I dissent and vote to reverse the decree setting aside the verdict and admitting the will to probate. There was substantial and ample competent evidence of the testamentary incapacity of the testator as affecting the contestant which required the submission of the case to the jury. Such submission as made by the learned surrogate merits approval. That the testator suffered from delusions regarding the contestant for several years prior to the first disinheriting will seems to have been established by a large number of lay witnesses as well as medical experts. The inferences that were to be drawn Were for the jury, as is evidenced by the widely divergent views, based upon inferences, of the respective counsel on this appeal. It was not a question of law as to what the testator meant in his repeated references to the contestant’s purpose to kill him, covering a period of time long before the first disinheriting will. His meaning, in the circumstances, was a question for the jury. The attitude of the contestant with regard to the business in which he and the testator had been engaged for many years, evidently built up to the testator’s great profit by the industry and attention of the contestant, was a subject to be considered by a jury in the light of the persons surrounding the testator who were likely to profit from the testator’s business to the material harm and disadvantage of the contestant. I am satisfied that the proof did not establish, as a matter of law, any act upon the part of the contestant toward obtaining the foreign agencies, but that the placement of such agencies in the hands of the contestant Was the result of the free choice and desire of the foreign houses whose business interests were, in their estimation, likely to be imperilled if not cared for by the contestant. In American Seamen’s Friend Society v. Hopper (33 N. Y. 619) the testator’s *404wife had him arrested under a charge of assault and he Was obliged to give bail to keep the peace; and about the same time his wife left him alleging that he had committed violence upon her person and soon afterwards commenced an action for separation upon the charge of cruel treatment coupled with an allegation that it was unsafe for her to live With him. This conduct of the wife preceded her disinheritance by the testator’s will. And the court held that the testator was not justified in his act of disinheritance for the reason that the conduct of the wife was superinduced by his delusions affecting her. In the case at bar, the testator’s antipathy to the contestant, one of the natural objects of his bounty, was, I think, under the evidence, an insane delusion and he was not rendered compos mentis because the contestant sought, properly, to protect himself in the business which his labors had so largely built up. The case of the contestant could not have been affected by either the copartnership action or the contest of the mother’s will, as both of them were subsequent in point of time to the date of the last disinheriting will. The inclusion of the testator’s grandchildren in his declaration of disinheritance, wholly unnecessary, was a strong indication of the workings of an abnormal mind. I think that the case Was properly disposed of by the surrogate’s submission to the jury, and that he should not have set aside the verdict and directed probate of the will. When there is substantial evidence creating a question of fact in a will contest, the law gives the contesting party a right of trial by jury, and of this he should not be deprived by an admission of the will to probate contrary to a jury’s verdict that there Was a real and proper basis-for the contest.
Decree of the Surrogate’s Court of Suffolk county affirmed, with costs payable out of the estate to all parties appearing and filing briefs in this court.