(dissenting). I dissent and vote to deny probate
of the alleged will on the ground that the testimony establishes that the decedent did not possess the mental requisites of testamentary capacity. I am also satisfied that the surrogate erroneously excluded the testimony of Doctor Cummins. In my opinion the contestant is a “ party in interest ” within the meaning of section 354 of Civil Practice Act and had a right to waive the privilege as to the doctor’s testimony. (Matter of Smith, 95 N. Y. 516.)
Decree affirmed, with costs to the petitioning executor, Frank T. McDonald, respondent, payable out of the estate.