Opinion
April 3, 1969
Appeal from the Erie Surrogate's Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Moule and Bastow, JJ.
Decree and order insofar as appealed from unanimously reversed on the law and facts and a new trial granted on the question of whether the will was the product of fraud or undue influence, with costs to abide the event. Memorandum: There was no evidence of fraud and the evidence as to undue influence was circumstantial and not substantial enough to sustain the jury's finding. We believe, however, that under the circumstances contestants should be given an opportunity to retry the issue of fraud and undue influence.