In Re Kinane's Estate.

Decision Date26 June 1945
Citation42 A.2d 865
PartiesIn re KINANE'S ESTATE.
CourtNew Jersey Prerogative Court
OPINION TEXT STARTS HERE

Proceeding for the admission to probate of the will of Nora Kinane, deceased, contested by a niece of testatrix. From a decree granting probate to the will, contestant appeals.

Affirmed.

Syllabus by the Court

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1. An attestation clause to a will in proper form is prima facie evidence of the facts stated in it and raises a presumption that the execution and publication of the will were properly performed.

2. In an appeal from a decree of the Orphans' Court granting probate to a will after contest on the grounds of lack of testamentary capacity and improper execution of the will, the findings of the Orphans' Court will not be reversed where there is ample evidence to sustain the findings, and no conclusive proof to the contrary.

Robert L. Hood, of Newark, for appellant-caveator.

Breslin & Breslin, of Hackensack, for proponent.

LEWIS, Vice Ordinary.

This is an appeal from a decree of the Orphans' Court granting probate of a will. Testatrix, who was approximately sixty years old, executed the will on May 17, 1940, three days before her death. She died in a hospital from leukemia, which followed an attack of pneumonia, and was in the hospital for about a month. The will in question made bequests to her church and its pastor, and directed that her real estate be sold, out of which bequests were made to a nephew and two sisters, and the residue of the estate was left to three nieces. A prior will had provided that her entire estate should be divided between one of her sisters and her daughter, who takes nothing under the will now before the court. The will was contested before the Orphans' Court by this niece.

The contest of the will was made on two grounds-that the testatrix lacked testamentary capacity and that the will was improperly executed. The Orphans' Court found adversely to the appellant on both these issues. While there is a conflict of the testimony, and some of it of such a nature as to render somewhat doubtful the propriety of the findings of the Orphans' Court, I do not feel justified in reversing its decision.

Unquestionably the testatrix was in the last stages of exhaustion physically at the time of the execution of the will, so much so that she was unable to sign the will but executed it only by her mark. Her mind was also apparently sluggish, and for a considerable time prior to the execution she was scarcely responsive to remarks addressed to her. The attending physician went so far as to state that in his opinion she was incapable of giving instructions as to the terms of the will or of comprehending what she was doing when she executed it. On...

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