In the Matter of the Probate of the Last Will and Testament of James Edward Johnston, Deceased. Seth B. Rumsey and Claudia D. Rumsey, Appellants; Minnie Jewhurst, Respondent

In the Matter of the Probate of the Last Will and Testament of James Edward Johnston, Deceased. Seth B. Rumsey and Claudia D. Rumsey, Appellants; Minnie Jewhurst, Respondent. [MAJORITY] Appeal from a decree of the Tompkins County Surrogate’s Court, denying the petition to probate the will of decedent James E. Johnston, who was between seventy and seventy-five years of age at the time of his death. He was a native of England, but had lived in America more than forty years, and was a naturalized citizen. He had worked as an interne or guard in a New York 'State hospital; had accumulated a few thousand dollars and was the recipient of a monthly pension of sixty-eight dollars from the State. He gave his estate, by his will, to the members of a family with whom he had resided for the last year or two of his life. His only relatives were remote cousins. The contestant testified that her mother was decedent’s first cousin, but the cross-examination indicated that the relationship, if any, was even more remote. The evidence did not justify a submission to the jury of questions either as to decedent’s testamentary capacity or of undue influence in connection with the making of the will. The evidence justifies findings, which this court makes, that the decedent had testamentary capacity at the time the will was made; that it was made and executed as his free will and act, and without undue influence. Decree reversed, on the law and facts, with costs to appellants, payable from the estate; and the will is admitted to probate. All findings to the contrary, made by the court below, are reversed, on the law and facts; and matter remitted to the Surrogate’s Court of Tompkins county for the issuance of letters testamentary to the executors named in the will. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ.,. concur. ¡