Opinion
June 13, 1949.
Decree of the Surrogate's Court, Suffolk County, denying probate to a propounded instrument, modified on the law and the facts by striking therefrom the final decretal paragraph and by substituting in place thereof a paragraph providing that costs are awarded to the appellant and to the respondent, payable out of the estate. As thus modified, the decree is affirmed, with costs to appellant and to respondent, payable out of the estate. No opinion.
NOLAN, P.J., ADEL and MacCRATE, JJ., concur; Johnston, J., and Sneed, J., dissent and vote to reverse the decree and to admit the instrument to probate as the last will and testament of decedent, with the following memorandum:
The determination that the testatrix lacked testamentary capacity is against the weight of the credible evidence. ( Matter of Beneway, 272 App. Div. 463; Matter of Goeb, 265 App. Div. 865, affd. 290 N.Y. 894.) [See 276 App. Div. 784.]