106 Misc. 214 | N.Y. Sur. Ct. | 1919
This is an application to vacate a decree which admitted the will of the deceased to probate and for a new trial. The issues raised by the objections of the contestants were tried before the court and a jury, and after both sides had submitted their proof the jury found in favor of the proponent. The matter was tried at the Trial Term in November, 1918, and this application was made at chambers in December, 1918. It should therefore be made upon a case and exceptions (Wilcox v. Fox, 112 App. Div. 560), and as it is made upon the affidavit of the attorney for the contestants it should be denied.
Apart from this technical objection to the application, I am inclined to think that it should be denied upon the merits. The attorney for the contestants alleges that he had subpoenaed a physician who had
The attorney also alleges that two other witnesses were subpoenaed, but did not appear at the trial, and that he is informed and believes that they would testify ‘ ‘ that long prior to the time of the making of the will in question the decedent was not in his right mind and was easily influenced and was not capable of making a will.” It appears that one of these witnesses was served with a subpoena at ten-thirty a. m. of the day of the trial, and the other at nine-thirty a. m. No sufficient excuse is given for the' failure of the contestants to serve these witnesses with subpoenas at an earlier date. Besides, the moving papers should contain the substance of the testimony which the witnesses would give on a new trial so that the court could determine whether it would probably change the result. People v. Priori, 164 N. Y. 472.
The attorney also alleges “ upon information and belief ” that a half-brother of the deceased was not cited to appear in the proceeding brought to probate
Application denied.