Carlsson v. Holly

Appeal from a decree of the New York County Surrogate’s Court, entered March 13, 1961 admitting to probate the last will and testament of Paul Holly, deceased, upon a directed verdict at a trial. Memorandum by the Court. Decree of the Surrogate’s Court, New York County, admitting decedent’s will to probate, affirmed, with costs to the respondent. The instrument offered for probate was executed November 23, 1959. The testator, a widower, died January 17, 1960, at Bellevue Hospital. The estate, amounting to approximately $23,000, was left to a nephew by marriage and that nephew’s wife, except for a bequest of $2,000 to decedent’s stepson. Objections were filed on behalf of decedent’s brother who resides in Czechoslovakia. A trial was had of the issues of fact, at the conclusion of which the Surrogate directed a verdict in favor of the proponent, holding that the requisite formalities had been complied with in the execution of the will, the testator had testamentary capacity, and that there was no sufficient evidence of fraud or undue influence requiring the submission of the issue to the jury. On appeal, objectant urges the credibility of a subscribing witness was put in issue and this raised a question of fact to be determined by the jury. Moreover, there was a question of fact whether the testator had a sufficient understanding of the English language to understand the nature, substance and effect of the instrument executed. However, the question of the credibility of the witness referred to did not arise in connection with the execution of the will, but of a separate instrument. And the testimony established that decedent chose to speak in the Slovak language rather than that he did not understand the English language. There was testimony that the lawyer who supervised the execution of the will conferred with decedent in the English language. There is no contention here that decedent lacked testamentary capacity. “A mere showing of opportunity and even of a motive to exercise 612 undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized. (Cudney v. Cudney, 68 N. Y. 148, 152; Matter of Reid, 298 N. Y. 878.) ” (Matter of Walther, 6 N Y 2d 49, 55.) At most, there was a showing of motive and opportunity, but no showing of such “moral coercion, which restrained independent action and destroyed free action” as to require submission to the jury. (Matter of Walther, supra, p. 53.)