Opinion
November 18, 1963
In a contested probate proceeding, the contestant, the testator's widow, appeals from a decree of the Surrogate's Court, Queens County, entered June 28, 1961 after trial, upon a jury's verdict directed by the court in proponent's favor on all the framed issues, which inter alia admitted the will to probate. The contestant, by her brief, has limited the issues on this appeal to testamentary capacity only; the proponent-executrix has not appeared. Decree reversed on the law and the facts, with costs to the contestant payable out of the estate; and new trial ordered limited to the issue of testator's testamentary capacity. Pursuant to statute (Surrogate's Ct. Act, § 309), this court directs the entry and recording of the jury's verdict upon such issues as have not been ordered retried. On this record, we believe that a question of fact was presented as to the issue of testamentary capacity. Hence, as to such issue the verdict should not have been directed by the court; that issue should have been submitted to the jury. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.