21 N.Y.S. 801 | N.Y. Sup. Ct. | 1893
Joshua Rapplee, of the town of Barrington, in the county of Yates, died August 31, 1888, leaving a last will, which bears date September 20, 1886. This will was admitted to probate by the surrogate of Yates county on the 1st day of October, 1888, as a will of both real and personal property. Within one year after such probate, namely, on the 16th day of September, 1889, two of the children, and next of kin and heirs at law, of the testator, namely, Celestia Walling-ton and Jane Arwine, filed a petition with the surrogate, praying for revocation of the probate of the will, upon the ground that the testator was not, at the time of making and subscribing the will, of sound mind and memory, and was incapable of executing the same. Upon the return of citations duly issued to all parties interested in the controversy, much evidence was taken, the result of which was that the surrogate made his decree, which was entered on February 19, 1892, revoking
Under section 2588 of the Code of Civil Procedure,
“The language in this section requires an order for a jury trial only where the reversal is founded upon a question of fact, and the legislature undoubtedly intended that only where such was actually the case, and there was a real conflict of the evidence, and the surrogate’s court and the supreme court differed on the case, should the conflict be settled by a jury trial, in the mode prescribed. But that a new trial before a jury should be deemed necessary when there is no conflict in facts, and the matter is one of the conclusions from the facts, is not a construction reconcilable to reason, and we should refuse our sanction to such a construction. ”
See, also, the cases cited in that opinion
If there was no evidence before the surrogate in behalf of the contestants of the will which, standing alone, was sufficient to defeat the probate of the will, it is our duty, we think, to regard such failure of evidence as raising a question of law, and that consequently the decree revoking the probate should be reversed, and the original decree, admitting the will to probate, confirmed. We have looked into the details of the evidence adduced in behalf of the contestants of the will, and have made an abstract of them, but even this abstract would occupy too much space to be set forth at large. Of the 16 witnesses who were examined in behalf of the contestants, not one of them gave any facts which had a tendency to prove that the testator had not a disposing mind at the time of making the will, though all, or nearly all, of them, after describing the conduct of the testator at different periods during
“In case of either of the children of Mary E. Bapplee, Calista and Ann Bapplee, shall die before their father, without leaving any issue, them surviving, then, in that case, I hereby give and bequeath the portion of said children so dying as aforesaid to the brother and sisters of the one so dying as aforesaid, and not to the father, Hiram Bapplee, and Erastus Bapplee. ”
The origin of these changes was with the decedent himself, and not with the scrivener, and that they were reasonable and just, under all the circumstances, can admit of no doubt, for Hiram Bapplee and Erastus Bapplee were insolvent, and owed many debts.
Decree of the surrogate of Yates county, appealed from, reversed, with costs to the appellants, payable by the respondents personally, and the original probate of the will confirmed, with costs payable by petitioners. 411 concur.
Section 2588 is as follows: “Where the reversal or modification of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order directing the trial by a jury of the material "questions of fact arising upon the issues between the narties. ”