In re the Estate of McCabe

Foley, S.

Upon the call of the calendar contestants moved orally for a separate and immediate trial of the sixth and thirteenth framed issues as to whether the alleged lost will of 1915 was in existence at the time of decedent’s death, or was fraudulently destroyed during his lifetime. Code Civ. Pro. § 1865, now Surr. Ct. Act, § 143. A subsequent will and codicil, dated *6381918, were rejected upon the finding of the jury that the testator lacked testamentary capacity. An appeal was taken and is now pending before the Appellate Division. The contestants contend that a final determination of…