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MATTER OF KAUFMANN

20 A.D.2d 464 (1964)

In the Matter of the Probate of The Will of Robert D. Kaufmann, Deceased. Walter A. Weiss, Appellant; Joel S. Kaufmann et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

March 19, 1964.

Attorney(s) appearing for the Case

Milton Pollack of counsel (Irving K. Rubin with him on the brief), for appellant.

Milton Levy of counsel (John W. Castles, 3d, and Leonard S. Leaman with him on the brief; Lord, Day & Lord, attorneys), for Joel S. Kaufmann and another, respondents.

Leon Herzfeld, special guardian, in person, for Richard Kaufmann and another, infants, respondents.

BREITEL, J. P., and RABIN, J., concur with McNALLY, J.; WITMER, J., dissents and votes to reverse, in opinion, in which STEVENS, J., concurs.

McNALLY, J.

This will contest is limited to the issue of undue influence. The contestants are the distributees of, and the proponent is unrelated to, the decedent. Two juries have found undue influence. On the prior appeal, by a divided court, the decree denying probate was reversed and a new trial directed because of error (14 A.D.2d 411). Appellant argues the proof in its totality fails to establish a jury question...

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