In re the Probate of the Will of Godlef

Appeal by the proponent from a decree of the Surrogate’s Court, Queens County, insofar as it denied probate of an instrument as a will, awarded costs against the proponent individually and disallowed proponent’s bill of costs. Decree modified on the law by striking out the provision awarding costs against the proponent individually, and by directing that the costs awarded to the contestant shall be payable out of the estate, and as so modified, decree unanimously affirmed, with costs to both parties, payable out of the estate. The issue as to the testamentary capacity of the deceased was properly submitted to the jury. (Matter of Barney, 185 App. Div. 782, 794.) There was, however, no evidence which warranted submission to the jury of items 2, 3, 5, 6 and 7 of the framed issues, and the findings as to those items are reversed. Since there was no fraud or undue influence on the part of the proponent, costs should not have been awarded against her personally. Wenzel, Acting P. J., MaeCrate, Schmidt, Beldock and Murphy, JJ., concur.