
    Lydia P. Valentine, App’lt, v. James E. Valentine, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    Practice—Jury trial must be awarded .upon the reversal in a probate case—Code Ciy. Pro., § 2588.
    The general term must order a jury trial where it reverses the decree of the surrogate in matters of probate. It has no other power under Code Civil Procedure, § 2588.
    
      Benjamin W. Downing and John J. Armstrong, for app’lt; John B. Reid, for resp’t.
   Dykeman, J.

This is an appeal from a decree of the surrogate of Queens county, refusing his approbation to a codicil of the last will and testament of William M. Valentine, deceased. The opposition to the codicil rested on the .alleged incapacity of the testator, resulting from a severe injury to his head. On the night of the 22d day of March, 1882, he was assaulted by two colored men and received a severe blow from some blunt instrument just above and back of his ear, which fractured and depressed his skull, and rendered him unconscious for six weeks, down to about the tenth day of May following. The codicil in question was executed on the second day of June. The testimony on the part of the proponents is full and satisfactory that the testator had obtained full control of his mind, and was in the full possession of his faculties as early as the middle of May. The testimony on the part of the contestant consisted principally of the thoughts, opinions and impressions of unprofessional witnesses respecting the mental condition of the deceased; some of the testimony of lay witnesses, respecting their opinion, was erroneously admitted over the objection and exception of the proponents, and the errors so committed are alone sufficient to call for a reversal of the decree. Even if it be assumed that the strong, vigorous and independent mind of the testator was weakened by the physical injuries he sustained, yet it is plain that he had sufficient testamentary capacity to make and execute the codicil at the time of its execution, and we would direct its admission to probate if we could make that disposition of the appeal. But under the provisions of section 2588 it seems to become necessary to direct the trial of the issue of fact arising between the parties before a jury.

The decree appealed from should, therefore, be reversed, and a trial of the question of fact involved should be had in the supreme court, at the circuit in Queens county, with costs to abide the event, subject to the further order of the court, respecting the source, from which'they are to be paid. Barnard, P. J., concurs; Cullen, J., "dissents.  