Opinion
December 29, 1942.
Contested probate of will. Objections were tried in Supreme Court under an order of the Surrogate of St. Lawrence county, which framed the following issues: "1. Was the alleged will duly executed by Joseph D. Rotundo, deceased. 2. Did he publish the same as his will in the presence of witnesses, whose names are subscribed thereto and did he request the two witnesses to be witnesses thereto. 3. Did the witnesses sign as witnesses in his presence and in the presence of others. 4. On November 22, 1939, was the decedent Joseph D. Rotundo of sound mind and memory and mentally capable of making a will. 5. Was the paper writing freely and voluntarily made and executed by the said Joseph D. Rotundo as his last Will and Testament. 6. Was the paper writing purporting to be his will, obtained and the subscription and publication thereof procured as it was in fact subscribed and published by him, through mistake and undue influence practiced upon the deceased." Contestants consented to a directed verdict that testator had mental capacity at the time the will was executed (Question 4). The court submitted two questions to the jury — (1) was the paper writing freely and voluntarily executed by the said Joseph D. Rotundo as his last will and testament, (2) was the paper purporting to be his will obtained and the signing and publication thereof procured through mistake and undue influence practiced upon the deceased Mr. Rotundo? There were no objections taken to the charge, and no requests made. The jury answered "yes" to the first question and "no" to the second. The weight of evidence sustains the verdict. Questions propounded and answers made concerning testator's mental capacity were not technically correct in all instances. However, it was harmless error, as the question of mental capacity was withdrawn by the consent of contestants. The decree should be modified by making costs to proponents payable from the funds of the estate and not by the contestants personally. Decree modified so that the portion of the last paragraph following the words "Letters testamentary thereon be forthwith issued by this court" shall read as follows: "That costs and disbursements be and they hereby are allowed in the sum of $818.04 in favor of the proponents, such sum to be paid from the funds of the estate." The modification is made upon law and facts. The decree as so modified is affirmed with costs and disbursements to the proponents-respondents payable from the estate. Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ., concur.