Opinion
February 27, 1950.
Decree of Surrogate's Court of Dutchess County denying probate to an instrument in writing purporting to be the last will of decedent, entered upon the verdict of a jury, and order denying motion to set aside verdict and for a new trial, reversed upon the law and the facts and new trial ordered, with costs to appellant to abide the event. The answers in the verdict of the jury to the submitted questions are inconsistent and indicate that the jury did not fully understand the purport of the submitted questions. Such an inconsistent result may be avoided upon a new trial, when the jury may be fully instructed upon testamentary capacity sufficient to make a will. ( Matter of Fahrenbach, 261 App. Div. 43, affd. 285 N.Y. 763; Matter of Heaton, 224 N.Y. 22, 29-30; Matter of Delmar, 243 N.Y. 7, 14.) Carswell, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.