M'SORLEY vs. M'SORLEY. of the issue. As all the powers of that officer are now vested in the Supreme Court, either course might be within the powers of that Court; and until a final decision upon the merits shall have been made by that Court, no order can, with propriety, be made by the Surrogate, as asked for by the petitioner. What may be the result of such action on the part of the Supreme Court, it is not for me now to decide. Whether the Surrogate would be bound, upon the finding of the jury being certified to him, to follow the provisions of the statute which regulate such proceedings when pending before the Circuit Judge, or whether the Supreme Court, after the trial of such issue, should make a final judgment or decree in the matter, must be left for future determination. The questions under consideration are by no means free from difficulty; but my conclusion is that my duty is best discharged by a denial of this application. MCSORLEY vs. McSORLEY. In the matter of proving the last will and testament of JAMES MOSORLEY, deceased. THE testator was a man of intemperate habits, and at times his conduct indicated signs of mental aberration. A will was prepared for him when in a state of insensibility, without any previous direction or knowledge, during a temporary revival to a state of consciousness, its execution was not attempted-but on a relapse, it was engrossed, presented to him and read, and he was asked if it was right, and he answered, Yes. It was then executed, the decedent making affirmative answers to the formal questions put to him touching the testamentary declaration, &c. Held that under the circumstances and in the absence of any clear and satisfactory proof of instructions and intentions, probate must be denied. M'SORLEY vs. M'SORLEY. THOS. L. WELLS, and WM. R. STAFFORD, for Executor. I. The testator had testamentary capacity. 1. His habit of drinking had not destroyed or impaired his capacity to do business or execute a will. The law presumes him capable till the contrary is made out. The opposing witnesses testify to no facts showing loss of mind. They give their opinions only, formed from occasional conversations and eccentric behavior. (2 R. S., p. 2, §1; 5 J. R., 144; Jackson v. King, 4 Cowen, 207; 26 Wend., 293, ib. 317; 21 Wend., 142; 24 Wend., 85. The testimony in favor of his capacity is supported by facts, and the opposing witnesses corroborate it by proving business transactions and conversations with him, as a man of sound mind. The opinions of witnesses as to mental capacity, unaccompanied by facts and circumstances to support such opinion, are entitled to very little weight. (26 Wend., 291, 309, 298.) 2. His mind was sound and clear, and he was calm and collected when he executed the will. There is no evidence that he exhibited any loss of mind during the last week of his life; on the contrary, the majority of the witnesses. show that he had recovered from his attack, and fully understood what was transpiring around him. II. The will was executed with all the formalities required by law. III. The will was drawn according to his directions, freely expressed to the witnesses, McIntosh, Caldwell, Mrs. McAdorey and McCann, and afterwards reiterated to Stafford. IV. There is no proof of undue influence. There was M'SORLEY vs. M'SORLEY. no importunity on the part of his wife, or by any person on her behalf. There was no deception or concealment in preparing and executing the will. It was done openly in the day, and where many persons were continually coming and going. It was in conformity with his previous arrangements, and with his own expressed wishes. There was no fraud practised to obtain the will. No art or effort was used to prevent his friends and relatives having free access to him during his illness. The subscribing witnesses had no interest in his estate, and can neither gain nor lose by the result of this matter. V. The will was a reasonable and fair disposition of his property. That property was acquired by the joint efforts of his wife and himself. He had no immediate relatives except his brother, residing in Pennsylvania, and cousin, Thomas McSorley, of the Eighth-avenue, the contestants, with both of whom he was on unfriendly terms, and whose comfortable circumstances did not require his bounty. The will furnishes no reasonable ground of complaint that he preferred his wife to relations with whom he had no friendly intercourse, and to whom he owed no obligations. (Brown v. Betts, 9 Cowen, 208; 2 Hill, 569, Germond vs. Jones.) T. J. GLOVER, for next of kin and heirs. THE SURROGATE. The will propounded for probate, gives all the estate of the deceased, real and personal, to his wife, Catharine McSorley. He left no children surviving, and his heirs-at-law and next of kin consist of a brother, a sister, and the children of a deceased sister. During the pendency of the present contest, the widow has died, leaving a will disposing of her property, which has been duly proved. M'SORLEY vs. M'SORLEY. The contestants have endeavored to establish James McSorley's incompetency to make a will. I will consider that evidence after having first adverted to the circumstances attending the execution of the instrument under consideration. On Thursday, the first of May, about noon, the decedent was taken with a fit, and was carried to his bed insensible; on Saturday, the 10th May, about 5 or 6 o'clock in the afternoon, the will was executed, and on Tuesday, May 13th, he died. On Friday, the 2nd of May, whilst he lay in a state of insensibility, a will was prepared for execution, by his counsel, but no attempt was made to have it signed. The instrument was left with Mrs. McSorley, with directions as to the mode of execution, in case her husband should revive so as to be able to make his will.The evidence shows that in the ensuing week he so far recovered as to get up, with assistance, and to converse with his family and friends. He then relapsed, his counsel was sent for, and the will executed. Mr. Stafford gives the following narrative of the transaction. He states that on the 2nd of May, he went to McSorley's house "to get him to make an affidavit," and learned that he had had a fit and fallen from the stoop on some stones. He found him insensible. McIntosh and McCann, friends of McSorley, were there. The former introduced the subject of a will, saying there ought to be one drawn and ready; "the child was dead, and it was better to have the matter fixed. McCann was present and also alluded to it. I asked them both how the will had better be drawn, and they said there had been a will, and the property was left to his wife and child, and the child was dead; and I got the impression from what they said, that he wished, after his debts were paid, his wife should have his property." "I asked McCann, who had better be named as executors. I think he told me a Mr. Harrison and Mr. McIntosh had been executors in some old will. I drew my own conclusions about who were the proper persons, and left out Harrison. McIntosh did not want to be executor. He told me he would not M'SORLEY vs. M'SORLEY. be executor. That was when I saw him afterwards, for he had gone away that night before I had finished drawing the will." After drawing the will, Mr. Stafford left it with Mrs. McSorley, giving her directions how it should be executed in case the decedent "came to his senses." He also states that when he drew the will, he was under the impression the decedent "had no immediate relatives,” an impression probably derived from nothing being said on that subject. He adds, "After drawing the will and leaving the house, I was walking down to the stage with McCann, and he asked me how I had drawn the will. I told him. He said it was not right. He had a brother in Western New York. It ought to be altered." "He said it was not right, his brother ought to have something. That was the first I heard he had a brother. I said, if he came to his senses he could have it explained to him, and I would draw another if they wished it." A day or two after, Mr. Stafford heard that McSorley was better, but nothing appears to have been done till the 10th of May. He says, in the afternoon of that day, McCann came to his office, bringing with him, as he thinks, the will previously drawn, and told him McSorley "was much worse, and they did not think he would live;" that he was "wanted up there right away." He inquired whether any alterations were to be made, and on being answered in the negative, asked why the will he had left had not been executed. McCann replied they would rather have him there "to see it was all right." McCann, at that time, also requested him to draw an agreement to be executed by McSorley, relative to a building he had erected on some premises leased by him of the decedent. Mr. Stafford says, "I knew of the agreement verbally before, and he wanted to know if I would not get it done when I went. He stated what the agreement was." After the will and the agreement were prepared, Mr. Stafford, as soon as possible, got in a stage, rode to the residence of the deceased, and was at once taken into the back room where he was lying in bed." He says, |