Opinion
November, 1905.
Decree of Surrogate's Court reversed on the facts, with costs to appellant to abide event of the new trial herein, and the following questions of fact are ordered to be tried by a jury at a Trial Term of the Supreme Court to be held in and for the county of Monroe in the month of January, 1906, viz.: 1. Was the deceased at the time said instrument purports to have been executed, to wit, the 2d day of June, 1903, possessed of sufficient testamentary capacity to make a valid last will and testament? 2. Was the execution of said instrument by said deceased procured by fraud or undue influence practiced upon said Caroline Sullestad? McLennan, P.J., and Nash, J., voted for reversal upon the ground that the decision of the surrogate was against the weight of the evidence; Hiscock, J., voted for reversal on the authority of Matter of Burtis ( 107 App. Div. 51; 94 N.Y. Supp. 961); Spring and Williams, JJ., voted for affirmance.