
    In re DIADAMA’S WILL.
    (Supreme Court, Appellate Division, Fourth Department.
    March 25, 1908.)
    In the matter of proving the last will and testament of Henry D. Diadama, deceased.
   PER CURIAM.

Decree of Surrogate’s Court reversed, with costs to appellant and one bill of costs to respondent on this appeal, payable out of the estate, and a trial of the following issues of fact directed to be had by and before a jury in the Supreme Court at a term thereof to be convened in the city of Syracuse, in and for the county of Onondaga, on the first Monday in May, 1908, to wit: First: (1) Did Henry D. Diadama possess testamentary capacity at the time of the execution of the alleged will bearing date June 15, 1904? (2) Was the execution of said alleged will procured by fraud or undue influence practiced upon him? Second: (1) Did Henry D. Diadama possess testamentary capacity at the time of the execution of the' alleged codicil bearing date May 3, 1905? 2. Was the execution of said alleged codicil procured by fraud or undue influence practiced upon him? Held: There is sufficient doubt as to the correctness of the decision refusing probate to the will and codicil of the alleged testator, so that the questions of fact should be passed upon by a jury, as provided in section 2588 of the Code of Civil Procedure.

Mclennan, p. j., not voting.  