Eva Rosenstock, Appellant, v. Joseph Metzger, Individually and as Sole Executor, etc., of Helena Metzger, Deceased, and Others, Respondents, Impleaded with Felix Rosenstock and Others

Eva Rosenstock, Appellant, v. Joseph Metzger, Individually and as Sole Executor, etc., of Helena Metzger, Deceased, and Others, Respondents, Impleaded with Felix Rosenstock and Others. First Department, February 4, 1910. Trial — will — action to revoke probate — submission of claim not proved. Where in an action to revoke the probate of a will the plaintiff, though asserting that the instrument was invalid for lack of due execution, lack of testamentary capacity, and because it was executed through undue influence, admitted that lack of due execution was not established, it is error for the court to submit the general question as to whether the writing was the last will of the testatrix. A judgment for the plaintiff will be reversed, as the verdict may have been based upon a finding that the execution was defective. In the absence of a special verdict where three issues are submitted to the jury, as to one of which a verdict for the plaintiff would he against the weight of evidence, a judgment in his favor will be reversed. Appeal by the plaintiff, Eva Rosenstock, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 13th day of May, 1909, setting aside the verdict of a jury in favor' of the plaintiff and granting a motion of certain of the defendants for a new trial made upon the minutes. L. F. Fish, for the appellant. Alexander Pfeiffer, for. the respondents. [MAJORITY — Dowling, J.:] Dowling, J.: Helena Metzger died on December 29, 1907, leaving a last will and testament, which, was admitted to probate by the surrogate of Hew York county on December 11, 1908. Thereafter the present action was begun under section 2653a of the Code' of Civil Procedure to revoke such probate upon three grounds : That the will was never executed by testatrix in conformity with the requirements of law; that at the time of the alleged signing thereof, the testatrix was of unsound mind and incapable of making a testamentary disposition of her property, and that the execution thereof, if the same was ever executed by testatrix, was secured by the fi-aud. and undue influence of the defendant Joseph Metzger and others, whereby the intent and purpose of the said testatrix in making a testamentary disposition of her property was overcome and destroyed, and the desires and purposes of the defendant Joseph Metzger and others substituted therefor. Upon the trial evidence was introduced upon the second and third of these issues thus tendered; but there was no evidence whatever to substantiate the first allegation of an absence of execution of the will by testatrix. At the close of the plaintiff’s case a motion was made to dismiss the complaint on specified grounds, and the defendants moved as well to withdraw from the jury any question as to the due attestation and execution of the will, upon the ground that there was no evidence upon'that point. The plaintiff’s counsel admitted that he had not offered any testimony in support of that particular contention, but announced that he expected to be able to prove it by the examination of • the defendants’ witnesses, and upon that statement the motion was denied and the defendants were put upon their proof. The witnesses to the will were examined on behalf of the defendants and satisfactorily established the due execution of the will. One Fanny Lichtenstein, called as a witness for the defendants, was cross-examined as to the- occurrences which she witnessed in the home of the decedent on the day of the execution of the will, and in answer to a question she testified that she had not seen Pincus, one of the subscribing witnesses to the will, in decedent’s apartments on that day; that there was no one in the room with decedent except Arnstein, the other subscribing witness, and that she had not seen Pincus in the room with them at any time. But it appeared further from her examination that she had accompanied testatrix into the music room of the house before Arnstein arrived, and that she then went into the kitchen and remained there quite a while. It does not appear that she ever returned to the music room or any other-room while the parties were there. This is in no way contradictory of the testimony given by the witness Arnstein, who had drawn the will and who testified that after he had read it to decedent and she had told him the will was satisfactory,, he went into another room and there found the witness Pincus, who then came with him into the room occupied by the testatrix, whereupon the executed the will. The witness Pincus corroborates the testimony of Arnstein as to what occurred at the time the will was executed, also as to his entering the room and acting as witness in response to the request from Arnstein. They both swear that the will was executed in the room occupied by testatrix as a bedroom, and there is no testimóny'as to the relative position of the bedroom and the music room, nor is there any proof that the witness Lichtenstein went into the other rooms upon the same floor, nor does she undertake to testify who occupied the other rooms. It. is clear that upon this proof, there being no other testimony in the case as to the due execution of the will, no issue was presented for the jury upon this point, and when, at the close of the entire case, defendants’ counsel moved the court to withdraw from the jury any question as to the due attestation and execution of the paper, that motion should have been granted. • There was but one question submitted to the jury.: “Is or is not the writing produced the last will of Helena Metzger ? ” and that, of course, involved the consideration of all three of the issues raised by plaintiff. The learned court charged the jury very fully and very fairly upon the issues involved, and, among other matters, clwged them at length upon the issue of the due execution of the will; and while he expressed the opinion that the jury would not have very much trouble with that question, still it -was one of the three issues, upon any one of which the jury, under the charge, might predicate a verdict for plaintiff. It is clear that defendants were prejudiced and subjected to an undue burden when the three issues were submitted to the jury, any one of which, if the finding was adverse to them, would justify a verdict for plaintiff, while there were actually but two issues which they were called upon to meet. It is impossible now to tell whether the jury found for'the plaintiff upon one or all of these issues, in the absence of the special verdict. It has been held by this court in Buchanan v. Belsey (65 App. Div. 58) that in the absence of a special verdict, where three issues are submitted to the jury, as to one of which a verdict for plaintiff is against the weight of evidence, a judgment for plaintiff must be reversed. In this case, therefore, the order granting the motion to set aside the verdict and for a new trial must be affirmed, with costs to the respondents Metzger. Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred. Order affirmed, with costs.