Full text
In the Matter of Proving the Last Will and Testament of Mary G. McCullough, etc. John N. Pollock and Frank O. Corwin, Executors, etc., of Mary G. McCullough, and Henry Hirschberg, as Special Guardian for Anne Rebecca Corwin and John Richard Gallagher, Infants, etc., Appellants Peter Cantline, Special Guardian for William S. Montgomery and Margaret A. Montgomery, Infants, etc.
Decree of the Surrogate’s Court of Orange county denying probate of the will of Mary G. McCullough and order denying motion for a new trial reversed upon the law and new trial ordered, costs to appellants to abide the event, payable out of the estate, and proceeding remitted to the Surrogate’s Court of Orange county for further action in accordance with this decision.
The trial court erred in permitting Dr. Osterhout to testify at folios 719 and 773 that, in his opinion, the testatrix was incompetent to make a will at the time of its execution and prior thereto.
(Wyse v. Wyse, 155 N. Y. 367; Matter of Arnold, 14 Hun, 525; Matter of Mason, 60 id. 46, 54; Matter of Schmidt, 139 N. Y. Supp. 464, 473; 3 Chamberlayne Ev. [Ed. 1912] § 2429, p. 3280; Runyan v. Price, 15 Ohio St. 1, 14; Walker v. Walker’s Executor, 34 Ala. 469, 473.) Young, Hagarty, Seeger, Carswell and Seudder, JJ., concur.