Opinion
December 23, 1936.
Present — Sears, P.J., Edgcomb, Thompson, Crosby and Lewis, JJ.
Decree reversed on the law, with costs, and matter remitted to the Surrogate's Court with directions to admit the will to probate. Memorandum: The jury having found, on sufficient evidence, that the testator was of sound mind, we find no evidence, of substance, that undue influence was practiced upon him. It is not enough that the will is not as his heirs would have liked it, or is not such as a jury or court might think just. It is true that direct proof of undue influence is difficult to obtain and is not required; but here we are unable to find, in the record, proof or circumstances from which an inference can be drawn that undue influence was used. The will should, therefore, be admitted to probate. ( Matter of Burnham, 234 N.Y. 475.) All concur. (The decree denies probate of a will.)