In re the Probate of the Will of Horton

I dissent. The power to direct a verdict in a contested probate proceeding is no greater than in a law case. “ The procedure on trial by jury in the Surrogate’s Court has been assimilated to the procedure on jury trials generally.” (Matter of Burnham, 234 N. Y. 475, 477-478; see, also, Hagan v. 8one, 174 N. Y. 317, 323; Matter of Whipple, 294 N. Y. 292.)

To uphold the order and decree appealed from, we must, therefore, hold that the evidence presented by the contestants, (1) , to refute appellant’s proof of testamentary capacity and, (2) , to establish objections based on fraud and undue…