In re Proving the Instrument Propounded for Probate as & for the Last Will and Testament of Rayner,

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| N.Y. App. Div. | Mar 15, 1904

Spring, J.:

The appellant is the executor named in the instrument rejected. He is, therefore, a party aggrieved, and consequently possesses sufficient interest to enable him to appeal. (Code Civ. Proc. §§ 1294, 2568; Matter of Stapleton, 71 App. Div. l.)

The contestant was a beneficiary in a previous will executed by the testatrix about two weeks before the instrument propounded. It was stipulated upon the hearing before the surrogate that this will was destroyed. If purposely destroyed by the testatrix, and she was competent at the time of its destruction, the respondent has no standing in court, for his sole interest and right to attack the will in controversy depend upon the validity and existence of the antecedent will. If it should appear upon a new trial that this *115interest had been obliterated^ the respondent ought not to be permitted to continue this contest.

The attesting witnesses and Mr. Chapin, the draftsman who prepared the will, show that the requirements pertaining to the execution of wills were complied with and that the testatrix at the time of its execution was competent to dispose of her property by will and was free from any restraint. The testimony of Dr. York, her attending physician, does not seriously impugn her testamentary capacity. At least there is sufficient doubt as to the correctness of the conclusion reached by the learned surrogate so that we deem it proper to direct a trial by jury of the material questions of fact involved. (Code Civ. Proc. § 2588.)

The decree of the Surrogate’s Court is, therefore, reversed, with costs to the appellant to abide the event and to be paid out of the estate of the decedent, and a new trial ordered at a Trial Term of the Supreme Court of the county of Erie.

The questions of fact to. be submitted to and disposed of by the jury and the form of the order to be settled by and before Mr. Justice Spring on two days’ notice.

All concurred.

Decree of Surrogate’s Court reversed, with costs to the appellant to abide event, to be paid out qf the estate of said decedent, and new trial ordered at a Trial Term of the Supreme Court in the county of Erie. The form of the order to be settled by and before Mr. Justice Spring on two days’ notice.