In re the Probate of the Last Will and Testament of Lawler

From an examination of this record, we are of the opinion that sufficient evidence was adduced by contestants to require the submission to the jury of the question of testator’s mental capacity. (Matter of Roberts, 246 App. Div. 87.) We must, however, reverse the decree and grant a new trial because of the erroneous rejection of the testimony of a certain legatee as incompetent under the provisions of section 347 of the Civil Practice Act. *121Proponents called as a witness a legatee under the will of testator who had duly released and discharged the estate of testator of and from the payment of…