
    In the Matter of the Proof and Probate of the Instrument Propounded as the Last Will and Testament of Francis VAN TINE, Deceased.
    (Supreme Court, Appellate Division, Fourth Department.
    October 18, 1916.)
    Appeal from Surrogate’s Oourt, Cayuga County. In the matter of the proof and probate of the instrument propounded as the last will and testament of Francis Van Tine, deceased. From a decree of the Surrogate’s Oourt against the will, from its order denying proponent’s motion for new trial, and from an order of the Supreme Court, on trial of the issues sent therein by the Surrogate’s Oourt, denying motion for new trial, Jason R. Swift, proponent and as executor, appeals. Decrees and orders denying motion for new trial reversed, and new trial granted.
   PER CURIAM.

The jury found by their answers to the questions submitted to them that at the time of the making of the alleged will the testator was of sound mind and capable of making the same, but that he never executed it, and also that the execution was obtained by undue influence. Assuming that these findings may be reconciled, we are of the opinion that the finding that the testator did not execute the will and that the execution was obtained by undue influence is each against the weight of the evidence, and that the verdict of the jury should have been set aside upon that ground. Decree and orders denying motion for new trial reversed, and new trial granted, with costs to the appellant to abide the event.  