269 A.D. 1054 | N.Y. App. Div. | 1945
Decree of the Surrogate’s Court, Queens County, insofar as it denies probate to the instrument offered as the last will and testament of the decedent on the ground that its execution was procured by coercion and undue influence, and awards costs to the contestants herein, reversed on the law and the facts, and the matter remitted to the Surrogate’s Court to enter a decree admitting the instrument to probate as prayed for in the petition. Insofar as the decree awards $700 to the special guardian for services, and $10 disbursements, it is unanimously affirmed. Costs on this appeal are awarded to the appellant and to the special guardian, payable out of the estate. Findings of fact that the instrument was duly executed and that the decedent had testamentary capacity affirmed. The other findings of fact and conclusions of law are reversed. The evidence fails to establish that the will of the decedent was overpowered so that she was unable to act freely upon her own volition. While the exercise of undue influence may, and most often must, be established by circumstantial evidence, there is no presumption that it was exercised, and it is not established by the fact that the sole beneficiary under the testamentary instrument was active in procuring its execution. Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.
