In re Palazza , 20 A.D.2d 542 ( 1963 )

In a probate proceeding, the contestants (who are married daughters of the decedent) appeal from a decree of the Surrogate’s Court, Queens County, entered June 27, 1962 after trial, upon a jury’s verdict directed by the court in the proponent’s favor on all the framed issues, which admitted the propounded instrument to probate as the will of the decedent. Decree reversed on the law and the facts, with costs to the contestants payable out of the estate; and new trial ordered, limited to the issues (numbered four and eight) with respect to the decedent’s testamentary capacity. Pursuant to statute (Surrogate’s Ct. Act, § 309), this court directs the entry and recording of the jury’s verdict upon such issues as have not been ordered retried. We are satisfied that all issues, other than those numbered four and tight, were correctly disposed of by the Surrogate. However, in the light" of the undisputed official record of the decedent’s mental condition and the proof as to the nature of her ailment and as to her conduct, a jury question was presented as to her testamentary capacity. Hence, with respect to the issues relating to testamentary capacity, the verdict should not have been directed by the court. It was also error to exclude the records of Pilgrim State Hospital, These records were germane to the alleged progressive deterioration of the decedent. Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.