Opinion
June 28, 1938.
Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.
Decree dated July 31, 1937, in so far as it admits to probate the will and first three codicils, affirmed, and in so far as it denies probate to the fourth codicil executed by the testatrix October 5, 1934, reversed on the law and facts, with costs to the proponent-appellant payable out of the estate, and matter remitted to the Surrogate's Court, Monroe county, with direction to admit the fourth codicil to probate. Appeal by contestants Kenneth Dennis, Volney Dennis and Hazel D. Case Ackerman from that part of the decree denying a motion to resettle the surrogate's decision and to provide for costs to such appellants, dismissed, without costs, as academic, by reason of this decision which directs probate of the fourth codicil. Order dated July 27, 1937, in so far as it denies proponent's motion to set aside the verdict as to the fourth codicil and to admit that codicil to probate reversed on the law and facts, and proponent's motion in that regard granted, and otherwise affirmed, without costs. Order dated July 31, 1937, denying motion by contestants Lottie M. Carll, McKinley Ackerman and Marshall Ackerman to correct or supplement the record in certain particulars, affirmed, without costs. Memorandum: Our examination of the record leads us to conclude that the finding of the jury that on October 5, 1934, the testatrix was not possessed of mental ability sufficient to execute the fourth codicil to her last will and testament, was contrary to and against the weight of evidence. All concur. (The decree admits a will and three codicils thereto to probate and denies probate to a fourth codicil, and denies a motion to provide for costs in favor of certain contestants. One order denies motions for a new trial and a motion to set aside the verdict as to the fourth codicil and to admit the same to probate. The other order denies a motion to correct or supplement the record.)