In Re the Revocation of the Probate of the Last Will & Testament of Keefe

Bartlett, J. The testator died June 7th, 1898, leaving a last will and testament executed forty-eight hours prior to that event, and which was probated a few days thereafter. The estate involved was a farm worth from $12,000 to $20,000, and personal property valued at about $3,500. The testator was a bachelor, eighty years of age, and left him surviving as his only heirs at law arid next of kin two sisters, two nieces and a nephew. Practically the entire estate was devised and bequeathed to strangers in blood, to wit, to the wife or family of the attending physician. The testator bequeathed to his aged sister, Margaret Keefe, with whom he had always resided and who was possessed of no means or property as the trial court found, the sum of two hundred Hollars. On the 10th of December, 1898, Anna M. Miller, the married sister of the testator, instituted this proceeding to revoke the probate of the will. A trial was had, considerable testimony taken and on the 22d day of May, 1899, a decree was entered, revoking the .probate as to personal estate. On 27ovember 14th, 1899, the Appellate Division reversed the decree of revocation and affirmed the original decree probating the will. We must assume that the decree was reversed upon a question of law, as the order appealed from does not state to the contrary. (Code of Civ. Pro., §§ 1338, 1361.) *354 Matter of Chapman, 162 N. Y. 456; Wetmore v. Wetmore, 162 N. Y. 503; People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417.) The facts found by the trial court are deemed approved by the Appellate Division, and it remains for us to determine whether they sustain the legal conclusions based thereon. We are permitted to examine the record only to ascertain if any of the findings of fact are unsupported by evidence, thereby disclosing legal error. (Bomeisler v. Forster, 154 N. Y. 237; Snyder v. Seaman, 157 N. Y. 453; Petrie v. Trustees of Hamilton College, 158 N. Y. 463; People v. Adirondack Ry. Co., 160 N. Y. 229, 235; Gannon v. McGuire, 160 N. Y. 476 ; Lannon v. Lynch, 160 N. Y. 483; Smith v. Syracuse Improvement Co., 161 N. Y. 489; Spellman v. Looschen, 162 N. Y. 268; Shotwell v. Dixon, 163 N. Y. 43; National Harrow Co. v. Bement & Sons, 163 N. Y. 505.) A careful reading of the record leads us to'the conclusion that there is a sharp conflict in the evidence as to fraud and undue influence, and particularly as to the inferences to be drawn from the testimony. There is also a conflict of evidence as to the due execution of the will and as to testamentary capacity. The learned counsel for the proponents and respondents, when considering this point, states in his brief as follows: “ bTone of the testimony of any witness is contradictory to, or in conflict with, the testimony of any other witness, except in case of witness Havens.” This is a direct admission. that there is a conflict of evidence,, and the fact that this witness was, as suggested, contradicted by three other witnesses does not get rid of the question of fact. This court recently, after reviewing a large number of cases, has laid down the rule that when the Appellate Division reverses on the law we have but three questions open to us here, viz.: The correctness of the rulings as to the admission and rejection of evidence; whether any material finding of fact is without evidence to support it, and whether the con *355 elusions of law are supported by the facts found. (National Harrow Co. v. Bement & Sons, 163 N. Y. 505, 508.) We have presented here no questions as to the admission and rejection of evidence, and the briefs are largely devoted to a discussion of the facts, not as found, but as claimed to be established by the record. We are of opinion that there are no material findings of fact without evidence to support them, that the conclusions of law are supported by the facts found, and that no error of law is disclosed sustaining the reversal of the surrogate’s decree by the Appellate Division. The order of the Appellate Division and the decree of the Surrogate’s Court of Rensselaer county, entered in pursuance of said order on the 19th day of January, 1900, should be reversed. The decree of the Surrogate’s Co'urt of Rensselaer county, entered the 22d day of May, 1899, revoking the probate of the will of John Keefe, deceased, should be affirmed, with costs to the appellants in all the courts, payable out of the estate of said John Keefe, deceased. Parker, Ch. J., O’Brien, Haight, Yann and Cullen, J J., concur; Landon, J., not sitting. Order reversed, etc.