Opinion
November 16, 1938.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Decree affirmed, without costs of this appeal to any party. Memorandum: There was not sufficient evidence to permit a jury to find that testatrix was unduly influenced in the making of her will, and the refusal to submit such question to the jury was proper. A fair preponderance of the evidence showed that the testatrix at the time of her execution of the will was mentally competent to make such will and the verdict of the jury to that effect was consistent with the evidence produced upon the trial. In considering the motion of proponent that the costs be assessed personally against the contestant, the Surrogate's Court found that the contestant acted in good faith. The evidence presented upon the trial and the course of the trial justified such findings. As both appeals are from different portions of the same decree, the decree should be affirmed, without costs. All concur. (The decree admits a will to probate and denies proponent's motion to assess costs personally against the contestant.)