Opinion
November 16, 1949.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ. [ 193 Misc. 1046.]
Decree insofar as appealed from by contestants affirmed; decree insofar as appealed from by proponents reversed on the law and facts and a new trial granted on the question of fraud and undue influence, with costs to proponents-appellants to abide the event. Memorandum: We think the Surrogate properly ruled that proponents had established that the will was duly executed and that decedent had sufficient mental capacity at the time the will was signed, and that a finding by the jury to the contrary would have required the setting aside of the verdict. As to a finding of undue influence, we reach a different conclusion. While the learned Surrogate endeavored to keep the examination and cross-examination of witnesses by contestants' trial counsel within proper bounds, the methods employed by contestants' trial counsel and persisted in after he had been admonished by the court was prejudicial to proponents. It was not proper trial practice on the part of counsel to persist in making statements of fact, to misinterpret the answers of witnesses and to state to the jury that facts had been established when no competent proof had been made of such facts. The admission of the testimony of the witnesses Loomis and Van Inwagen as to conditions in decedent's home and as to conversations with decedent occurring after the execution of the will was prejudicial error. Much of the testimony of the witness Rogers was improperly received to the prejudice of proponents. On the new trial where the only issue will be the question of undue influence we think no testimony of this nature will be competent or relevant. The charge clearly and adequately presented the issues to the jury, but we think the errors above noted and the interests of justice require a reversal of the verdict of the jury and a new trial on the question of undue influence. All concur. (The decree holds that execution of the will of decedent was procured by undue influence and denies probate to the will, but dismisses the other objections filed by contestants.)