
    In the Matter of Proving the Alleged to be Last Will and Testament of Louise Beauchamp Hughes, Deceased, as a Will of Real and Personal Property. Maria S. Hewes and Others, Appellants; David Michael Grassi, Respondent.
    
      Will — menial capacity of testatrix — trial by jury.
    
    Appeal from a decree of the Surrogate’s Court of New York county, entered on the 5th day of October, 1909, admitting to probate the alleged will of Louise Beauchamp Hughes, deceased. .
   Scott, J.:

While we fully realize that the evidence is of such a character that intelligent men may well differ as to the mental capacity of the testatrix at the time she signed the paper propounded as her last will and testament, we are of opinion that the case is one which should be remitted to a trial by jury under section 2588 of the Code of Civil Procedure. Having arrived at this conclusion, it would serve no useful purpose to review at length the evidence relied upon by either side, or to express our own views as to the effect of that evidence, further than to say that we are not entirely satisfied, upon the whole case, with the result at which the surrogate has arrived., We adopt this course rather than that of relegating the contestants to their action under section 2658a of the Code of Civil Procedure for two reasons: Mrst, because an affirmance of the decree would establish prima facie the validity of the contested will; and, secondly, because the decree contains an adjudication that the will, if valid, constitutes an effective exercise of the power of appointment given to the testatrix by the will of her deceased husband. With this view we are not now prepared to agree, and while we do not pass upon the question definitively at this time, because, if the testatrix should be found to have been incompetent, the question will never arise, yet we prefer to so deal with the decree that it cannot be argued, even by inference, that we intended to leave that question as it was decided by the surrogate. For this reason we have concluded to reverse the decree appealed from and direct a trial by jury of the material questions of fact arising upon the issues between the parties, with costs to the contestants in this court and the Surrogate’s Court, to be paid out of the estate. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Decree reversed and trial by jury ordered, costs to contestants in this court and in the Surrogate’s Court to be paid out of the estate. Settle order on notice.  