
    
      In re Wilmurt’s Will.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    Wills—Probate—Evidence.
    Where probate is resisted on the ground of mental incapacity of testator, and • proponents offer clear and satisfactory evidence that testator was in full possession of his mental faculties when the will was executed, and was under no restraining influence, the will should be admitted to probate.
    Appeal from surrogate’s court, Kings county.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Tuttle, Goodell,& Brocks, for appellant. Albert G. McDonald and C. & T. Derry, for respondents.
   Dykman, J.

This is an appeal from a decree of the surrogate of Kings county admitting to probate the last will and testament of John J. Wilmurt, deceased. There was no question respecting the due and proper execution of the will, and the proof shows a compliance with all formalities required by the statute. The contest proceeded upon the theory of mental incapacity, and the testimony introduced by the contestants was directed chiefly to that subject, but it was so slight as to command no respect. In fact, with the exception of the physician, no witness for the contestants furnished any evidence of even mental weakness, and what the physician said was in answer to hypothetical questions only, and was entitled to little or no consideration in the case. The testimony introduced by the proponents was clear and satisfactory, and showed the decedent in the full possession of his mental faculties at the time of the execution of his will, and entirely free from all restraining influences. The controversy over the will was entirely without foundation or justification, qnd we find no error in the exclusion of evidence by the surrogate. The decree should be affirmed, with costs.  