
    Thomas W. Tuite, as Administrator, etc., of Bridget Ditton, Deceased, Appellant, v. Martha Hart and Ellen Lynch, Respondents.
    —Judgment modified by striking out the words “ on the merits,” and as so modified, affirmed, without costs of this appeal.— Appeal from a judgment dismissing plaintiff’s complaint at the close of plaintiff’s evidence.—
   Woodward, J.:

This is the action by the administrator of the estate of Bridget Ditton, deceased, to recover $3.000, which the def endants drew from a savings bank upon an order signed by the mark of the deceased, The draft or order for the payment of the money which stood to the credit of the deceased was made on the 16th day of March, 1900, and was drawn on the twenty-sixth day of March. On the nineteenth of April, Mrs. Ditton died, and the contention of the plaintiff is that the money, or the books and papers on which the money was drawn, was taken from the deceased by fraud, forgery and deception practiced upon her while in her last illness. The complaint alleges “ That on the sixteenth day of March, 1900, the said Bridget Ditton, being in ill health and very feeble mentally and physically, and lying upon her death bed and being ill with pneumonía and la grippe accompanied with high fevers and all through the course of her sickness delirious and non compos mentis:" but there is not a particle of evídence m the case to show that Mrs. Ditton was non comx>os mentis, or that she was incapable of transacting business. The evideuce shows that she was ill, but she lived more than one month after the execution of the papers on which the money was drawn, and which were acknowledged before a notary public, and more than three weeks after the money had actually come into the possession of these defendants; and in the absence of some - proof of fraud, collusion, undue influence, or other vitiating circumstance, the plaintiff has clearly failed to establish a cause of action, ana the complaint was properly dismissed upon the merits. The presumptions in this case are with the defendants, and the plaintiff must, to be entitled to question the acts of the decedent, be prepared to show that she was mentally incapacitated, and in this he has utterly failed. Mere physical weakness, and the evidence did not go beyond this, is not sufficient to show mental infirmity, and without this the plaintiff has no case. We think, however, that the judgment should be modified by striking out the words u on the merits,” and as so modified affirmed, without costs of this appeal. All concurred.  