Opinion
January Term, 1900.
Judgment and order affirmed, with costs.
The merits of this case have been passed upon by the surrogate of Kings county; have been reviewed by this court ( Matter of Austin, 35 App. Div. 278); have been heard before a jury, and have been ruled upon by the court at Trial Term on the motion for a new trial, and in each instance the conclusion has been in favor of the defendants. We are now asked to reverse the judgment and order appealed from on the ground that the verdict of the jury is against the weight of evidence, and upon the exceptions taken on the trial of the action. We have examined the evidence before the jury and find no reason to disagree with the conclusion reached. There is nothing in the 3d codicil of the will of the late Anna S. Austin, which is the subject-matter of this litigation, inconsistent with the natural impulses of one who has been kindly treated in her declining years by her sisters; the bequests are entirely in harmony with what we might expect under the circumstances which are made to appear from the record. There are no equities superior to those represented by the persons benefited by this codicil, and in the absence of controlling evidence of incapacity on the part of the testatrix, it would be an unwarrantable interference with the estate of the deceased to dispose of it otherwise than as directed by this codicil. This action was brought under the provisions of section 2653a of the Code of Civil Procedure, to determine the validity of the 3d codicil of the will of the late Anna S. Austin, the principal contention of the plaintiffs being that the testatrix was, at the time of the making of this codicil, incapable of disposing of her property; that she was not of sound and disposing mind, and that she was subject to undue influence. There was, as we have already indicated, evidence to warrant the jury in finding that the testatrix was mentally qualified to make this codicil, and that she was not unduly influenced in the matter. If there were no reversible errors on the trial, therefore, it is the duty of this court to affirm the judgment and order appealed from. We have looked with care into the exceptions appearing in the record, and while, technically, some of the rulings may not be sustained, yet from a consideration of the whole case, we reach the conclusion that the plaintiffs were not prejudiced by the rulings of the court in this respect, and that they were immaterial as affecting the result; the exceptions were mainly as to the form of the questions, and when properly asked the answers were admitted without objection. It is difficult to discover any phase of the question which was not before the jury, and the charge of the learned trial court was such that the plaintiffs certainly have no cause to complain. We are of the opinion that the trial court has properly determined the question of costs under all the circumstances of this case, and that the judgment and order appealed from should be affirmed, with costs. All concurred, except Hirschberg, J., taking no part.