Opinion
July Term, 1903.
Francis A. McCloskey and Charles H. Levy, for the appellants.
Moses Weill, for the respondents.
The affidavit of the testator, made on July 23, 1902, was not evidence to establish that she did not make the will dated June 4, 1902. ( Jackson v. Kniffen, 2 Johns. 31, 35; Waterman v. Whitney, 11 N.Y. 157; Eighmy v. People, 79 id. 546; Marx v. McGlynn, 88 id. 357, 374; Matter of Kennedy, 167 id. 163, 172; Matter of Woodward, Id. 29, 30.) It is quite evident from the opinion that the learned surrogate considered this affidavit as a cogent piece of evidence on that question. The exception was well taken, and the decree must be reversed.
GOODRICH, P.J., BARTLETT, WOODWARD and HOOKER, JJ., concurred.
Decree of the Surrogate's Court of Kings county reversed.