(dissenting in first above-entitled proceeding). The widow of Timothy F. McCarthy, also known as Charles F. McCarthy, offered his will for probate. The Public Administrator filed objections. Thereafter a special guardian, appointed for “ the infants and the incompetents herein, if any, who and whose names are unknown ”, filed objections similar to those interposed by the Public Administrator. The matter was submitted to a jury which, by a ten to two verdict, answered the following questions in the manner indicated: “No. 5. At the time of the execution of said paper on the 31st day of October, 2941, was the said Timothy F. McCarthy of sound mind and competent to dispose of his estate by will? Answer: No. No. 6. Was the execution of said paper caused or procured by the undue influence of any person or persons? Answer: Yes.”
Mr. McCarthy, a retired actor, died May 8,1942, in his eighty-third year. His first wife, to whom he had been married for about sixty-six years, died July 5, 1941. On January 8, 1942, he married a second time. His second wife had served as nurse during the illness of his first wife and after the latter’s death had continued to reside with the surviving husband as housekeeper or nurse.
There is no proof that Mr. McCarthy left any relatives. There is testimony that he stated that he had a sister. He had not been in communication with his family in Boston for over sixty years,, having become estranged when he adopted thé stage as his vocation, and he had not seen his sister during the period of the estrangement. Although diligent inquiry has been made, no surviving relatives have been discovered. Assuming the survival of the sister mentioned by Mr. McCarthy, in the absence of a will the second wife would be entitled to the bulk of the estate.
*156The instrument presented for probate was signed and executed by Mr. McCarthy on October 31, 1941. By. it he left his entire estate to the proponent of this will, who was then his nurse. Before executing the instrument dated October 31, 1941, it is important to note that two other wills making the same disposition of his property had been executed, one on October 6, 1941, on a printed form filled in in his own handwriting and one on October 22, 1941. The three wills are similar in all respects except that in each a different executor was named by Mr. McCarthy.
The testimony of the witness Mary E. Miner as to the circumstances surrounding the preparation and execution of the first will leaves no doubt that Mr. McCarthy was rational and had a clear and sustained intention to leave whatever he had to his nurse. This witness had known Mr. McCarthy and his first wife for a number of years and met them on the street two or three times a -week. There is nothing in the record to identify Mrs. Miner as a friend of the second wife or in any way interested. Following the death of his first wife and at the request of Mr. McCarthy, Mrs. Miner became a visitor to his home. She testified that during such -visits the nurse 11 would ask me if I would stay with Mr. McCarthy and keep him company while she went out to the store.”
On October 6,1941, while Mrs. Miner and Mr. McCarthy were alone in the apartment, he asked her what she thought about his making a will leaving all his property to his nurse (the proponent), to which Mrs. Miner replied that ‘1 it was all right. ’ ’ While Mrs. Miner was seated in the living room Mr. McCarthy went into an adjoining room, brought out a printed form of will, filled it out and asked her to read it but she declined to do so. Mr. McCarthy then told her that Mr. Dickson (the other witness) would be there that evening and asked her if she would stay so she could sign the will as a witness with Mr. Dickson. She remained and, after Mr. Dickson arrived later in the evening, the first will was executed.
All of the writing on this printed will, with the exception of the signatures of the witnesses, was in the handwriting of Mr. McCarthy. The will named “ Mr. Jacob Goodstein ” as executor; gave Miss Beatrice Grotty (the proponent of the will now under consideration) “ all personal Property and -what ever, cash I have left behind after my demise ”. The will referred to Miss Grotty as “a good friend of my late Wife (Maud & myself) ” and left to her discretion u the Masses ” to be said for him and the late Mrs. McCarthy. It cannot be said that the *157execution of this will was the result of any plot or conspiracy between Mr. Paley and the proponent, for the reason that Mr. Jacob I. Goodstein, at that time Mr. McCarthy’s attorney, was named as executor and Mr. Paley was not mentioned in the original will. The latter’s name was subsequently written above that of Mr. Goodstein as executor.
Mrs. Miner also witnessed the second will. She testified that three or four days before October 22, 1941, Mr. McCarthy told her that he had had Mr. Paley, his lawyer, up to see him; that he told Mr. Paley he wanted a legal will, and that the lawyer was going to draw a legal will for him. Mr. McCarthy asked Mrs. Miner if she would “ mind again to sign it ”. She said “ Certainly.” On October 22d she arrived at the McCarthy home in the afternoon as usual and remained until the evening. When Mr. Paley, the attorney, arrived he produced the will from his brief case, gave the original to Mr. McCarthy and a copy to each of the witnesses; the attorney asked Mr. McCarthy to read the will. Mrs. Miner asked the attorney to read it aloud so that the witnesses who had copies could follow him as he read. The will was read aloud and Mr. McCarthy then signed and it was properly witnessed by the two witnesses. Mrs. Miner was not a witness to the third will which was offered for probate, but the testimony of the witnesses to that will establishes that this too was read and Mr. McCarthy stated he understood it and that its terms expressed his wishes.
Max Paley, the attorney who prepared the second and third wills, corroborated Mrs. Miner as to the reading and execution of the second will. He testified also to the reading and proper execution of the third will. Mr. Paley did not learn of the first will until this proceeding had been instituted. As to the preparation of the second will, his testimony is that Mr. McCarthy gave him his ideas as to what he, Mr. McCarthy, wanted, stating that his first wife had promised the nurse that, if she looked after Mr. McCarthy after she (the first wife) had gone, she would be repaid; that it was his wish, also, the-same as his first wife’s, to see that she was repaid for what she was doing and that he wanted to give everything he had to her. At Mr. McCarthy’s request, Mr. Paley consented to being named executor. Mr. Paley further testified that the change of executor in the third will was made because Mr. McCarthy asked him to make the change for a sentimental reason. Mr. Paley’s testimony is that all instructions about the wills were given by the testator and that he never talked with the proponent about the wills or any changes therein.
*158The question of fraud was withdrawn from the jury is was the issue as to Mr. McCarthy’s knowledge of the contents of the instrument, the latter question being withdrawn as being included in the question of competency. The questions submitted to the jury related to testamentary capacity and undue influence.
In July, 1941, at the suggestion of the Actors’ Fund of America, Mr. Jacob I. Goodstein wa,s retained by Mr. McCarthy to serve as attorney for him as executor of the will of his first wife. As late as October 21, 1941, Mr. Goodstein dealt with Mr. McCarthy as a person qualified to discharge the duties incident to the handling of an estate; he raised no question of mental capacity until Mr. McCarthy, alarmed at what he believed was Mr. Goodstein’s unnecessary retention of savings bankbooks, attempted formally to discharge him. Mr. Paley, as attorney for Mr. McCarthy, moved to fix the fee of Mr. Goodstein as attorney for the executor of the estate of the first wife and then, for the first time, Mr. Goodstein raised the question of Mr. McCarthy’s competency. This was not until November 14,1941.
There then followed what has been characterized by the app'ellant as the inquisition of November 24, 1941, when the law assistant of the Surrogate presided at a hearing in the home of Mr. McCarthy. This hearing took place six weeks after the first of the three wills had been executed and three and one-half weeks after the last will, the will noiv offered for probate, was made. Other than the testimony of what occurred at this hearing when Mr. McCarthy was confused, as shown by some of his answers, there is no direct proof of mental incapacity at any time. It may well be that the attendance at his home of a delegation, including the law assistant to the Surrogate, a stenographer, Ms physician,‘three attorneys (one of whom he had recently discharged) and the lengthy questioning which ensued in the presence of his physician, were sufficient to cause a man over eighty years of age to become nervous and confused.
Many of the witnesses called by the contestants positively-stated that Mr. McCarthy was rational at all times.
Reverend Joseph A. Heaney testified that he knew Mr, McCarthy for perhaps six years and that he talked to Mm frequently up to August 25,1941, when Mr. McCarthy moved from West 176th Street to West 148th "Street, New York City. He said that in his opinion Mr. McCarthy was “ rational ”, that Ms mind was clear, that “ He was capable of forming a judgment ” and “ he was most clear in his talk to me, he impressed me very favorably.”
*159Reverend John F. Warren testified that he knew Mr. McCarthy and his first wife for four or five years. He stated that it was on his advice that Mr. McCarthy moved from his home on West 176th Street in August, 1941. Thereafter and on three occasions (once by messenger and twice by mail) Mr. McCarthy asked Father Warren to visit him at his West 148th Street home. Mr. McCarthy later requested Father Warren to perform the marriage ceremony, which he did on January 8, 1942, after the marriage license had been personally obtained by Mr. McCarthy. Father Warren testified that he had attended Mr. McCarthy up to the day before his death; that he knew him intimately and that Ms acts and conversations impressed Mm as absolutely rational.
Dr. William F. McTague, called by contestants, testified that he met Mr. McCarthy when the latter called upon him in June, 1941, for the purpose of having the doctor call to see his wife who was ill. He stated that he urged the elderly couple to hire somebody to help them — not so much a nurse as one to render general care and housekeeping. He noticed that the house “ was very dusty and dirty and neglected, very much neglected,” and Mr. McCarthy “ looked like a neglected old man.” After the death of his first wife, Mr. McCarthy moved to West 148th Street and Dr. McTague then noticed that the old man was ‘ ‘ cleaner ’ ’ and the apartment was kept in “ good condition, clean condition, and bright and cheerful. ’ ’ He testified that the illness for wMch he treated Mr. McCarthy did not have any direct effect on his mental condition, that there was no marked hardening of the arteries. He further stated that Mr. McCarthy was rational continuously from June, 1941, when they first met, until May, 1942, when he died, with the single exception of his confusion on November 24, 1941, more than three weeks after the proposed will was executed. Under pressure on the part of the trial court, Dr. McTague reluctantly admitted that some of Mr. McCarthy’s answers at the November 24,1941, hearing were irrational. He characterized the condition of Mr. McCarthy at that time as temporary confusion.
Samuel S. Fein, the druggist who filled prescriptions for Mr. McCarthy, testified that the latter would visit Mm at Ms place of business sometimes every day, sometimes every other day and sometimes a couple of times a week, and engage in conversation; that Mr. McCarthy would be left by his nurse in Fein’s store while she went out to do some shopping. Fein always greeted Mr. McCarthy and on three or four occasions had talks with Mm about Ms stage career. TMs witness testified that the acts and conversations of Mr. McCarthy were rational.
*160Eli Fein testified that he was the son of Samuel S. Fein. He, too, was a druggist and occasionally he saw Mr. McCarthy in the drug store. He was also a notary public and in September, 1941, he notarized Mr. McCarthy’s signature on some papers. In his opinion, Mr. McCarthy’s conduct was rational.
In addition, the superintendent of the apartment house in which Mr. McCarthy resided, the barber who shaved Mr. McCarthy, and several other witnesses were of the opinion that although old, Mr. McCarthy was, in all respects, rational.
The aged Mr. McCarthy was probably lonesome after the death of his first wife, with whom'he had been so closely associated for over sixty years. He may have desired assurance that the nurse who had taken care of his wife in her illness would take care of him for his few remaining years and, having no relatives, was quite content that she should take his entire estate. Father Warren testified that Mr. McCarthy praised the proponent for her kindness to him and said if he possibly could he would like to repay her. It is true that this old man married a woman many years younger than himself, but many other old men, desiring companionship and the care of a capable woman, have taken the same course and have not been considered irrational for so doing.
On the other hand, there is some testimony of avarice on the part of the proponent. Avarice is not uncommon, in fact it is a weakness of human nature that is prevalent. A witness testified that on one occasion soon after the death of his first wife Mr. McCarthy locked the proponent out of his apartment and stated he did not want her there, and that, when the superintendent said he had no authority to admit her, she went through another apartment and gained access to the decedent’s apartment by way of a fire escape. Other witnesses testified that the proponent stated that she was staying on whether she was wanted or not1 and, if she was not paid, she could recover from the estate. Following the marriage on January 8, 1942, the bank accounts in the individual name of Mr. McCarthy were changed to a new account in the name of Mr. McCarthy and his new wife as joint tenants with survivor-ship, and shortly after his death these accounts were the subject in part of withdrawals and in part of transfers of the balances to her in her individual name. It is important to note that although the proponent is charged with being avaricious, she made no withdrawals from the bank accounts of the deceased under the power of attorney which she had received from Mr. McCarthy on October 7, 1941.
*161The testimony in the record establishes that Mr. McCarthy was rational at the time of his marriage to the proponent on January 8, 1942, more than two months after all three wills had been executed. The testimony and the evidence show that Mr. McCarthy personally attended at the office of the city clerk and obtained the marriage license after answering the necessary questions, which required a clear mind to enable him to give the proper information; he took the initiative in arranging for Dr. McTague to take Wassermann tests and also arranged with Father Warren for the wedding ceremony. The direct proof also establishes that Mr. McCarthy was rational on the day he executed the will offered for probate, which was similar, except for the executor named therein, to the two earlier wills executed by him.
The contestants conceded that Mr. McCarthy was competent during the early part of September, 1941. As to this there appears to be no question. In fact, the Surrogate said: “ * * * You have a concession here that he was competent up to at least August, 1941, until the time he got severely ill. * * * . Perhaps until September, the contestants all concede that, early September.”
Correspondence dated September and October, 1941,* between Mr. McCarthy and Mr. Goodstein, who now contends that the former was not competent to make a will, conclusively establishes that during those months Mr. Goodstein considered Mr. McCarthy rational and competent.
In a letter dated September 10, 1941, Mr. Goodstein sent Mr. McCarthy what he called a “ non-military service affidavit ”; he requested Mr. McCarthy to sign it “ at the place marked by your initials and go before a Notary Public and have it sworn to and return to me promptly.” In the same letter he asked Mr. McCarthy to “ fill in what you believe to be the present age of Mrs. Farrell,” a sister of testator’s first wife residing in Australia.
On September 16, 1941, Mr. Goodstein again wrote to Mr. McCarthy. This time he asked the latter to execute an affidavit “ which the Surrogate Court requires.” He said: “ This affidavit refers to the letter which Mrs. McCarthy wrote and which was in the safe deposit box and which you will recall stated that none of her relatives in Australia were to receive any of her property. Will you please sign this on the place marked by your initials, have the same sworn to before a Notary Public and return to me at once.”
*162Mr. Goodstein wrote Mr.- McCarthy on September 24, 1941, informing him that.Mrs. McCarthy’s will had been probated and that Mr. McCarthy had been appointed executor of the estate. He informed Mr. McCarthy that the safe deposit box was to be opened September 29, 1941, and asked Mr. McCarthy to be present at that time. Mr. McCarthy was present on that occasion as requested. In the same letter Mr. Goodstein stated that “ there are several matters concerning the estate which I should like to talk to you about personally ” and he asked Mr. McCarthy to telephone and make an appointment.
As late as October 21, 1941, Mr. Goodstein wrote a letter to Mr. McCarthy containing, in part, the following: “ It will be necessary for you to go to the Corn Exchange Bank and to open Mrs. McCarthy’s box in order to obtain the United States Postal Savings certificates which will have to be delivered to the post office department for surrender in order to obtain the money therein.
“ Will you please have Miss Crotty call me and let me know when it will be convenient for you to go so that Mr. Wiener can meet you, and at the same time, have some of the other papers signed. * * * .”
The following day, October 22, 1941, Mr. McCarthy wrote a letter to Mr. Goodstein on the letterhead of “ Max Paley, Attorney at Law, 545 Fifth Avenue, New York.” At the bottom of the letter Mr. McCarthy acknowledged his signature before a notary public. The letter reads:
“ Re: Estate of Mary McCarthy.
Dear Sir:
This is to notify you that I have retained Max Paley as my attorney in the above Estate, and do not wish you to render any more services on my behalf in said Estate.
Will you therefore be good enough to turn over to Mr. Paley all papers, bank books, records, documents, etc. that you have in your possession.”
Mr. Goodstein testified that upon receipt of the above letter he directed his managing clerk, Mr. Isaac Wiener, “to go up and see Mr. McCarthy ”. Thereafter Mr. Goodstein received the following letter written entirely “ in Mr. McCarthy’s handwriting ” and addressed to “ Mr. Goodstein ” under date of “ Nov. 3rd 1941 ”:
“ Dear Sir,
When I spoke to Mr. Wiener today, I told him I did not write a certain letter — However it thoroughly expresses my desires — I signed the letter. It was prespared at my request. *163So pleace give all the Papers &c. to Mr. Paley, whom I told Mr. Wiener, I had alrready engaged to represent me in all matters
Very Truly Yours
Timothy P. McCarthy 545 W. 148 St.”
It should be noted that the letter of October 22, 1941, discharging Mr. Goodstein as attorney was written about two weeks after the execution of the first will which named Mr. Goodstein as executor and on the same day that Mr. McCarthy executed the second will. The letter discharging Mr. Good-stein was written and the second will was executed at a time when no question had been raised about Mr. McCarthy’s competency. From the language of his letters to Mr. McCarthy and the requests he made of Mr. McCarthy to execute various affidavits, Mr. Goodstein must have been firmly convinced that Mr. McCarthy was then a very rational and competent person.
In connection with the fact that the will offered for probate is almost identical in form with two prior wills executed at a time when there can be no question but that Mr. McCarthy was rational, attention is directed to Matter of Dunn (184 App. Div. 386). The court there held that a prior will made at a time when it is conceded that the testator was in full possession of his faculties has a bearing upon the question of the attitude of the testator toward his family and is admissible in evidence. At page 390 the court said: ‘ ‘ Where a will, made by a concededly competent person, is identical in its scheme with that of a subsequent will, varying merely in detail, and the details of which are not unreasonable or freaky, the natural inference would be that the later will was merely the result of maturer deliberation, not that it was the result of irrationality on the part of the testator, or fraud on the part of those who chanced to be benefited by the changes.”
On this appeal the proponent contends that she was not accorded a fair trial. She claims the Surrogate displayed “ open hostility ” to her and her attorney, that he interfered with the examination and cross-examination of witnesses and by his rulings and statements indicated that in his opinion Mr. McCarthy was incompetent to manage his own affairs, that Mr. Paley and the proponent were seeking to obtain Mr. McCarthy’s money and that undue influence was practiced upon Mr. McCarthy.
On that subject the record speaks for itself and discloses that the Surrogate participated actively in the trial, frequently *164taking over the examination and cross-examination of witnesses
The learned Surrogate also made comments and observations which are claimed to have been prejudicial to the proponent of the will, which need not be here set forth. A judicial officer • should not be indifferent and wholly negative during the progress of a trial, but there must be an attitude of clear impartiality. A trial judge should never fail to control the conduct of the trial nor hesitate to guide its expeditious and orderly procedure in the interests of justice. But in certain respects which the record discloses, the learned Surrogate, no doubt unwittingly and with the best of intentions, may have passed the boundary of judicial impartiality. For this reason, the judgment might be reversed. However, there are other grounds requiring a reversal of the judgment, and these will now be referred to.
Mr. McCarthy, as executor of the estate of his wife, moved, through his attorney, Mr. Paley, to have fixed the compensation of Mr. Goodstein for services rendered as attorney for the estate. In 'connection with that application, the Surrogate directed his law assistant to conduct an examination of Mr. McCarthy at the latter’s home. In explanation of that designation the Surrogate said: “ Under the law we have the power, as the Surrogate cannot go himself, to designate one of our law assistants to take our place and to take the testimony, and it comes back to us.”
The examination of Mr. McCarthy, so ordered, was held on November 24, 1941. Considerable stress has been laid on the testimony taken at that time. In his charge to the jury the Surrogate said: “ Whatever may be said of the other evidence in the case, it depends in great part upon the recollection of the witnesses, but what happened on November 24th at the house of Mr. McCarthy, when he was there examined, is a matter of official record, and you have heard the questions and answers that were given by him and the statements of the attorneys, and Mr. Kieran there, read to you. * * * So you may examine that testimony taken up there, which may be important to you to find out whether this man did not have any idea or orientation, that he did not recognize people.”
The opinion of the Surrogate refers to the examination in the following language: “ The minutes of that examination must have had an impressive effect upon the jury’s verdict for they showed an entire lack of orientation on the part of the testator at the hearing, mental confusion, misunderstanding of papers which he had signed and sworn to, * * * and other statements which impressed those who heard them as irrational.
*165“ Along with the other evidence in the case, the minutes of these proceedings strongly support the finding of the jury that the testator was of unsound mind at the time of the execution of the alleged will.”
On the trial of this proceeding, the contestants called Mr. Kieran, the Surrogate’s law assistant, as a witness. He testified in part as follows: “ Q. Mr. Kieran, did the questions and answers given by Mr. McCarthy which you heard in testimony .on November 24, 1941, at Mr. McCarthy’s home, impress you at the time as being rational or irrational? A. Irrational.”
The introduction of Mr. Kieran as a witness for the contestants, with the repeated emphasis on his official capacity as the law assistant to the Surrogate, and his testimony as to the mental condition of Mr. McCarthy are of doubtful legality. This is particularly so in view of the fact, with the stress laid upon it, that he acted as the representative of the Surrogate at the time of that examination. Had the Surrogate personally conducted that examination, the requirement that while acting as trial judge in the present proceeding he be wholly impartial would have precluded him from becoming a witness and testifying that in his opinion the answers of Mr. McCarthy were irrational.
This is an elementary principle which has been recognized in New York State since early times. (Morss v. Morss, 11 Barb. 510 [1851].) The opinion of Parker, J., who wrote for the court in that case, has been frequently quoted by the courts in other jurisdictions. Thus, in the case of Estes et al. v. Bridgforth (114 Ala. 221, 226), Coleman, J., writing for the Alabama Supreme Court in a contested probate proceeding, held that reversible error had been committed by allowing a probate judge to testify to a conversation had with the decedent upon the issue of the latter’s testamentary capacity. The opinion reads in part as follows: “ In the case of Dabney v. Mitchell, 66 Ala. 495, 503, this court used the following language: ' Though, as is said by Parker, J., in Morss v. Morss (11 Barb. 510), there is but little to be found in the books on the subject of the competency of a judge to testify in a matter pending before him, it is laid down as a general rule in the elementary books that he is incompetent, and, so far as we have found adjudications, they support the rule.— 1 Whart. Ev. § 400; 1 Greenl. Ev. § 364; Morss v. Morss, 11 Barb. 510; Ross v. Buhler, 2 Mart. N. S. (La.) 312; McMillen v. Andrews, 10 Ohio St. 112.’ It is impossible to estimate the weight and influence of the testimony of a witness with a jury, in a cause in which the witness *166presides as judge. The written instrument, signed by the testator, was before the jury. Its weight was necessarily more or less weakened by the testimony of the judge.”
Other decisions to the same effect might be cited were it necessary. It seems .clear, of course, that what the learned Surrogate could not do, his oEcial representative would be disqualified from doing. No more could Mr. Kieran properly express before a jury his opinion concerning the testamentary capacity. of Mr. McCarthy, than could the learned "Surrogate. have so testified had he conducted the examination of Mr. McCarthy instead of Mr. Kieran.
The primary inquiry in this case is the testamentary capacity of Mr. McCarthy as of the date■ of the proposed will, October 31, 1941, not on November 24, 1941. That examination took place three and one-half weeks after the will offered for probate was executed. If admissible at all, the minutes of the examination on November 24, 1941, and testimony as to what occurred at that time, in view of the other evidence, were of little force and effect. In passing, it may be noted that while a qualified expert might be able to say that a described condition of irrationality or mental aberration on a given date was not of such a recent origin that a similar condition must have existed on a date a few weeks earlier, the testimony of a layman, not a qualified expert, that the speech or conduct of a testator on a given date was irrational, is irrelevant and incompetent as evidence of the mental condition of the testator on. a previous day, though only three weeks had elapsed. Irrational speech or conduct might occur under special circumstances any day without indicating, unless the character or quality of the speech or conduct was considered and described by a medical expert introduced as a witness, that the person was irrational on a previous date.
After the examination conducted by Mr. Kieran of Mr. McCarthy at the latter’s home, two hearings were held by the Surrogate on the matter of fixing the fee of Mr. Goodstein. The first was on'December 3, 1941, and the second was on December 22, 1941. At the latter time the Surrogate stated that he was “ convinced ” that Mr. McCarthy was incapable of “ handling his own affairs.” That statement is set forth in the minutes of those hearings which were placed in evidence in the record on appeal as Contestant’s Exhibit 26. -
On a proceeding to determine whether a will should be probated, particularly where testamentary capacity is an issue, minutes of a hearing containing a statement by the Surrogate that he was “ convinced ” that the testator was incapable “ of *167handling his own 'affairs ” should not have been admitted in evidence, particularly in view of the fact that the Surrogate never examined Mr. McCarthy and evidently did not meet him. Here we are confronted with the testimony of the Surrogate himself, excluded by the principle hereinbefore discussed. There is some uncertainty as to whether the minutes were actually taken to the jury room by the jury. However, they were admitted in evidence and in the normal course of conduct exhibits are given to the jury to be used as it sees fit in its deliberations. Due to that uncertainty, and because we may not speculate on what consideration the jury may have given to the minutes containing evidence clearly incompetent, the proponent is entitled, because of this error, to a new trial.
The proponent was prejudiced also by allowing the witness Groodstein to testify that the Surrogate had appointed a psychiatrist to examine Mr. McCarthy, which prejudice is emphasized by the suggestion of the Surrogate that the proponent had prevented access to Mr. McCarthy of which there is no testimony. The testimony is that Mr. McCarthy refused to submit to the examination, which was clearly his absolute right and offers no reason for criticism.
The jury reported that on October 31,1941, Mr. McCarthy was not of sound mind and not competent to dispose of his estate by will. It also found that the will was caused to be executed by undue influence. These findings are inconsistent. A finding of undue influence is distinct from that of testamentary capacity.
In Matter of Henry (18 Misc. 149) it was said at page 151: “ The issue of undue influence is quite distinct from that of testamentary capacity, yet the two are commonly found united and necessarily considered together; some authorities regard a partial incapacity as a prerequisite to the existence of undue influence. Schouler on Wills (2d ed.), § 226. The condition of the testator’s mind will'often determine whether a set of circumstances, ambiguous in their nature, amount to undue influence or not; the mental and bodily health of the testator will contribute to the determination of the question of whether or not he acted as a free agent. 27 Am. & Eng. Ency. of Law. 505.
“So the principal question involved in this contest is as to whether or not, at the time of the execution of the will, the testator possessed testamentary capacity.”
In Matter of Tymeson (114 Misc. 643) Surrogate Slater said at page 648: “ Proof of the evidence of undue influence always presupposes that mental capacity exists. Matter of Dunn, 184 App. Div. 386.”
*168In Matter of Dunn (184 App. Div. 386, 396) the following appears: “ The verdict of the jury, that the will was induced by fraud and duress, must rest in a large measure upon this testimony of Dr. Houghton. Fraud and duress presuppose the existence of a person mentally capable of making a will, and the testimony of Dr. Houghton shows the existence of this mental capacity; but it likewise destroys the entire force of Dr. McKenna’s testimony, based upon the theory of aphasia, and there is such a jumble of testimony, and the findings of the jury are so inconsistent with each other, that considerations of justice require that there should be a reversal of the decree.” 1 Page on Wills, Lifetime edition, chapter 10, section 185, page 369 contains the following: ‘1 Undue influence is said to presuppose mental capacity, and to require it as .essential to the existence of undue influence.” Thompson on Wills, Second edition, section 145, page 193 contains the following: “ It must be borne in mind, however, that a charge of undue influence in obtaining a will concedes the existence of testamentary capacity; and when a person is wholly devoid of capacity to make a will there is no room for the operation of undue influence in the execution of his will. ’ ’
In this connection it should be noted that in Matter of Bartholick (141 N. Y. 166) the only question considered was the right of the Surrogate to refuse probate to an instrument as a will o E real and personal property. It did not pass on the question of the effect of answers to incompatible questions.
Under the circumstances, I am of the opinion that the jury should have been carefully instructed as to the distinction between testamentary capacity and undue influence, with the instruction that, if testamentary incapacity was found, the inquiry need not be pursued further.
Prejudicial error was committed by the refusal to charge as requested that there is a presumption of sanity. In Delafield v. Parish (25 N. Y. 9) the court held that at common law and under our statutes the legal presumption is that every man is' compos mentis; that the burden of proof that he is non compos mentis rests on the party who alleges that an unnatural condition of mind existed in the testator; and that he who sets up the fact that the testator was non compos mentis, must prove it.
In Banker v. Banker (63 N. Y. 409) the court said: “ The presumption of sanity always exists — that being the normal condition of man.”
The Public Administrator is a creature of statute and his rights are limited by statute.. He is authorized to receive process *169in any proceeding pending in the Surrogate’s Court when service of such process on him for account of or in behalf of any known or unknown person is directed by the Surrogate, and in such proceeding to take any action in behalf of such person available to a party in interest in such proceeding. (Surrogate’s Court Act, § 136-z, subd. [19].) There is in this record no direction that process be served on the Public Administrator. His appearance, .therefore, would seem to be unauthorized and was properly objected to by the proponent. A special guardian had been appointed to act for unknoAvn infants and incompetents.
Assuming that the deceased lacked understanding at the time of the second marriage, that marriage is not, of course, void. It is voidable upon sufficient proof. (Domestic Relations Law, § 7, subd. 2.) But it is not subject to attack by anyone other than a relative. (Civ. Prac. Act, § 1137.) As has been pointed out, no relative of Mr. McCarthy has been found despite diligent inquiry. The marriage, however, may not be avoided by the. Public Administrator, Avhether or not he was entitled to appear in this proceeding. I am at a loss, therefore, to understand the purpose of a contest of a will leaving to the proponent just what under the circumstances she is entitled to by statute.
The verdict of the jury on the two questions submitted, in addition to being contradictory, is contrary to the weight of the credible evidence. The facts as particularized in this opinion demonstrate that justice requires a new trial. The contentions of the appellant may not be disposed of by generalities.
For the reasons stated, the verdict of the jury should be set aside, the decree appealed from reversed and a new trial ordered.
In the first above-entitled proceeding: Untermyer, Cohn and Callahan, JJ., concur with Does, J.; Martin, P. J., dissents and votes to reverse and grant a new trial in opinion.
Decree affirmed, with costs.
In the second above-entitled proceeding: Martin, P. J., Untbrmyer, Cohn and Callahan, JJ., concur.
Order unanimously affirmed, with $20 costs and disbursements. [See post, p. 836.]