
    Fourth Department,
    June, 1939
    (June 28, 1939)
    In the Matter of the Probate of the Last Will and Testament of John G. Ingamells, Deceased.
   Decree and order reversed on the law and facts, with costs payable out of the estate, and matter remitted to the Surrogate’s Court of Oswego county with directions to enter a decree admitting the will to probate. Memorandum: We find no evidence which justifies the jury’s finding that the testator was not of sound mind and memory and mentally capable of making a will at the time of his execution of the instrument offered for probate, or that his execution thereof was not his free and voluntary act. The burden of proving undue influence was upon the contestants (Matter of Schillinger, 258 N. Y. 186, 192) who failed to make proof of influence exerted upon the testator by Blanche Ingamells Baker at the time the propounded instrument was executed, which was so potent as to take away and overcome the testator’s power at that time to act freely and upon Ms own volition. (Smith v. Keller, 205 N. Y. 39, 44.) All concur. (The decree denies probate of a will. The order denies motions to set aside the verdict.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.  