
    In the Matter of the Probate of the Last Will and Testament of Mary E. Donnelly, Deceased. Elizabeth McGowan, Appellant; Lizzi Riede, Respondent.
    Second Department,
    November 18, 1910.
    Will— probate — facts not establishing testamentary incapacity.
    Appeal from a decree admitting a will to probate against the objection that the testatrix lacked testamentary capacity. Evidence examined, and held, that the decree should be affirmed.
    Appeal by Elizabeth McGowan from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 14th day of January, 1910, admitting to‘probate' a paper propounded as the last will and testament of Mary E. Donnelly, deceased.
    
      Thomas J. Farrell, for the appellant.
    
      Philip A. Brennan. [Monte London and Samuel C. Worthen with him on the brief], for the respondent.
   Woodward, J.

The decedent, Mary E. Donnelly, was a widow, aged seventy-two years. Anna Heins, a girl of about fifteen years of age at the time testatrix died, had lived with her for a period of two years, and the contestant’s own witness testifies that the decedent evidenced a motherly fondness for this child. She had no children of her own, and her only next of kin were four married sisters, with families, and no intimacy was shown between any of them, with the possible exception of the appealing contestant, Elizabeth McGowan, who appears to have attended her during her last, sickness for some days, although she left several days before decedent passed on. Two or three days before her death Mrs. Donnelly requested her nurse to call a Mr. Hammer, her landlord, and to ask him to procure some one to make a will for her. - This was done, and Mr. Hammer brought a Mr. Flay, a notary public, who drew the will suggested by Mrs. Donnelly, and the same was duly executed in the presence of the three subscribing witnesses^ giving all of her property to -Anna Heins, who is referred to as an adopted daughter, though it does not appear that there was ever any formal adoption. The sisters of the deceased contested the probate of the will, and one of them brings the case here on appeal.

We fail to discover from the evidence any reason for disagreeing with the conclusion of the learned Surrogate’s Court. It is true that the decedent was ill at the time the will was made, and that she died within a couple of days of the time of executing the will, but sick people — people in contemplation of immediate death — have a ■right to make wills, and there is not a single suspicious thing about this will, not an unnatural thing about it. Lizzi Biede, the executrix, was the janitress of the. apartment where Mrs. Donnelly resided; she was not associated with Mrs. Donnelly, except in their relations as tenant and janitress, and had nothing to. do with Mrs, Donnelly until the appellant went away and left her sister alone with the child, sick, and then the child called in Mrs. Eiede to care for Mrs. Donnelly on the Saturday preceding the Sunday on which the will was made. Mrs. Donnelly asked to have Mr. Hammer get some one to draw a will for her. He did so, and when Mr. Hammer was asked to become executor he declined, and then the notary public asked Mrs. Eiede to act in that capacity, and she consented. There is no suggestion of any collusion between any of these parties; no suggestion that Mr. Hammer or Mr. Flay was not honest, and there is absolutely no evidence that either Mrs. Eiede or Anna Heins ever made any suggestion in reference to the contents of the will, or that any one made any such suggestion. The testimony is that Mrs. Donnelly was asked by the notary public what she wanted to do with her property, and that she replied, “ All to Anna,” and that she made a like reply to Mr. Hammer when he asked a similar question. The child Anna was there in her household, was dependent upon her; Mrs. Donnelly had a motherly affection for her, and what was more natural than that she should provide for her, as against her married sisters with grown-up families, none of whom appear to have taken any special pains to be useful to her. If Mrs. Eiede had - appeared as a beneficiary, or if Mr. Hammer-had thus appeared, it might be said that the facts were such as to require explanation; but here the action was exactly what might have been expected of a kindly old lady in respect to a child who was living in her home, and the witnesses to the will, who have no interest in the same, testify that she appeared to be of sound mind and prepared to dispose of her property.

The decree of the Surrogate’s Court should be affirmed, with costs.

Hirschberg, P. J., Rich and Carr, JJ., concurred; Jenks, J., not voting.

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