(91 Hun, 209.)

#### In re DAVIS’ WILL.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Wills—Capacity to Make.

The court will not set aside a will on the ground that testator was incompetent, where the testimony of the two attesting witnesses, one of whom was testator’s physician, is that at the time it was executed he was of sound mind, and this testimony is not disputed, except by testimony that he was irrational at intervals at other times.

Appeal from surrogate’s court, Kings county.

Proceeding for the probate of the will of Jesse J. Davis, deceased. From a decree admitting the paper to probate as the will of said decedent, Charles E. Davis, the contestant, appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

*345Benno Loewy, for appellant.

Charles W. Culver, for respondent.

BROWN, P. J.

The substantial and material facts in this case are undisputed. The contestant is the son of the testator, and the proponent of the will in his widow. The deceased was upwards of 70 years of age, and had married the proponent about six months prior to his death. He had been sick with heart disease for about a month prior to the execution of his will. A good part of the time he was unable to sleep or lie down, or to take sufficient nourishment, and at times he was flighty and light-headed. The will bore date of December 7, 1894, and was executed on the evening of that day. It was witnessed by his family physician, Dr. Winter, and a neighbor, Mrs. Neidhart. It had been prepared by his lawyer, Mr. Wright, who had for a long time been his personal friend. At the request of the testator, the will was read to him by Dr. Winter twice. After the second reading he said: “That is correct. That is just as I want it to be.” Dr. Winter testified that at the time of executing the will the testator was of sound mind and memory, and Mrs. Neidhart testified that she considered he was of sound mind at the time. She said, “He seemed to me to be just as sound as he had been on previous occasions when I had seen him, only he was weak.” The contestant called one witness, who saw the testator the day after the will was executed, who testified that he was then irrational. Another witness saw him three times between the 8th and the 23d of December, when he died. At such times he was irrational. Another witness saw him after December 13th, and he was irrational. Mr. Wright, who drew the will, testified that, he called on him on the afternoon of December 7th; that he was then irrational, and he would not allow him to execute the will. There was no evidence to support the charge of undue influence, and, upon the testimony which I have quoted, we are of the opinion that the surrogate properly decided that the testator was competent to execute the will. The irrational conversations which were testified to by the contestant’s witnesses did not prove that the testator was insane. They were manifestations of the progress of the disease from which he suffered, and indicated a weak mind, as the result of suffering from lack of rest and proper nourishment. These periods of irrational action and lack of sound mental control were temporary, and when they had passed the testator was able to attend to business, and to understand the nature and character of his acts. They were fully explained by Ms physician, and there was absolutely no testimony to contradict the statements of Dr. Winter and Mrs. Neidhart that when he executed the will his mind was clear. The decree must be affirmed, with costs to be paid by the appellant. All concur.