
    Emma Seaman and Others, Infants, by Adelaide Moore, Guardian ad Litem, and Others, Appellants, v. Edward R. McLaury, as Executor of a Paper Writing Purporting to Be the Last Will and Testament of Jane Blauvelt, Deceased, and Others, Respondents, Impleaded with Margaret Stewart and Others.
    Second Department,
    October 8, 1909.
    Will — testamentary capacity.
    Action to have a will adjudged invalid on the ground that the testatrix lacked testamentary capacity. Evidence examined, and held, error to direct a verdict for the defendant,
    Jenks, J., dissented.
    
      Appeal by the plaintiffs, Emma Seaman and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Westchester on the 3d day of May, 1909, upon the verdict of a jury rendered by direction of the court, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 17th day of February, 1909, denying the plaintiffs’ motion for a new trial made upon the minutes.
    The action was to have a will adjudged invalid.
    
      Lavinia Lally, for the appellants.
    
      John H. Corwin [Walter Moffat with him on the brief], for the respondents.
   Gaynor, J.:

It was error to direct a verdict for the defendants. The testatrix died in 1908, aged 88 years. Her alleged "will was made in December, 1907. The testimony for the plaintiffs was abundant that for several years before her death she was bed-ridden and helpless, was fed with a spoon, had no control of her bodily functions, and had to be cared for in all details like a babe. Indeed, this was conceded on the trial. The evidence tended to show also that she was mentally feeble, peculiar and uncertain. The defendants called no witnesses except the lawyer who came to her abode and drew the will, and the two witnesses thereto whom he selected and brought with him without any apparent request from the testatrix or any one in her behalf to do so. He was a stranger to her, and it does not clearly appear how he was sent for, or that she caused him to be sent for. These three tell circumstantially what took place at the drawing and execution of the will, and their testimony would sustain the testamentary capacity of the testatrix, although it reveals that she was suspicions and odd. The will leaves §30,000 to the First Deformed Church of Yonkers, and §2,000 to the niece with whom she lived. This was substantially all of her estate. The next of kin of the testatrix were nephews and nieces. It was proved that she was on good terms with them and had frequently declared during the late years of her life that she would make no will as she did not want to prefer any of them. The testatrix was not a member of the said church. Its pastor had made frequent calls upon her.

The case was peculiarly one for the jury to say whether the testatrix had testamentary capacity.

The judgment should be reversed.

Burr, Rich and Miller, JJ., concurred; Jenks, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event. '  