#### In re SNELLING’S WILL.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Wills—Testamentary Capacity—Periodical Insanity.

Evidence that testator understood the nature and condition of her property, and the disposition she made of it, shows testamentary capacity, though she had periods of insanity.

*943Appeal from surrogate’s court, Suffolk county.-

Proceeding for the probate of the will of Mary Snelling, deceased. The application was contested by John H. Lewis, Mary Gordon, Thomas H. Lewis, Peter H. Lewis, Susan Lewis, Thomas Lewis, of New York City, Thomas Lewis, of Elwood, L. L, Charles H. Lewis, Henrietta Anderton, and Frank Lewis. TÉe will was admitted to probate, and contestants appeal. Affirmed.

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

L. R. Beckley, for appellants.

Thos. Young, for respondents.

BROWN, P. J.

When this case was before the court of appeals on a prior appeal, the conclusion of the surrogate that the will was not the product of undue influence, and that the decedent possessed the necessary testamentary capacity to execute it, was not disturbed. 32 N. E. 1006. The decree then before the court was reversed for the erroneous admission of improper testimony. Some new testimony was introduced upon the last hearing, but, after a careful examination of the whole case, I do not think it is changed in any essential feature from that presented on the first appeal. The evidence would not permit the conclusion that Mr. and Mrs. Cook exerted any undue influence upon Mrs. Snelling. The important question is whether she possessed testamentary capacity. That her mind was weak, and that she was at times insane, is clearly shown; but the periods of her insanity were generally of short duration, and existed when she was sick. When she recovered from her sickness, her mental powers returned, and she was capable of taking-care of herself and her property. The will in question was executed on June 24, 1890. For about a year prior to that date, she had resided with Mrs. Denton; and her mode of life, and her physical and mental condition, during that period, have been fully described by that witness. During that time she had no sickness requiring the attendance of a physician,-and her memory was fairly good, and she attended to and transacted her own business. She appears to have understood the nature and condition of her property, and the disposition which, by will or otherwise, she had made of it. She was during this time a near neighbor of Mr. and Mrs. Cook, and on terms of intimacy with them, and regarded and treated them as her nearest friends. The weight of evidence is in favor of the conclusion that when she executed the will she understood the nature and character of her act, and comprehended its consequence, and the determination of the surrogate that she was competent to execute the instrument cannot be disturbed. The decree must be affirmed, with costs to be paid by the contestants.

DYKMAN, J.

I am in favor of affirmance, but I think the costs had better be paid from the estate. There was some justification for the contest.

PRATT, J., concurs in affirmance; costs to be paid out of the estate.