77 N.Y.S. 513 | N.Y. App. Div. | 1902
On the 5th of September, 1900, Henry C. F. Koch died, leaving a will which has been admitted to probate and letters testamentary issued thereon. He left him surviving a widow and three sons, the plaintiff, a son by a former marriage, and the defendants William and Erduin. By his will he gave all of his property to his widow and the. two sons by his second marriage, no provision whatever being made for the plaintiff, for the reason, according to the language of the testator, as stated in the 12th clause of the will, that he considered “he was amply provided for by his grandmother, the late Mrs. Sarah Ann Heath.” The plaintiff, feeling aggrieved, brought this action under section 2653a of the Code of Civil Pro- " cedure, to test the validity of the will, charging in substance that the same was invalid in that it was procured by fraud and undue influence. At the trial, at the close of plaintiff’s case, the complaint was dismissed and from the judgment thereafter entered this appeal was taken.
By the terms of the section of the Code cited, the decree of the surrogate admitting the will to probate is prima facie evidence of its due attestation, execution and validity (Cook v. White, 43 App. Div. 388), and the burden of overcoming the same is upon-the one asserting the invalidity. (Dobie v. Armstrong, 160 N. Y. 584.)
A consideration of the record demonsti’ates that the plaintiff entirely failed in his attack upon the will. There is absolutely
■ The trial court, therefore, was right in dismissing the complaint and the judgment appealed from must be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien, and Laughlin, JJ., concurred.
Judgment affirmed, with costs.