
    In re TIBBITTS’ WILL.
    (Supreme Court, Appellate Division, Fourth Department.
    February 4, 1909.)
    In the matter of proving the/ last will, and testament of Henry W. Tibbitts, deceased.
   PER,CURIAM.

Decree of Surrogate’s Court reversed, upon questions of fact, with costs to appellants to abide event against the respondent personally, and a trial of the following issues of fact directed to be had, as provided by ( section 2588 of the Code of Civil Procedure, by / and before a jury of the Supreme Court at a j term thereof to be convened at the city of Syracuse, in and for the county of Onondaga, on' the first Monday in March, 1909, to wit: (1) Did Henry W. Tibbitts possess testamentary capacity at the time of the execution of the alleged will bearing date July 17, 1903? (2) Was the execution of said alleged will procured by fraud or undue influence practiced upon him? (3) Did said alleged testator possess testamentary capacity at the time of the execution of the codicil to said alleged will, bearing date November 15, 1906? (4) Was the execution of said codicil procured by fraud or undue influence practiced upon him?  