
    (82 Hun, 49.)
    In re FLANSBURGH’S WILL. In re BRIZZEE.
    (Supreme Court, General Term, Fourth Department.
    December 7, 1894.)
    Wills—Testamentary Capacity.
    Want of testamentary capacity is not established merely by evidence that testator was irritable and excitable in the latter years of his life; that he was subject to epileptic fits; that he was not always cleanly; that he was partially blind, and sometimes got lost; that he sometimes acted childishly; and that he sometimes shed tears.
    Appeal from surrogate’s court, Broome county.
    Application by Susan Brizzee for probate of the will of John W. Flansburgh, deceased. Probate was contested by Calesta A. Miller. From a decree refusing to admit the will to probate, proponent appeals.
    Reversed.
    Argued before HARDEN, P. J., and MARTIN and MERWEN, JJ.
    Carver, Deyo & Jenkins, for appellant.
    A. D. Wales, for respondent.
   MARTIN, J.

It was expressly found by the surrogate’s court that the execution of the will in question was not procured by undue influence. This finding was, we think, fully justified by the evidence. The only ground upon which probate of the testator’s will was denied was that he was not of sound and disposing mind and memory, and not competent to make a valid will. Hence, the only question to be determined upon this appeal is whether the evidence was sufficient to fairly justify that conclusion. If the testator’s mental powers enabled him to understand and appreciate the amount and condition of his property, and to comprehend the nature and consequences of his act in executing the will in question, he was at liberty to dispose of his property as to him seemed best, so long as the disposition was his own free act. In re Snelling, 136 N. Y. 515, 517, 32 N. E. 1006. Although the legal presumption is that every man is compos mentis, and the burden of proof that he is not rests upon the party alleging it, still it devolved upon the •proponents to prove, not only the execution and publication of this will, but also the mental capacity of the testator; and if, upon consideration of the evidence on both sides, the court properly was not satisfied that the testator was of sound and disposing mind and memory, the probate should have been denied. Delafield v. Parish, 25 N. Y. 9. While the evidence offered by the contestant tended to show that the testator was more irritable and excitable in the latter years of his life than formerly; that he was for several years before and until about the time of the execution of his will subject to epileptic fits; that he was not always cleanly in the use of tobacco, or as particular as formerly in the exposure of his person when attending to the calls of nature; that he sometimes got lost; that •he was partially blind (which may explain some of these acts); that in a spirit of fun he sometimes performed acts of a childish nature; that he became distrustful of his daughter and her husband when they had quarreled, as Dr. Dibble predicted they would, because the daughter and father were so nearly alike; and that he sometimes shed tears, presumably when meditating upon the troubles which encompassed him,—yet, after a careful study of all the evidence contained in the appeal book, we are unable to concur in the conclusion of the learned surrogate as to the incompetency of the testator to make the will in question. We are therefore of the opinion that ■ the decree of the surrogate’s court should be reversed, and the issues tried before a jury. Decree of the surrogate’s court of Broome •county reversed, and a new trial of the issues of fact directed before .a jury of the circuit court of Broome county, the order to be settled before MARTIN, J. The costs of this appeal are to abide the final direction of the surrogate’s court. All concur.  