Opinion
December 8, 1947.
Appeal from Surrogate's Court, Queens County.
Present — Hagarty, Acting P.J., Carswell, Johnston, Adel and Sneed, JJ.
Decree modified on the law and the facts by striking therefrom the provisions with respect of the jury's verdict, the dismissal of the petition, and denial of probate to the propounded script, and by inserting in place thereof a provision admitting the will to probate. As thus modified, the decree is unanimously affirmed, with costs, payable out of the estate, to all parties filing briefs, and the matter is remitted to the Surrogate's Court for the entry of a decree accordingly. No evidence of undue influence was adduced that warranted a submission to the jury on that issue. The interest of the draftsman of the script was contingent and too remote to present a jury question under the proof herein. ( Matter of Smith, 95 N.Y. 516, 523; Matter of Connor, 230 App. Div. 163; Haughian v. Conlan, 86 App. Div. 290; Matter of Wharton, 270 App. Div. 670.)