Opinion
November 9, 1942.
Decree of the Surrogate's Court, Kings County, dismissing objections filed by appellants and admitting the will of the testator to probate, in so far as appealed from, affirmed, with costs to all parties filing briefs, payable out of the estate. The issue of testamentary capacity presented a fair question of fact for the jury, and the finding thereon may not be disturbed. The other questions raised are without merit. Hagarty, Johnston and Adel, JJ., concur; Taylor and Close, JJ., dissent and vote for a reversal and a new trial upon the ground that the testimony fails to show compliance with section 21 of the Decedent Estate Law (Cons. Laws, ch. 13). One of the subscribing witnesses was not called and her testimony was not dispensed with, as provided for in sections 141, 142 of the Surrogate's Court Act. The testimony of the notary public does not conform to the requirements of the statute.