#### Matter of Proceedings for the Probate of Last Will and Testament of Thomas J. Conaty, Deceased.

(Surrogate’s Court, New York County,

January, 1899.)

Will — Testamentary capacity.

Where testamentary provisions are not unnatural and there is evidence that the testator gave clear instructions as to a will which he executed some hours before his death from injuries, the will will be admitted to probate, although attendant physicians, who had seen him for two days before his death, express the opinion that his condition was such that he could-not have carried on the conversations sworn to by the proponent’s witnesses', nor have comprehended the nature of the testamentary act.

Probate contested by widow.

Cornelius F. Collins, for proponent.

McElhinney *&*Martin, for contestant.

*105Arnold, S.

It is conceded that the decedent was suffering from the effects of a painful injury at the time of the execution of the will presented for prohate, and that his death resulted from such injury some hours after said execution; but one of the subscribing] witnesses, who is a lawyer, testified that he drew the will in the presence of the testator after receiving from him full and clear instructions as to the disposition he desired to make of his property and information asi to the character of the same; that he was then of sound mind; that when completed the witness read it over to him, and it was then executed with all the formalities required by law. The testimony of the other subsciibing witness is in corroboration of this, and there is additional supporting evidence. The testator’s property consisted of real estate of the value of about $5,000 above mortgage liens, and of personal property of about the same amount. The will gives the testator’s wife $1,000 in addition to her dower right, makes a bequest of $250 to the sister of his first wife, and appoints her guardian of his only child (the issue of his earlier marriage), a minor, who resided with the legatee, and to which child he gives all the residue of his estate. It will thus be seen that the widow, who is the sole contestant, may possibly, if the will be sustained, receive thereunder something, but not much less than she would be entitled to if probate be r'efused; but it cannot be said that these testamentary provisions were unnatural or indicate unsoundness of mind or a lack of comprehension by the testator of his relations towards the members of his family and their several claims upon his bounty. Testimony of physicians was introduced on the part-of the contestant to the effect that either from their personal observation of the decedent’s condition at the hospital, where he was brought after receiving his injuries and died two days thereafter, or from their experience and knowledge in respect to the nature and consequences of such injuries, they were of opinion that he could not have been able to maintain and carry on the conversations sworn to by proponent’s witnesses, or to comprehend the nature of the testamentary act, which it is claimed he performed. This evidence, however, does not, in my judgment, outweigh the positive testimony of the proponent’s witnesses, which establishes to my satisfaction the due execution of the will and the competency of the testator. A decree may be submitted admitting the will to probate.

Decreed accordingly.