
    In the Matter of Proving the Alleged Will of Joshua Raplee, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Will—Probate.
    Upon appeal from a "decree of a surrogate’s court, revoking the probate of a will which had been duly admitted to probate upon the ground that the decedent was. incapable of making a will at the time of its execution, it appeared that there was no evidence before the surrogate which, standing alone, was sufficient to defeat the probate. Held, that such failure of evidence raised simply a question of law, and § 2588, therefore, having no application, the original decree must be confirmed.
    2. Same—Incompetency.
    An expression of opinion by a witness that a certain act is irrational, and indicates unsoundness of mind, is no evidence of unsoundness of mind.
    Appeal by George Raplee, one of the executors of the last will of Joshua Raplee, deceased, and by Erastus Raplee and others, infants, by J. E. Parkhurst, special guardian, from a decree of the surrogate of Yates county, dated and entered February 19, 1892, revoking the probate of the last will and testament of Joshua Raplee, .which had been duly admitted to probate October 1, 1888.
    
      J. F. Parkhurst and William S. Briggs, for app’lts;
    
      John Gillette, for resp’ts.
   Macomber, J.

Joshua Raplee, of the town of Barrington, in the county of Yates, died August 31, 1888, leaving a last will, which bears date September 20, 1886. This will was admitted to probate by the surrogate of Yates county on the 1st day of October, 1888, as a will of both real and personal property. Within one year after such probate, namely, on the 16th day of September, 1889, two of the children and next of kin and heirs-at-law of the testator, namely, Celestia Wallington and Jane Arwine, filed a petition with the surrogate praying for revocation of the probate of the will upon the ground that the testator was not, at the time of making and subscribing the will, of sound mind and memory and was incapable of executing the same. Upon the return of citations duly issued to all parties interested in the controversy, much evidence was taken, the result of which was that the surrogate made his decree, which was entered on February 19, 1892, revoking the probate of this will upon the ground stated in the petition, namely, that the decedent was incapable of making a will at the time of the execution of the paper theretofore admitted to probate. From that decree this appeal is taken by one of the executors named in the will, and by sundry of the next of kin of the deceased.

The appeal is taken both upon the law and the facts. But there is no controversy in respect to the formal execution of' the will by the testator, nor of the legality and sufficiency of the provisions therein contained. The only question is, whether the testator was possessed of a disposing mind and memory at the time he executed this will.

Under § 2588 of the Code of Civil Procedure, if we come to a conclusion upon this question of fact contrary to that of the surrogate, the order following our decision would be for a trial by jury of the material questions of fact arising upon the issues between the parties. But this section of the Code does not require us to order such a trial when the evidence, appearing upon the record on the appeal, is insufficient to raise a question of fact within the legal meaning of that term. This matter has been the subject of former judicial inquiry; and the decision of the court of appeals in the Matter of the Will of Hunt, 110 N. Y., 278; 18 St. Rep., 118, is authority for holding that this provision of the statute is not peremptory in case of a reversal of the surrogate upon the question of the testamentary capacity of the testator. The court there say: “ The language in this section requires an order for a jury trial only where the reversal is founded upon a question of fact, and the legislature undoubtedly intended that only where such was actually the case, and there was a real conflict of the evidence, and the surrogate’s court and the supreme court differed on the case, should the conflict be settled by a jury trial in the mode prescribed; but that a new trial before a-jury should be deemed necessary when there is no conflict in facts and the matter is one of the conclusions from the facts, is not a construction reconcilable to reason, and we should refuse our sanction to such a construction.” See, also, the cases cited in that opinion.

If there was no evidence before the surrogate in behalf of the contestants of the will, which, standing alone, was sufficient to defeat the probate of the will, it is our duty, we think, to regard such failure of evidence as raising a question of law, and that, consequently, the decree revoking the probate should be reversed and the original decree admitting the will to probate confirmed. We have looked into the details of the evidence adduced in behalf of the contestants of the will and have made an abstract of them; but even this abstract wrould occupy too much space to be set forth at large. Of the sixteen witnesses who were examined ■ in behalf of the contestants, not one of them gave any facts which had a tendency to prove that the testator had not a disposing mind at the time of making the will; though all, or nearly all of them, after describing the conduct of the testator, at different periods during two or three years preceding his death, testified that such conduct impressed them as being irrational.

But an expression of opinion by a witness that a certain act is irrational and indicates unsoundness of mind, is no evidence of unsoundness of mind. Facts must be given from which it may be judicially determined that the unsoundness of mind exists, before the legal presumption of sanity and of disposing mind can be overcome. There is among all these witnesses a concurrence of statement that the testator was a very vigorous man for his age, and was very active in directions rarely attempted by old men, such as speeding the favorite fast horses which he owned, and in hooking up and driving unbroken colts. He is shown by them to have been at this time a man of strong will, and one who managed his farm unaided, except by hired help. His comprehension of the nature and extent of his property, and his ability to manage it properly, is not seriously brought into question. But it was shown that .he, at times, had epileptic fits, and, after such a seizure he became, for two or three days, weak in mind as well as in body, so that he failed, at such times, to recognize his son-in-law and others. But when he recovered from such attacks bis mind again became clear and strong, and he would resume his usual avocations. The will in question was made by him two weeks after one of these epileptic convulsions, and when no fact or circumstance is shown to exist bringing into doubt his ability to make a will. Without evidence of his want of capacity at that time, or at a time near it, no case can be said to have been made out by the contestants. It is not disputed but that the testator went voluntarily, and at his own suggestion, to the county seat of Tates county, there to have prepared and executed his last will, and that he gave particular instructions in regard to the disposition which he desired to be made of his estate. One of the subscribing witnesses, Mr. Beilis, a lawyer, had previously drawn two wills for the testator, and the changes which were made in the subsequent wills were such that would naturally follow the changed condition of his affairs, and were, in each instance, reasonable, and showed a keen foresight. For instance, in the first will, the testator provided for a legacy to his grandson, Byron Walling. But by the second will he revoked this bequest, for the reason which was assigned by himself, of the • “ careless and reckless manner of living ” of the former object of his bounty. The reasonableness of this change is not even attempted to be disputed in the case before us.

The new provision contained in the will probated, and which constitutes the only difference between it and the second will, is the following provision: “In case of either of the children of Mary E. Baplee, and Olista Ann Baplee shall die before their father, without leaving any issue them surviving, then, in that case, I hereby give and bequeath the portion of said children so dying, as aforesaid, to the brother and sisters of the one so dying, as aforesaid, aiid not to the father, Hiram Eaplee and Erastus Eaplee.” The origin of these changes was with the decedent himself, and not with the scrivener, and that they were reasonable and just, under all the circumstances, can admit of no doubt, for Hiram Eaplee and Erastus Eaplee were insolvent and owed many debts.

We are of the opinion that the evidence adduced in behalf of the petitioners for the revocation of the letters testamentary was insufficient, standing alone, to overcome the evidence of the subscribing witnesses, and the deductions to be made from the undisputed facts relating to the execution of this will. There is, therefore, no question of fact before us, but it is a case of failure of proof, and this, under the decision already cited, renders it unnecessary to order a trial by jury.

It follows that the decree appealed from should be reversed.

Decree of the surrogate of Yates county appealed from reversed, with costs to the appellants, payable by the respondents personally, and the original probate of the will confirmed, with costs payable by petitioners.

Dwight, P. J., and Lewis, J., concur.  