Opinion
October 24, 1949.
In a proceeding for probate of a paper writing as the last will and testament of Thomas G. Fogarty, deceased, the appellants, by answer, alleged that the instrument propounded was not the last will and testament of the decedent; that there was lack of due and proper execution; that it was procured through fraud and undue influence; that the decedent on the date of alleged execution was not of sound mind nor mentally capable of making a will; and that he did not know or understand the terms and provisions thereof. An order was made directing the trial by jury of the issues, in the form of ten questions. At the conclusion of contestants' case the Surrogate granted respondent Brennan's motion to dismiss the objections, directed a verdict as to each of the framed issues, and admitted the paper writing to probate. The contestants have appealed from the decree, and pending the appeal the contestant Mary Burns died. The attorneys for the surviving appellants, and for respondent Brennan, having consented, the proceeding insofar as the appellant Mary Burns is concerned, is severed. On appeal by the surviving appellants, decree of the Surrogate's Court, Queens County, admitting the paper writing to probate, reversed on the law and a new trial ordered, with costs to abide the event. Although the verdict was properly directed upon the issues as to which appellants have the burden of proof, other issues, upon which the burden was imposed upon respondent Brennan, depended for their determination upon the testimony of the subscribing witnesses to the will. The testimony of these witnesses was positive and not directly contradicted. They were, nevertheless, interested in the probate of the will to such extent as to require their credibility to be submitted to the jury. ( Matter of Kindberg, 207 N.Y. 220; Van Gaasbeek v. Staples, 85 App. Div. 271, affd. 177 N.Y. 524; Matter of Perkett, 192 App. Div. 846.) Although the direction of a verdict was erroneous only as to such issues, all of the issues must be retried. ( Matter of Gallo, 252 App. Div. 861; Matter of Lawler, 257 App. Div. 1098.) Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ., concur.