69 A.D. 474 | N.Y. App. Div. | 1902
In Matter of Van Houten (11 App. Div. 208) we held that when the disposition which should be made of the questions of fact presented by the evidence-was not free from doubt, and when the result reached in the Surrogate’s Court was not entirely satisfactory,
1. Did decedent, Jotharn S. Tompkins, at the time of the execution of the will in question, of date March 23, 1899, have testamentary capacity ?
2. Was the instrument purporting to be such will voluntarily made by him 1
3. Was the execution by the decedent of the instrument of date March 23, 1899, purporting to be his last will and testament, procured by fraud, circumvention or undue influence practiced upon him ?
With costs of the appeal to abide the event of the new trial, payable out of the estate.
All concurred.
Decree of the Surrogate’s Court of Westchester county reversed and issues ordered to be tried by a jury, with costs of the appeal to abide the event of the new trial, payable out of the estate.