In re Feinberg

May 1, 1989
Versions:150 A.D.2d 376
543 N.Y.S.2d 300
1989 N.Y. App. Div. LEXIS 5629

On the court’s own motion, its decision and order dated April 10, 1989 [149 AD2d 510], which determined an appeal from a decree of the Surrogate’s Court, Kings County, entered December 24, 1987, is recalled and vacated, and the following decision and order is substituted therefor:

*377In a contested probate proceeding, the objectants appeal from a decree of the Surrogate’s Court, Kings County (Bloom, S.), entered December 24, 1987, which, after a nonjury trial, ordered that the objections to probate be dismissed and admitted the will dated April 30, 1986, to probate.

Ordered that the decree is affirmed, with costs payable by the appellants personally.

The determination of the Surrogate, who presided at the trial and heard all of the testimony, is entitled to great weight. Unless shown to be clearly erroneous, it should not be set aside on appeal (see, Matter of Thorne, 108 AD2d 865; Matter of Poggemeyer, 87 AD2d 822).

We find that the conclusions of the Surrogate are fully supported by the record. The proponents clearly sustained their burden of proving the testamentary capacity of the testator (see, Matter of Kumstar, 66 NY2d 691). Mollen, P. J., Kunzeman, Spatt and Rosenblatt, JJ., concur.