
    In the Matter of the Probate of the Will of William Watson the Younger.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 11, 1891.)
    Winns—Capacity—Intoxicants.
    Probate of a will was sought, to be revoked on the ground of incapacity, fraud and undue influence. The only evidence tending to sustain the allegations was that the testator was addicted to the use of intoxicating liquors to such an extent that it produced feebleness of body. Affirmative evidence showed that this habit had not affected his mind, and that when the will was executed he was sober. Held, that there was no ground for revocation of the wül.
    
      On reargument.
    
      C. A. S. Van Nostrand, for app’lt; Harrison S. Moore, for resp’t
   Barnard, P. J.

—The original decree of the surrogate, admitting the will to probate, was entered 23d of January, 1888. An infant party was brought in and she raised a new issue upon the construction of the will. The surrogate, on J une 4, 1888, again admitted the will to probate, and this decree also construed a clause in the will in respect to a power of disposition in the will. This decree was not appealed from.

The present proceeding was initiated by petition, and this recited the two decrees and specifically referred to the construction of the will made by the decree of june 4, 1888. The grounds stated in it for a revocation of the probate were based upon allegations of incapacity, fraud and undue influence. The surrogate denied the application and this appeal brings up the order denying revocation.

The petitioners argued at great length the question of the construction of the will, and if the probate was properly granted the error of the construction would not be sufficient of itself to revoke probate, yet so far as that question entered into the application to revoke probate, it was considered and passed upon by the general term. The opinion expresses our conclusion as to the general capacity of testator, his freedom from restraint or fraud, as well as a concurrence with the surrogate in his construction of the will. This was not, it is true, directly presented by the appeal; but it was so strenuously argued as a reason for revocation that it was examined and no reason was found in the construction why a revocation should be had.

Motion denied, with ten dollars costs.

Dykman and ÍPratt, JJ., concur.  