134 Misc. 750 | N.Y. Sur. Ct. | 1928
This is an application to vacate and set aside the decree admitting the will and codicil of the testatrix to probate which was entered in this court on the 7th day of April, 1926. The decree had been made upon the waiver of citation executed by Alice B. H. Day, the mother, as one of the next of kin of the decedent, which in effect was a consent to the probate of the will. The petitioners seek to set aside this waiver. The mother originally commenced a separate proceeding for the relief sought here. She died on the 21st day of April, 1928, before the matter could be brought on for formal hearing. The petitioners, as executors of her estate, thereupon initiated an independent proceeding and the two matters have been consolidated by the usual form of order. It is claimed by the petitioners that the husband of the testatrix procured the waiver of citation in the probate proceeding to be executed by the mother and that she was induced to sign it by misrepresentation of the husband as to the contents of the last will, by concealment of the contents of prior wills, and by other acts which amounted to fraud and misrepresentation on his part. It is also contended that the will which has been admitted to probate was the result of undue influence exerted by him upon his wife.
The application must be denied. Testimony has been taken by me as to the facts surrounding the execution of the waiver by the mother, and upon this evidence I find no fraud, misrepresentation or other misconduct on the part of the husband in the transaction. At the time of the execution of the waiver the nature of the latter paper was explained to her, the general terms of the will stated to
Assuming the most favorable inferences that may be drawn from the facts alleged by the petitioners tending to show the exercise of undue influence by the husband, the sufficiency of proof fails to meet the tests laid down by the authorities. The will was not a deathbed will or one made by testatrix in her last illness. It was made in 1924, almost two years before her death, at a time when she was in good health, and actively engaged in her domestic duties and in the social welfare work which appears to have strongly attracted her. The will is not an unjust will nor one usually found in cases of imposition. The husband is given only a fife income Of the residue, and the remainder of the trust and the great part of
Submit order on notice denying the application accordingly.