
    In the Matter of the Probate of the Will of Nellie B. Simpson, Deceased. John Simpson, Appellant; Edward Simpson et al., Respondents.
   Per Curiam.

Appeal from a decree of the Surrogate’s Court of Broome County which denied probate to decedent’s purported will on the ground that proponent did not sustain the burden of proof respecting testamentary capacity. The purported will was dated June 27, 1962. By it, decedent’s entire estate was given to her son. A purported will made in 1959, also offered for probate, in a proceeding not yet completed, provided for decedent’s estate to be held in a spendthrift trust for the benefit of the son, allegedly a physically disabled alcoholic, with remainder to decedent’s grandchildren and her sister. In December, 1962, decedent was adjudicated incompetent. She died November 3, 1963, when she was over 82 years old. There was impressive evidence of decedent’s physical weakness by reason of a number of ailments and of her mental confusion, failure of understanding and general ineompeteney, due principally to cerebral deterioration caused by progressive general and cerebral arteriosclerosis, commencing long prior to the date of the purported will and continuing thereafter until her death. This proof was elicited from her attending physician, from a number of her nurses, from other professional people and from neighbors and friends. The Surrogate was completely warranted in accepting it as establishing testamentary incapacity and there is, in our view, no merit in appellant’s contention that his evidence should have been credited instead and contestants’ case ignored because contestants produced no proof of incompetency predicated on direct observation of decedent’s behavior and condition at the precise time of her subscription of the purported will. Decree affirmed, with costs to respondents payable from the estate. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.  