In re Proving the Last Will & Testament of Schaetz

Decree of the Surrogate’s Court, Queens county, denying admission to probate of a paper writing bearing date the 28th day of September, 1937, as the last will and testament of decedent, on the ground that the execution of the paper was the result of undue influence practiced upon the decedent, reversed on the law and the facts, with costs to the appellant, payable out of the estate, and matter remitted to the Surrogate’s Court for the entry of a decree directing that such paper writing be admitted to probate as the last will and testament of the decedent. In our opinion, no proof at all was adduced to warrant the submission to the jury of the issues of restraint or undue influence. Lazansky, P. J., Adel and Taylor, JJ., concur; Hagarty and Davis, JJ., dissent and vote to affirm.