
    Frank J. Shallow, Respondent, v. Metropolitan Life Insurance Company, Defendant, and Emma C. Carballal, Appellant.
    First Department,
    June 5, 1951.
    
      
      Philip A. Limpert for appellant.
    
      Samuel Seligsohn of counsel (Daniel S. Weiss, attorney), for respondent.
   Per Curiam.

Decedent, a widower, seventy-two years of age, executed a change of beneficiary under the life insurance policy in question at St. John’s Hospital on June 19, 1918. He died at the hospital on July 2d of the same year.

The finding of mental incompetency on the part of the decedent is based upon the opinions of physicians. These doctors were not present when the decedent executed the instrument changing the beneficiary under the life insurance policy. They expressed the view that from their prior observation and the hospital case history of the patient, he was incapable of knowing the nature of his acts at the time he purportedly executed the change of beneficiary.

The two persons who were there when decedent signed the disputed instrument gave clear and convincing testimony which indicated that decedent was then rational and was fully aware that he was executing a change of beneficiary under his life insurance policy. A brother of the decedent and some friends of the decedent who visited him in the hospital, both before and after the event, said that he was rational on those occasions.

It has been held that in such circumstances whatever ordinarily may be thought of the wrorth of medical opinion evidence, where it is contradicted by the facts, the facts must prevail. (Matter of Horton, 297 N. Y. 891; Matter of Burnham, 201 App. Div. 621, affd. 234 N. Y. 475; Matter of Holcomb, 150 Misc. 684, affd. 242 App. Div. 889.) The finding of mental incoinpetency in the circumstances was not warranted.

It is our opinion too that the evidence failed to establish undue influence.

We find that on June 19, 1948, when decedent signed the disputed instrument, he was mentally competent to execute a change of beneficiary to appellant of the insurance policy, Certificate Number 022120, issued by Metropolitan Life Insurance Company and that he did so of his own free will.

The judgment, therefore, should be reversed and judgment granted in favor of defendant Emma C. Carballal. Settle order.

Dose, J. P., Cohn, Van Vooehis, Shientag and MoCubn, JJ., concur.

Judgment unanimously reversed, with costs to the appellant and judgment is directed to be entered in favor of the defendant Emma C. Carballal, with costs. Settle order on notice.  