Ivison v. Ivison

HATCH, J.

(dissenting). If we are to follow the rule announced in McDonald v. Metropolitan R. Co., 167 N. Y. 66, 60 N. E. 282, which we have held applicable to this class of cases (Phillips v. Phillips, 77 App. Div. 113, 78 N. Y. Supp. 1001), then I think that the appellant in this case presented a question of fact which required its submission to the jury for their determination. The question does not now rest upon the weight of the testimony, but bears solely upon whether there was any question of fact for the jury. It seems to me that the evidence was sufficient upon the question of the testator’s testamentary capacity to call for its submission to the jury within the rule of these cases.

The judgment should therefore be reversed, and a new trial granted.