In a proceeding for the probate of a will, the contestant appeals from a decree of the Surrogate’s Court, County of Queens, entered on a directed verdict, admitting the will to probate. Decree reversed on the law and new trial ordered, with costs to appellant to abide the event, payable out of the estate. The testimony as to the presence of the testator in the Municipal Court at the time when the proponent claims he was in the office of the attorney executing the will raised an issue as to its due execution. It was for the jury to say whether the deceased was present at the time the witnesses placed their signatures on the paper. However, upon the proof in this record the Surrogate could properly direct the jury to find there was testamentary capacity and a lack of undue influence. Nolan, P. J., Adel, Wenzel, MacCrate
and Schmidt, JJ., concur. [See 283 App. Div. 670.]