#### In the Matter of Proving the Last Will and Testament of Jerome B. Tuttle, Deceased. Alden C. Tuttle, Appellant; William H. Kittle, Proponent, Respondent.

Fourth Department,

January 8, 1908.

Will — facts not showing testamentary capacity —reversal of probate — issues sent to jury.

Evidence examined and held to he insufficient to support a finding by the surrogate that the testator had testamentary capacity and was free from restraint.

Upon .the reversal of a surrogate’s decree admitting a will to probate on the grounds that the facts- did not warrant a finding of testamentary capacity and freedom from constraint, the Appellate Division must order the questions of fact to be tided before a jury, pursuant to section 2588 of the Code of Civil Procedure.

*168Appeal by Aldert C. Tuttle from a decree of the Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 22d day of October, 1906, admitting to probate the alleged last will and codicil of Jerome B. Tuttle, deceased.

*J. I.*Casey, for the appellant.

*J. E. Rafter*and *A. M. Mills,*for the respondent.

Williams, J.:

The decree should be reversed on the facts, with costs to abide event; and a new trial ordered before a jury, - under section 2588 of the Code' of Civil Procedure. __

The only question here involved is whether there was- evidence of competencyof the testator and freedom from- restraint at the time the will was executed, -sufficient to authorize the surrogate to admit the will to probate under section 2623 of the Code.

The evidence of Mr. Kafter and that of Mr. Kittle, so far as objected and excepted to, should be disregarded as incompetent and improper. '

The testator was born in 1832, and died June 5, 1906. The will w-as executed October Y, 1904, and the codicil November 25,. 1904. Testator left a son, a daughter and a grandson by a deceased son of the'testator, his only heirs and next of kin..

He left three farms and the personal property thereon. No proof was given of the values of the respective farms, or personal property thereon, or what other personal property he had, if any, besides that on the farms.- By his will lie gave his-son the Diefendorf farm of 1Y5 acres and personal property thereon, and $2,000 to be paid him by the grandson. He gave his grandson the Doolittle farm of 225 acres and personal property- thereon, and directed him to pay the son $2,000, which was made a lien on the farm of the grandson. The codicil revoked.the $2,000 provision of the will. By the will he gave his daughter the home farm of 63 acres and the personal property thereon, including household f urniture, etc., and made her his *residuary*legatee, and her husband ■ executor.

The three farms were in the town of German Flats, Herkimer *169county, the home farm within the limits of the village of Mohawk. We are unable to say whether-the will and codicil made?-an unequal division of the property, the. relative values of the farms, etc., not appearing from the record. There was at least a substantial provision for each of the three heirs and next of kin. The parties seem to have been playing sharp on the trial, and to have taken chances as to what would result from the evidence *given*rather than give such evidence as was at hand.

The deceased had lived in' the locality where he died for many years. The witness Richardson had known him for twenty years. The witness Dr. Casey had known him since he, witness, was a boy, and had attended him as a physician for several months prior to the execution of the will, and testified deceased had Bright’s disease, which impaired his physical strength, and his eyesight had become impaired by the disease. The witness Edgar Chapman had known deceased.for thirty to thirty-five years, and knew that he had trouble with his eyes and was doctoring for a number of different diseases; had fever sores on his legs and was out of health. The other witness to the codicil was the wife of this witness.

■ Mr. Kittle, the executor, married the daughter of deceased, and lived in the same house with him for years before he died, conversed with him frequently before and after the execution of the will and codicil and observed his actions and life day after day. Here were witnesses in court whose evidence could be given to show whether deceased was competent when he made the will and codicil without calling his neighbors who were not in court. The four witnesses to the will and codicil could have expressed their opinions as to his competency. They could very likely have given more or less conversations with the deceased, and then have testified whether such conversations impressed them as rational or irrational. The witness Kittle,' the ■ executor, had many conversations and full opportunity for years toi observe the conduct of deceased. He could have testified to such conversations and describe such conduct, and could then have testified whether the conversations and conduct detailed by him’ impressed him as • rational or irrational. The evidence here suggested as at hand, and not used, may have-tended to show competency or incompetency, we do not know which. But neither side saw fit to give it. The freedom from restraint, in *170the absence of direct evidence thereof, could have been very safely inferred frdtn the other evidence in the case we have suggested, if competency was found to exist. If incompetency was found, restraint or its absence would be immaterial, unimportant. • The evidence here does not seem to be sufficient,- under the circu.m- - stances, to support the finding of competency and freedom from restraint, under the section, of the Code above referred to. It is not quite right that this question of fact should be left in doubt and determined by the court upon inferences and technicalities, when the evidence to determine the question is at hand and can easily be obtained.- We are unwilling to dispose of the questions of fact upon the showing made by the parties before the surrogate.

We are given the same power as the surrogate to decide questions of fact upon such aii appeal as this, and the .duty rests -upon us to look into the facts and determine whether the decision of the surrogate is correct (Code Civ. Proc., § 2586).

We think there should be a reversal of this decree( on the facts, and, "therefore, we must order the questions of fact involved to be tried before a jury under section 2588 of the Code.

All concurred.

Decree of Surrogate’s Court reversed, with costs to the appellant to abide event payable but of the' estate, and the following questions of fact are hereby ordered' to be tried by a jury at á Trial Term of the Supreme Court, to be held in and for the county of Herkimer, commencing oil the 6t!h day. of April, .1908,, viz.: 1. Was the alleged testator competent to make a last will and-testament at the time the will proposed' for probate was alleged to have been executed? 2. Was such will, if executed, the free,and voluntary act of the decedent'? 3. Was the will offered for probate signed and duly executed by the decedent ? •