Opinion
November 5, 1951.
In a contested probate proceeding, there are directed findings by a jury that the deceased possessed testamentary capacity; that the propounded instrument was executed in due form; and that the instrument was not caused or procured by fraud. The decree denies probate to the instrument offered, on the ground that its execution was caused or procured by undue influence exerted upon the decedent by the appellant, in accordance with the finding of the jury. The deceased's son, appellant, is an attorney at law and he conveyed the data for the preparation of the instrument to another attorney who prepared it. The instrument bequeaths the estate in equal shares to the appellant and another son, and excludes the deceased's daughter, contestant-respondent. Decree of the Surrogate's Court, Kings County, denying probate to the instrument as a last will and testament, reversed on the law and the facts and the matter remitted to the Surrogate's Court to enter a decree admitting the instrument to probate as prayed for in the petition, with costs to appellant, payable out of the estate. In view of the findings of testamentary capacity, due execution, and absence of fraud, together with the evidence by both parties as to the soundness of mind of the deceased, no presumption of undue influence arises from the facts that the attorney-son assisted in the drafting of the instrument and that it excludes a child of the deceased. Under the circumstances, it was essential that undue influence be proved and not presumed. There is no proof, direct or circumstantial, to sustain the finding of the jury that the execution of the paper offered for probate was caused by the undue influence of the proponent. Johnston, Acting P.J., Adel and MacCrate, JJ., concur; Sneed and Wenzel, JJ., dissent and vote to affirm.