
    John Crolius and William Crolius vs. Sarah Stark and others.
    Where, upon the probate of a will, before the surrogate, there was much contradiction in the testimony of the lay witnesses, and in many cases a coloring was given to their testimony, which clearly showed a bias in their minds, whether produced by feeling or interest; Held, on appeal, that if the case rested solely on that evidence, the Supreme Court would hesitate about interfering with the decision, inasmuch as the surrogate had the witnesses before him, and had a better opportunity of deciding as to the credit they were entitled to, than the appellate court.
    On application to the surrogate for probate of a will and codicils, the testimony of both witnesses to the last codicil, one of whom had been witness to the first, also, was unqualifiedly in favor of the mental capacity of the testatrix. The testimony of her physician was decided, against her competency to make a will, and the surrogate was controlled by it in refusing probate to"the codicil. The physician spoke of her intellect being enfeebled, and of her inability to comprehend the claims on her bounty, and the provisions of the codicil, and that there was some failure of memory, caused by a paralysis of the muscles of the throat; and stated that his opinion was formed from her condition, and not from conversations with her; that although, at first, he had many opportunities of forming such opinion, latterly his interviews with her were not oftener than once a month, if as often. Held that these opportunities of judging of mental capacity did not seem to be sufficient to warrant the rejection of the testimony of all those who were about the testatrix daily; whose intercourse was frequent; who had conversations with her, on many occasions; who saw business transacted by her; and who were the witnesses to the second codicil.
    
      Held, also, that these, and other matters appearing in the testimony, raised a doubt as to the validity of the second codicil; and that it was a proper case for taking the finding of a jury upon the questions raised by the testimony. That the decision of the surrogate, in refusing probate, should not be sustained, but that the questions should be sent down to the circuit, for trial.
    Neither age, nor weakness of intellect, are sufficient to incapacitate a person to make a will. It must be an entire loss of intellect, so that the testator was unable to understand what he was doing, or the contents of the paper, when read to him.
    APPEAL from the decree of the surrogate of the county of New York, granting probate of the first codicil, and refusing probate of the second codicil to the will of Sarah Grray, deceased.
    The appellants are as follows: John Crolius, executor of the deceased, appointed by her will, and also by the second codicil, of which probate was refused by the surrogate; and William Crolius, one of her heirs and next of kin.
    The respondents are: Sarah Stark, appointed executor by the will of the deceased, but whose appointment is revoked by the second codicil; William de la Montagnie, Edward Crolius, Sarah Beach, Carrie Brest, Anna Maria Potter and Frank Potter, the remainder of her heirs and next of kin.
    The testatrix, Sarah Grray, died on the 21st of October, 1871, in the city of New York, possessed of personal property and of an interest in real estate within the county.
    She left a will, dated the 7th of December, 1869, The appellant John Crolius, and the respondent Sarah Stark, were thereby appointed executrix and executor. There was no contest as to the validity of this document. The only point on which its effect was drawn into question was as to the appointment of the respondent Sarah Stark, as executrix-^which appointment is revoked by the second codicil; of which codicil the surrogate refused probate. On the 29th of January, 1870, the testatrix made a codicil to her will devising a supposed interest in real estate to the respondent Sarah Stark. This document was subsequently revoked by the testatrix, as appears below.
    On the 24th of February, 1872, the testatrix, made a second codicil to her will; altering the disposition of such real estate, revoking the appointment of the respondent Sarah Stark, as executrix, and also revoking all prior wills and codicils. And, on the same occasion, she also specially revoked her first codicil, by tearing and destroying it with that intent in the presence of two witnesses, whose memorandum to that effect is endorsed thereon, pursuant to the statuie. Shortly after the death of the testatrix, the will and the second codicil were propounded for probate by the appellant John Crolius, and all the above named respondents, excepting the respondent Sarah Stark, were cited in due course, as heirs and next of kin of the testatrix. On the return of the citation, the respondent Annie M. Potter appeared to contest the validity of all the testamentary papers propounded. But her opposition was afterwards tacitly withdrawn. A guardian ad litem was appointed for Frank Potter, another respondent, who was an infant. And the respondent Sarah Stark, though not cited, appeared voluntarily, to contest the second codicil. After proof had been given of the execution of the will and the codicil in question, and the proponent had rested, the respondent Sarah Stark, presented a petition propounding the first codicil for probate. The appellant John Crolius, thereupon filed objections to the probate of such first codicil, on the ground that the same was duly revoked, and also that its execution was procured by fraud and undue influence. And the appellant William Crolius, and the respondents William de la Mo'ntagnie, Sarah A. Beach, Carrie Brest and Edward Crolius, as heirs-at-law and next of kin of the deceased, also intervened, and filed objections to the probate of the same codicil, taking the same grounds as those assigned by the appellant John Crolius. Proofs having been taken on both sides, the surrogate, after advisement, pronounced the sentence and decree from which appeal is taken. This decree is dated the 23d of May, 1872, and decides as follows : That the will and the first codicil were duly executed, and were not executed under restraint or undue influence. And probate thereof was awarded accordingly. That the second codicil was not duly executed and was null and void. That the revocation and cancellation of the first codicil were ineffectual, by reason of testamentary incapacity of the testatrix at the time. And it; declared the first codicil to be in all respects valid. On the 27th of May, the appellants, John Crolius and William Crolius, appealed from such sentence and decree in all its parts, save in so far as it decides that the instrument bearing date the 7th day of December, 1869, is the last will and testament of Mrs. Gray, and awards probate thereof to the appellant John Crolius.
    
      Henry Whittaker, for the appellants,
    
      H A. Nelson; for the respondents.
   By the Court, Ingraham, P. J.

The appeal in this case is from the decree of the surrogate, admitting to probate the will and second codicil of Sarah Gray and rejecting the first codicil.

The objection made to the second codicil was on the ground of mental incapacity, and of fraud and undue influence. The surrogate was of the opinion that the will and the first codicil were executed in due form of law, and at a time when there was no doubt as to her capacity to make a will; and his decision was based entirely, as to the codicils, on the supposed validity of the second codicil, by which the first was revoked, and by the cancellation of it which took place at the time of executing the last. •

The grounds on which his decision rested are as follows, viz., that the testimony of the lay witnesses was conflicting, and they were interested in the result. Those on one side testified to many acts which the surrogate thought indicated a sufficient mental capacity, while those on the other side show a state of facts which strongly denoted a contrary mental condition. The surrogaté then says: “Under such circumstances, I must resort to the testimony of professional witnesses to influence and guide me in determining the question of capacity.” He then refers to the testimony of the two physicians who were examined before him—Doctors Clark and Quackenboss—and adopts the testimony of the latter as controlling, because he had been her attending physician, and in his opinion she was incapable of exercising her judgment in regard to making a will. Under this evidence he rejected the second codicil.

In regard to the evidence of the lay witnesses, there can be no doubt that there was much contradiction on the part of the witnesses, and in many cases a coloring was given to their testimony, which clearly shows the bias in their minds, whether produced by feeling or interest. If this case rested solely on that evidence, we should hesitate about interfering with the decision,’ knowing that the surrogate had the witnesses before him and had a better opportunity of deciding as to the credit they were entitled to than we have, on an appeal, As, however, he appears to.have been controlled, in his decision, by the testimony of the physician who attended her, other matters must be considered, on this appeal, The testimony of both witnesses to the last codicil, one of whom had been witness to the first, also, was unqualifiedly in favor of the mental capacity of the testatrix. Dr. Clark’s testimony was in favor of her capacity, although he spoke from a statement of her case, and not from having visited the 'deceased.

The testimony of her physician is decided, against her competency to make a will. He speaks of her intellect being enfeebled, and of her inability to comprehend the claims on her bounty, and the provisions of the codicil. The second attack appears to have been a paralysis of the muscles of the throat and the power of speech, and some failure of memory was caused by it. He stated that his opinion was formed from her condition, and not from conversations with her. Nor is it clear that he had many opportunities of forming such opinion, after the 13tli of February. Subsequent to that day, his interviews with her were not more than once a month, if as often.

These opportunities of judging of mental capacity do not seem to be sufficient to warrant the rejection of the testimony of all those who were about the testatrix daily, whose intercourse was frequent, who had conversations with her on many occasions, who saw business transacted by her, and who were the witnesses to the codicil which has been rejected.

These matters referred to, as well as many others which appear in the testimony, lead us to entertain doubt as to the questions argued in regard to the last codicil.

It does not follow that either age or weakness of intellect are sufficient to incapacitate a person from making a will. It must be an entire loss of intellect, so that the testatrix was unable to understand what she was doing, or the contents of the paper when read to her. We do not think the evidence in this case warrants this conclusion. She may have been, and doubtless was, weakened both in body and mind by her second attack, but not to an extent sufficient to destroy her capacity to dispose of her property.

We think this is one of those cases in which it is proper to take the finding of a jury upon the questions raised.

While we would not, without further examination, order the second codicil to probate, we think the decisión of the court below shonl,d not be sustained, but that the questions should be sent down to the circuit for trial.

[First Department, General Term, at New York,

November 4, 1872,

Ingraham, and Brady, Justices.]

Decree of the surrogate reversed, and a feigned issue awarded; costs to abide the event.  