
    In re BURNS’ WILL.
    (Supreme Court, Appellate Division, Fourth Department.
    February, 2, 1910.)
    In the matter of the probate of the last will and testament of Sarah J. Burns, deceased.
   PER CURIAM.

Decree of Surrogate’s Court reversed, upon questions of fact, with costs to appellant to abide event, payable out of the estate, and a trial of the following issues of fact directed to be had, as provided by section 2588 of the Code of Civil Procedure, by and before a jury of the Supreme Court at a Trial Term thereof to be convened at the city of Rochester, in and for the county of Monroe, on the first Monday in March, 1910, to wit: (1) Did Sarah J. Burns possess testamentary capacity at the time of the execution of the alleged will bearing date March 28, 1907? (2) Was the execution of said alleged will procured by fraud or undue influence practiced upon her?

McLennan, P. j., and KRUSE, J., dissent.  