
    (55 Misc. Rep. 158.)
    In re FEENEY’S WILL.
    (Surrogate’s Court, Kings County.
    June, 1907.)
    Wills—Competency of Testator—Evidence.
    Where a will was drafted under the direction of a reputable attorney, and he testifies as to the character of the testator, and as to the instructions given him in preparing the will, and is corroborated in those respects by other witnesses, the will will be admitted to probate over the objection that by use of intoxicating liquors testator was incompetent.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 145.]
    In the. matter of the probate of the will of Michael E. Eeeney. Probate decreed.
    Theodore Burgmyer, for proponent.
    Leroy W. Ross, special guardian.
   CHURCH, S.

The evidence in this case shows that the testator had for many years been addicted to the use of intoxicating liquors, and that, at the time of the making of this will, he was in bad physical shape. This evidence, standing alone, would call for a very close scrutiny of the circumstances attending the execution of the will.

It is a well-established principle that, where the alleged incompe.tency results from the use of intoxicants rather than from any mental infirmity, it is necessary, in order to warrant a refusal of probate to a will, to establish that, at the time of the making of such will, the testator was so much under the influence of the intoxicant as to be unable to bring to its execution the calm judgment which the law requires. This fact has not only not been shown, but, on the contrary, the will has been shown to have been drafted and executed under the direction of an attorney of this court who has for many years borne an excellent reputation. He explains in minute detail the character of the testatoi; and the nature of the instructions given, in all of which he is corroborated by other witnesses, and his evidence appeals to me as entirely truthful and natural. Under these circumstances, therefore, the will should be admitted to probate.

Probate decreed.  