Opinion
March 4, 1927.
Appeal from Surrogate's Court of the County of New York.
John F. O'Neil, for the appellants.
David Paine of counsel [ Lyndon Arnold with him on the brief; White Case, attorneys], for the respondent.
Present — DOWLING, P.J., MERRELL, FINCH, McAVOY and PROSKAUER, JJ.
We are of the opinion that the surrogate erroneously refused to receive in evidence upon the trial documentary proof offered by the contestants. These documents were proven to be in the handwriting of the decedent, and the surrogate erroneously refused to receive such of the documents as were not shown to have been written by the decedent within one or two years of the date of the will. The evidence upon the trial before the surrogate would have amply justified the jury in finding that the decedent, at the time he executed the proposed will, was of unsound mind and incapable of executing a valid will disposing of real and personal property. We are of the opinion, therefore, that the surrogate erred in directing the jury to return a verdict in favor of the proponent that at the time of the execution of the proposed will the decedent was of sound mind and competent to dispose of his estate by will.
The decree should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event, payable out of the estate, and the proceedings remitted to the Surrogate's Court for further action in accordance with this opinion.
Decree reversed and a new trial ordered, with costs to the appellants to abide the event, payable out of the estate, and proceeding remitted to the Surrogate's Court for further action in accordance with opinion.