In the Matter of the Petition of Leon Wolf to Prove the Last Will and Testament of Bernard Herskowitz, Also Known as Bernart Herskowitz, Late of the County of Kings, Deceased. Leon Wolf, as Executor Named in Last Will and Testament of Bernard Herskowitz, etc., Deceased, Proponent-Appellant, Charles Hearst, Appellant; Isidore M. Margolies and Abe Hearst, Respondents

In the Matter of the Petition of Leon Wolf to Prove the Last Will and Testament of Bernard Herskowitz, Also Known as Bernart Herskowitz, Late of the County of Kings, Deceased. Leon Wolf, as Executor Named in Last Will and Testament of Bernard Herskowitz, etc., Deceased, Proponent-Appellant, Charles Hearst, Appellant; Isidore M. Margolies and Abe Hearst, Respondents. [MAJORITY] Decree of the Surrogate’s Court of Kings County, denying probate to a script executed by the decedent on May 22, 1939, on the ground that the testator did not possess testamentary capacity, in so far as appealed from, reversed on the law and the facts and a new trial granted, with costs to appellants to abide the event. An examination of the testimony relating to the issue of testamentary capacity discloses that a finding of want of such capacity is against the overwhelming weight of evidence. Of all the witnesses who testified for the contestants only two assumed to brand the decedent as having been guilty of conduct that was irrational. One of them who gave such an opinion furnished no evidentiary basis for it. The other one furnished a semblance of a basis for the opinion that the decedent had been irrational, and his testimony barely makes a jury question on the issue. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.