Opinion
May 5, 1947.
Decree of the Surrogate's Court, Queens County, entered after a jury trial, denying probate to a paper writing dated August 21, 1945, as the last will and testament of decedent on the grounds that such paper writing was not the will of decedent, but was procured and executed through the exercise of undue influence, and that at the time of the execution thereof decedent was not of sound and disposing mind and memory, competent to dispose of her estate by will, and was not free from restraint, and did not understand the terms and provisions thereof, insofar as appealed from, reversed on the law and the facts, with costs to each appellant, payable out of the estate, and the matter remitted to the Surrogate's Court with directions to enter a decree admitting such paper writing to probate as the last will and testatment of the decedent. Findings of fact, by the jury, in answer to questions numbered 4, 5, 6 and 8, are reversed. In our opinion no proof was adduced sufficient to warrant the submission to the jury of the issues with respect to lack of testamentary capacity, restraint, undue influence, or lack of knowledge or understanding of the terms and provisions of the will, and appellants' motions for a directed verdict on such issues should have been granted. (Cf. Matter of Burnham, 201 App. Div. 621, affd. 234 N.Y. 475; Matter of Gihon, 44 App. Div. 621, affd. 163 N.Y. 595; Cudney v. Cudney, 68 N.Y. 148; Matter of Henderson, 253 App. Div. 140; Matter of Catzke, 269 App. Div. 1054.) Hagarty, Acting P.J., Johnston, Adel, Nolan and Sneed, JJ., concur.