doctor’s favor, to the unjust exclusion of his own relatives. The objections that the paper was not executed in due form, and that the deceased was under duress, threats or force when he so executed it, are ■clearly not proven. As to the other question, that it was brought about by “ undue influence,” I am not at all satisfied…
2Cases cited2 opinions
- In re the Probate of the Last Will & Testament of SprattAppellate Division of the Supreme Court of the State of New York · 1896
- In re Probate of the Last Will & Testament of CornellAppellate Division of the Supreme Court of the State of New York · 1899
3Cited by2 opinions
- In re Benjamin's WillNew York Surrogate's Court · 1911
- In re the Estate of ArnoldNew York Surrogate's Court · 1983