New York Court of Appeals, 1979

In re the Estate of Fiumara

New York Court of Appeals · Decided June 5, 1979

47 N.Y.2d 845; 392 N.E.2d 565; 418 N.Y.S.2d 579; 1979 N.Y. LEXIS 2118

Cases that cite this one

32 later published cases cite this decision. The 25 that cite it most often are listed here.

In re Favaloro (Appellate Division of the Supreme Court of New York 2012)
In re the Estate of Zirinsky (Appellate Division of the Supreme Court of New York 2007)
In re the Estate of D'Agostino (Appellate Division of the Supreme Court of New York 2001)
In re the Estate of Klitgaard (Appellate Division of the Supreme Court of New York 1981)
Matter of Reich (Appellate Division of the Supreme Court of New York 2026)
Lewis v. DiMaggio (Appellate Division of the Supreme Court of New York 2017)
Matter of Brown (Appellate Division of the Supreme Court of New York 2016)
In re the Estate of Sanger (New York Surrogate's Court 2014)
Jacks v. D'Ambrosio (Appellate Division of the Supreme Court of New York 2010)
In re the Estate of James (Appellate Division of the Supreme Court of New York 2009)
In re the Estate of Eastman (Appellate Division of the Supreme Court of New York 2009)
In re Estate of Ruparshek (Appellate Division of the Supreme Court of New York 2007)
In re Mildred M.J. (Appellate Division of the Supreme Court of New York 2007)
In re the Estate of Malone (Appellate Division of the Supreme Court of New York 2007)
In re the Estate of de Heredia Ryan (Appellate Division of the Supreme Court of New York 2006)
In re Estate of Neuman (Appellate Division of the Supreme Court of New York 2005)
In re the Estate of Fellows (Appellate Division of the Supreme Court of New York 2005)
In re the Estate of Chiurazzi (Appellate Division of the Supreme Court of New York 2002)
Thea v. Thea (Appellate Division of the Supreme Court of New York 2001)
In re the Estate of Bustanoby (Appellate Division of the Supreme Court of New York 1999)
In re the Estate of Zimmerman (Appellate Division of the Supreme Court of New York 1999)
In re the Estate of Buchanan (Appellate Division of the Supreme Court of New York 1997)
In re the Estate of Walters (Supreme Court of The Virgin Islands 1997)
In re the Estate of Bianco (Appellate Division of the Supreme Court of New York 1993)
In re the Estate of Tracy (Appellate Division of the Supreme Court of New York 1993)

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

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs against the appellant.

In the absence of evidence of a substantial nature inconsistent with any inference to the contrary, the Surrogate properly refused to submit the undue influence claim to the jury (see Matter of Walther, 6 NY2d 49). While the circumstantial evidence adduced at trial may have tended to indicate the existence of an opportunity and a motive on the part of the proponent to exercise undue influence, there was no showing that it in fact was ever exercised. Standing alone, the fact that the will favored one child over the other does not supply this inference (see 1 Page, Wills [Bowe-Parker, rev], § 15.8, p 735). Thus, as a matter of law, contestant’s proofs fell short of establishing a prima facie case (see Matter of Walther, supra, p 55; Children’s Aid Soc. v Loveridge, 70 NY 387, 394-395).

*847Nor has contestant set forth any reason for us to disturb the jury verdict, affirmed below, that the testator possessed the requisite testamentary capacity at the time the will was executed. The record reveals that the attesting witnesses all testified that, despite his physical infirmity, the testator was lucid and rational on that occasion. Though disputed by contestant’s expert, a neurologist who, on the basis of a single brief examination two months after that date, testified that the testator was suffering from severe senile dementia, there was ample proof to support the jury finding of testamentary capacity.

Finally, as to the claim of prejudicial error in the Surrogate’s sustaining of objections, essentially on unarticulated grounds of form or materiality or inadequate foundation, to a series of questions put by the contestant to his expert witness, the ruling was well within the compass of the Judge’s discretion and, in any event, usually accompanied by a curative suggestion that the questions be properly reframed (see, generally, 3 Page, Wills [Bowe-Parker, rev], § 26.84, p 178).

Chief Judge Cooke, and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed, etc.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.