In re the Probate of the Will of McChesney 278 A.D. 607

Appeal from a decree of the Surrogate of Albany County admitting to probate the last will and testament of Lilian G. McChesney, deceased. The evidence establishes testamentary capacity at the date of the execution of the will in question, which was, therefore, properly admitted to probate. Decree affirmed, with costs to all parties filing briefs payable out of the estate. Foster, P. J., Deyo, Bergan and Coon, JJ., concur; Heffernan, J., dissents in the following memorandum: I dissent and vote to reverse the decree of the Surrogate of Albany County in admitting to probate the last will and testament of deceased. In my opinion the record and par*608tieularly the exhibits indicate that decedent lacked testamentary capacity. The determination of the Surrogate is overwhelmingly against the weight of the evidence. In the interests of justice we should remit this cause to the Surrogate’s Court for trial before that official and a jury if a jury trial be seasonably demanded by any of the parties.