
    Matter of the Probate of the Last Will and Testament of Michael E. Feeney, Deceased.
    (Surrogate’s Court, Kings County,
    June, 1907.)
    Wills — Disposal by will — Testamentary capacity — General principles and degrees of aberration — Drunkenness.
    Upon the question of the competency of a testator, where the objection thereto is based upon his use of intoxicating liquors, in order to warrant a refusal to probate the will it must appear that at the time of making it the testator was so much under the influence of the intoxicant as to be unable to bring to its execution the calm judgment which the law requires; and, where the will is shown to have been drafted and executed under the direction of a reputable attorney, who explains in minute detail the character of the testator and the nature of the instructions given, in all of which he is corroborated by "other witnesses, the will should be admitted to probate.
    Proceeding upon the probate of a will.
    Theodore Burgmyer, for proponent.
    Leroy W. Boss, special guardian.
   Church, S.

The evidence in this case shows that the testator had for many years been addicted to the use of intoxicating liquors and that, at the time of the making of this will, he was in had physical shape. This evidence, standing alone, would call for a very close scrutiny of the circumstances attending the execution of the will.

It is a well established principle that, where the alleged incompetency results from the use of intoxicants rather than from any mental infirmity, it is necessary, in order to warrant a refusal of probate to a will, to establish that, at the time of the making of such will, the testator was so much under the influence of the intoxicant „ as to be unable to bring to its execution the calm judgment which the law requires. This fact has not only not been shown, but, on the contrary, the will has been shown to have been drafted and executed tinder the direction of an attorney of this court who has for many years borne an excellent reputation. He explains in minute detail the character of the testator and the nature of the instructions given, in all of which he is corroborated by other witnesses, and his evidence appeals to me as entirely truthful and natural. Under these circumstances, therefore, the will should be admitted to probate.

Probate decreed.  