Appellate Division of the Supreme Court of New York, 1902

In re Proving the Last Will & Testament of Tompkins

Appellate Division of the Supreme Court of New York · Decided July 1, 1902 · Jenks

69 A.D. 474

Counsel

Frank I. Young, for the appellant., William, L. Snyder and Platt c& Thompson, for the respondents Harriet V. Tompkins and others.

Cases that cite this one

11 later published cases cite this decision.

In re the Probate of a Paper Writing Purporting to be the Last Will & Testament of Richardson (Appellate Division of the Supreme Court of New York 1910)
In re the Probate of the Last Will & Testament & Codicil of Coffin (New York Surrogate's Court 1913)
In re the Proof & Probate of the Last Will & Testament of Burtis (Appellate Division of the Supreme Court of New York 1905)
In re the Probate of the Will of Satterlee (N.Y. 1957)
In re the Probate of the Last Will & Testament of Allaway (Appellate Division of the Supreme Court of New York 1919)
In re the Probate of the Last Will & Testament of Reynolds (Appellate Division of the Supreme Court of New York 1912)
In re Reynold's Will (Appellate Division of the Supreme Court of New York 1912)
In re the Probate of the Last Will & Testament of Kindberg (Appellate Division of the Supreme Court of New York 1910)
In re the Probate of the Last Will & Testament of Warnock (Appellate Division of the Supreme Court of New York 1905)
In re Warnock's Will (Appellate Division of the Supreme Court of New York 1905)
In re Proving the Last Will & Testament & Codicil of Shannon (Appellate Division of the Supreme Court of New York 1904)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Jenks, J.:

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, *475the case should be reconsidered by a jury. (Matter of Will of Ellick, 19 Wkly. Dig. 231; Matter of Hannah, 11 N. Y. St. Repr. 807; Reynolds v. Root, 62 Barb. 250; Matter of Pike, 83 Hun, 327, 331, citing Howland v. Taylor, 53 N. Y. 627; Matter of Lansing, 17 N. Y. St. Repr. 440; Van Orman v. Van Orman, 34 id. 824. See, too, Sutton v. Ray, 72 N. Y. 482, 484.) We hesitate to state the reasons for our conclusion in this case lest expression might be taken to indicate an opinion upon the questions which await the determination of a jury, and thereby we might seem to prejudge. (Van Orman v. Van Orman, supra, 826.) And, for the same reason, we are careful to say that this reversal, which is made necessary by our conclusion, does not indicate, in our opinion, that the learned and able surrogate positively erred in the result reached by him, but merely that such result on the evidence adduced before him and contained in the record now before us is not entirely satisfactory to this court. The decree of the Surrogate’s Court should be reversed, and a new trial, by a jury at a Trial Term of the Supreme Court held-in the county of Westchester, should be had on these questions:

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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.