
    In the Matter of Proving the Last Will and Testament of William D. Morey, Deceased.
   Appeal from a decree of the Surrogate’s Court, Chemung county, denying probate of a purported will of decedent dated August 26, 1935, and admitting to probate a will of decedent dated October 16, 1931. Testator executed a will under date of October 15, 1931, leaving all of bis property to his daughter Katheryn. Later he executed a purported wfil dated August 26, 1935, by which he attempted to devise his property equally to his daughter Katheryn, his wife Elizabeth and an infant stepson, the appellant Paul Kingston. At the time of the execution of the latter document he was suffering from kidney disease, diabetes, heart disease and hardening of the arteries. After his death proceedings were commenced for the probate of each testamentary document, the proceedings were eonsohdated and after a trial the surrogate made his decision, admitting to probate the earlier wEl and deciding that at the execution of the later document decedent was not competent to make a wEl. His wife, the appeHant Elizabeth Morey, had been twice married previous to her marriage to testator, the appellant Paul Kingston, being a ehEd of her second marriage. Decedent had one previous marriage, of which respondent Katheryn Morey was born. At the time of his death in 1936, he was about seventy-four years of age and his wife was about forty-six. Their marital life had been unpleasant, resulting in separation within a short time, which was foEowed by an action for separation in which decedent was defendant, but was granted a decree of separation from his wife, because of her cruelty. The evidence amply supports the decision that at the execution of the alleged wEl of August 26, 1935, testator was not mentally competent. Decree unanimously affirmed, with costs to the respondent payable out of the estate. Present — HE1, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ. [164 Mise. 527.]  