
    In the Matter of the Estate of Josephine Cottone, Also Known as Giuseppina Cottone, Deceased. Benjamin Cottone, Appellant; Dorothy Fernandez, Respondent.
   In a probate proceeding, petitioner appeals from a decree of the Surrogate’s Court, Suffolk County, entered August 5, 1974, which, after a jury trial, denied probate to a purported will on the grounds that the testatrix lacked testamentary capacity and that, at the time of the execution of the purported will, she was under the constraint of undue influence. Decree reversed, on the law and the facts, with costs to petitioner payable out of the estate and proceeding remanded to the Surrogate’s Court, on the law, with directions to admit the propounded instrument to probate and for further proceedings. The special verdict to the effect that testatrix lacked testamentary capacity is without foundation in the record. The evidence reveals that the testatrix was a woman who, despite her age, jealously guarded her independence, managed her own household and maintained her own circle of friends. This evidence establishes the level of mental capacity which the law requires (see Marx v McGlynn, 88 NY 357, 370; Matter of Hollenbeck, 65 Misc 2d 796, 799, affd 37 AD2d 922). The evidence presented by the contestant on the issue of undue influence was insufficient (see Matter of Walther, 6 NY2d 49). Gulotta, P. J., Rabin, Hopkins and Margett, JJ., concur; Latham, J., dissents and votes to affirm the decree.  