In re the Probate of Will of Fitzgerald

Appeal by proponent of the will of Edward J. Fitzgerald, deceased, from a decree of the Surrogate’s Court of Queens County, denying probate and making an allowance to the special guardian, and by the special guardian from so much of the decree as denies probate to the propounded script. Decree modified on the law and the facts by striking therefrom the provisions with respect of the jury’s verdict, the dismissal of the petition, and denial of probate to the propounded script, and by inserting in place thereof a provision admitting the will to probate. As thus modified, the decree is unanimously affirmed, with costs, payable out of the estate, to all parties filing briefs, and the matter is remitted to the Surrogate’s Court for the entry of a decree accordingly. No evidence of undue influence was adduced that warranted a submission to the 3ury on that issue. The interest of the draftsman of the script was contingent and too remote to present a jury question under the proof herein. (Matter of Smith, 95 N. Y. 516, 523; Matter of Connor, 230 App. Div. 163; Eaughian V. Contan, 86 App. Div. 290; Matter of Wharton, 270 App. Div. 670.) Present — Hagarty, Acting P. J., Carswell, Johnston, Adel and Sneed, JJ. J