
    In the Matter of Proving the Last Will and Testament of Emma Moore, Deceased. Ruth I. Moore, Appellant; Walter Moore and Lester Moore, Respondents.
   In a proceeding to probate a will of the decedent, petitioner appeals from a decree denying probate, entered on a jury verdict. Decree reversed on the law, without costs, and matter remitted to the Surrogate’s Court, Nassau county, with directions that a decree be entered admitting the will to probate. The case was submitted to the jury on an erroneous theory, since here fraud warranting denial of probate must relate to the factum of the will (Matter of Hermann, 178 App. Div. 182, 190; affd., 222 N. Y. 564) and the fraud claimed related to petitioner’s dealings with two joint bank accounts in the names of herself and her mother, the decedent, during a period long anterior to the preparation and execution of the will. Petitioner did not except to any part of the charge as given and made no requests to charge, and the charge became the law of the case, binding on the parties and on the courts. However, on the theory on Which the case was submitted, there is no evidence to support the verdict. It was not shown that petitioner did anything fraudulent, or anything she did not have a legal right to do as a joint owner of the accounts, or which was contrary to the understanding and wishes of the decedent, who was alive while the acts now complained of were done. Nor was it shown that petitioner deceived or misled decedent as to the nature or extent of the latter’s estate. Decedent had a perfect right to deposit her money in the joint accounts during her lifetime without taking her two sons, the present contestants, into consideration. The petitioner, as matter of law, was entitled to have the will admitted to probate. Hagarty, Carswell, Johnston Adel and Taylor, JJ., concur.  