
    In the Matter of Proving the Last Will and Testament of Sarah J. Hassett Choate, Deceased, etc.
    
      Will—probate refused for testamentary incapacity.
    
    Appeal from decree of surrogate'admitting will to probate, and refusing, probate of a certain other instrument
   Patterson, J.:

Margaret <3, Renayne, individually and as executrix (so

styling herself), appeals from a decree of the Surrogate^ Court of the county of Mew York, which refused probate of a document purporting to be the last will and testament of Sarah J. Hassett Choate-,, deceased, executed on March 36,1904, and which admitted to probate a,prior will which Mrs. Choate had executed May 7; 1903. Mrs. Choate was a childless widow, and at the time of her death was sixty-six years old. Two writings, each purporting to be'her will, were presented to the surrogate for probate. The earlier paper was -admitted- and the later one rejected. The issue before the surrogate-was as to the testamentary capacity of the testatrix at the time of the’ execution of the later instrument. The opinion of the surrogate is very satisfactory, based, as it is, upon- a careful review of all the evidence concerning what occurred at the residence of Mrs. Choate on the evening of March 36, 1904, when the rejected instrument was executed. ' Without going over thé evidence in detail, we are convinced, as the -surgate was, that on March 36, 1904, the testatrix was not in a mental condition to understand what was in the paper she signed, or to appreciate her situation and surroundings.. The account given in the testimony of the witnesses of what occurred on-the evening of the execution of the rejected instrument was sufficient to authorize -the- surrogate to refuse probate to that paper. It clearly appears that when it w.as presented to Mrs; Choate on that evening she was,in a dying condition. At her house were assembled persons in .various, ways connected with her, and- their-conduct was so violent that- the sick and dying woman asked that, police interference be had. it appears by the testimony of Mrs. Murray "that the decedent was forcibly awakened out of a stupor; that the, rejected instrument was read to her and she was asked to .sign.it. Her.mind -was in a wandering state, and she made some reference to her deceased mother not being provided-for, and then'fell, asleep. She was again awakened and, after persuasion, induced tó sign the paper, and apparently forgot or did not understand what was being required of her. The learned surrogate properly remarks that on March 36, 1904, when the rejected paper was executed,, it was perfectly apparent that the testatrix did not comprehend her situation, for she did not recall the fact that her mother was' dead,, and she objected to the will because no provision was -made -for her mother. A perusal of the record" satisfies us that on the facts the surrogate’s decision was correct, and the decree should be affirmed, with costs. O’Brien, P. J., Patterson, Ingraham, Clarke and Houghton, JJ., concurred. Decree affirmed, with costs.  