Julius B. Sucher, Benjamin Heller, Joseph T. Arenson, New York City, on the brief, for appellant-contestant.
Gross & Keck, Brooklyn, for respondent-proponent Frederick Keck.
Jacob K. Javits, Atty. Gen., by Daniel M. Cohen, New York City, for respondent.
Before NOLAN, P. J., and MacCRATE, SCHMIDT, BELDOCK, and WENZEL, JJ.
MEMORANDUM BY THE COURT.
In a contested probate proceeding, the contestants appeal from so much of a decree of the Surrogate's Court, Queens County, as admits decedent's will to probate, after trial before a jury on framed issues relating to testamentary capacity, fraud and undue influence.
Decree, insofar as appealed from, reversed on the law and the facts and new trial ordered, with costs to appellants to abide the event; the new trial to be limited, however, to the issue of testamentary capacity.
In our opinion the jury's nonunanimous finding of testamentary capacity is contrary to the weight of the evidence.
It is also our opinion that it was error for the Surrogate in his charge to instruct the jury with respect to the widow's right of election.
[141 N.Y.S.2d 850] MacCRATE, SCHMIDT and BELDOCK, JJ., concur.
WENZEL, J., concurs for reversal and a new trial of the issue of testamentary capacity on the grounds stated by the majority and votes also for a new trial of the issues of fraud and undue influence, with the following memorandum:
In my opinion, substantially the same proof which was offered on that issue was also offered upon the issues of fraud and undue influence. The jury's negative findings upon the latter two issues are likewise contrary to the weight of the credible testimony and contrary to the documentary evidence. Hence, the proof in this record cannot properly be said to be insufficient on the theory that it is 'equally consistent with the absence as with the existence' of the wrongful acts claimed, as in the two cases cited in the dissenting memorandum of the Presiding Justice, Ruppert v. Brooklyn Heights R. Co., 157 N.Y. 90, 93-94, 47 N.E. 971, 972; Shotwell v. Dixon, 163 N.Y. 43, 52, 57 N.E. 178, 181. See also, Matter of Fleischmann's Will, 176 A.D. 785, 786-787, 163 N.Y.S. 426, 427, 428; Matter of Ruef, 180 A.D. 203, 167 N.Y.S. 498, affirmed 223 N.Y. 582, 119 N.E. 1075.
The question of the decedent's mental condition was a factor in the determination of the jury not only as to the testamentary capacity but also on the questions of fraud and undue influence. A testator whose memory and mental processes are unimpaired would not be as readily influenced as one who, according to the proof, was mentally ill and suffering from aberrations and delusions, Rollwagen v. Rollwagen, 63 N.Y. 504, 519; Matter of Anna's Estate, 248 N.Y. 421, 424, 162 N.E. 473, 474; Matter of Streb's Will,
247 A.D. 556, 558, 288 N.Y.S. ...