
    In the Matter of the Estate of Douglas E. McCann, Sr., Deceased. Douglas E. McCann, Jr., et al., Appellants; Dixon Allo, as Executor of Douglas E. McCann, Sr., Deceased, Respondent.
   In a probate proceeding, the contestants appeal on the law and the facts from a decree of the Surrogate’s Court, Nassau County, entered May 23, 1962 on the verdict of a jury upon framed issues, which inter alla admitted the propounded instrument to probate as decedent’s will and revoked letters of administration previously issued. Decree reversed on the law and the facts, with costs to the contestants payable out of the estate; contestants’ motion to set aside the jury’s verdict and to deny probate to the propounded instrument granted; verdict set aside, petition dismissed, probate denied and letters of administration reinstated as matter of law; and proceeding remitted to the Surrogate’s Court for the entry of a decree accordingly. In our opinion, the evidence is insufficient to support the jury’s findings, and thus is equivalent to no evidence (Matter of Case, 214 N. Y. 199, 203). On the basis of all the proof adduced, this court finds as a matter of law that the propounded instrument is not a valid will because of the failure of due execution, the lack of testamentary capacity, and the constructive fraud and undue influence exercised upon the decedent; hence, the motion to set aside the jury’s verdict and to deny probate may properly be granted by this court (Surrogate’s Ct. Act, §§ 69, 309; cf. Matter of Ward, 10 A D 2d 309, affd. 9 N Y 2d 949; Matter of Wells, 248 App. Div. 191, affd. 272 N. Y. 667). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.  