
    In the Matter of Proving the Last Will and Testament of Abigail Brower, Deceased. Almira Comfort and Others, Appellants; James Seaman Brower and Washington Brower, Executors, etc., of Abigail Brower, Deceased, Respondents.
    Second Department,
    April 20, 1906.
    Wills— evidence warranting a finding of testamentary capacity.
    The fact that a testatrix is ninéty-six years of age raises n,o presumption against her testamentary capacity. When it is shown that four months before the death" of such testatrix, in the presence of her physician and attorney, she, unaided, instructed the latter as to her will and discussed the bearing of her advanced age upon her testamentary capacity, .and, after the execution of the will, stated sound reasons for. cutting off a relative, a finding of' testamentary capacity is warranted. Lack of testamentary capacity is not shown by the fact that subsequent to the making of the will the testatrix, in accounting with her agent, was listless and indifferent, and did not seem to grasp accounts as before, or because- a physician who visited her when ill considered her mehtal condition weak.
    
      Although it is error to exclude a question addressed to' the.testatrix’s agent as tó whether her acts had impressed him as rational or irrational, it is not reversible error when the acts have been fully described so that the court at most has only been deprived of the opinion of a lay witness based on facts which were themselves before the court.
    Appeal by Almira Comfort and others, from a decree of the. Surrogate’s Court of‘the county of Nassau, entered in said Surrogate’s Court on the 31st day of May, 1905, admitting to probate the will of Abigail Browep after a contest over her testamentary capacity.
    
      Edwin T. Taliaferro [George W. Schoonmaker and Charles R. Weeks with him on the brief], for the appellants.
    
      Charles H. Street [Leander B. Faber with him on the brief], for the respondents.
   Jenks, J.:

I think that the decree was right. The testator was a 'woman aged ninety-six, but these years in themselves raise no presumption against her capacity. (Horn v. Pullman, 72 N. Y. 269.) Four months before her death, at a meeting where only she, her regular physician and an attorney who had but little previous acquaintance with her, were present, she, unaided, instructed the attorney as to the will, and was even acute enough to discuss the bearing of -her advanced age upon her testamentary capacity. The will was duly executed before these gentlemen as attesting witnesses. It was a simple document, entirely natural in its benefactions. These two witnesses, together with a clergyman and an intimate woman friend, are clear in their testimony as to sanity and mental capacity. The opportunities of the woman friend especially to observe, the mental powei-s of the testator were frequent, for she was a constant visitor. We find that some months after the execution of the will the testator stated to her sound, not fanciful, reasons why she had cut off a relative, and shrewd reasons why she did not make deposits in a certain bank. None of these witnesses is benefited by the will. The contestants called three witnesses. One is a reputable lawyer, who had acted as agent for the testator in the collection of her rents, and who saw her for monthly accountings from January 22, 1904, until July 22,. 1904. He testifies that within a few months — perhaps five, perhaps less than three—before her death he still continued to go over the accounts with her or in her presence, but not with her alone, and that in this later period she did not seem to grasp them as before; that she said Very little with reference to them. The witness .had regarded her as the brightest woman of her yearé that he had ever- known. Her physician testifies that death came from the general breaking up of old age, but that the.testator had not reached the-Stage of mental senility before she died. Proof that, after a long period of presumably satisfactory monthly accountings the testatoi* was listless, indifferent, comparatively silent,, or did not seem to grasp the accounts as before, is not to my mind cogent on the question of mental capacity to make a will at a near but earlier time. Mere physical debility might render one listless or indifferent in the matter of .an account of rentals by a trusted agent, or in a like business routine, who nevertheless could and would rouse himself to the final important matter of testamentary disposition. The second witness for the. contestants was a physician who had attended the testator frequently while she lived in this borough, but not after 1901. He conversed with her as his patient only-.' He testified that he found her weak, aged and infirm and generally ill abed; that her mental condition was very weak and her memory -poor, and that he thought she was. incapable of transacting business and that it would be pretty hard work for her to remember the names. of five or any number of her relatives.” ■ I comment that physical illness may go far to affect temporarily the mind; that this witness gained no knowledge of .her business ability beyond, his mere professional visits as a physician; that the witness Miller testifies that three years after and within a few weeks of death the testator expressed regret‘that she had not gone to live in the- coun--*■ ■try earlier as her health was much improved, and at that time she-was up-and about, walking in to'the dinner table, conversing on general topics, explaining the cutting off of a relative in her will and giving shrewd reasons for the non-deposit of her moneys.. Moreover, the lawyer, who acted as her agént only knew the testator after this physician had ceased to see her, and for' several years had monthly accountings with her thereafter in which- she showed such ; capacity and understanding as to prompt him to. pay the tribute that I have mentioned. And finally, she certainly in her instructions to her lawyer named not five, but many more relatives with discrimination as to her bounty to them.' The testimony of the third witness for the contestants deals only with certain indorsements. • It is uncertain, vague and unsatisfactory, and at ..most" unimportant.

The learned surrogate erred in excluding the question addressed to the agent as to whether the acts of the testator, which he had remembered and testified to, impressed him as rational or irrational. (De Witt v. Barly, 17 N. Y. 340 ; Wyse v. Wyse, 155, id. 371.) But the acts were capable of description and had been fully described, and so the court was at most only deprived of the opinion of a lay witness based upon facts which were themselves before the court. In view of the rule that obtains upon review of the Surrogate’s Court (Code Civ. Proc. § 2545 ; Matter of Seagrist, 1 App. Div. 615; affd., 153 N. Y. 682), and of the evidence for the proponents, I think that the ruling was not reversible error. The decree is affirmed, with costs.

Hirschberg, P. J., Woodward, Hooker and Miller, JJ., concurred.

Decree of the Surrogate’s Court" of Nassau county affirmed, with costs.  