The conflict of evidence in this case is not such as to warrant the decree of the surrogate. The testimony of James D. McKinley, a relative of the testator, interested in the estate, and who is the only witness in favor of the contestants in reference to the execution and publication of the will, is not afñrmative in its character, and is not, therefore, entitled to the consideration which it would otherwise command. It is, substantially, that he did not hear anything said by the testator at the time the will was signed, although he thinks he would have heard *296anything that was said, and that he did not hear done, what three witnesses, who are all disinterested, say was done, namely, the reading of the will, in whole or in part, in the presence of the testator. I am aware of the importance of the rule, that when there is a conflict of evidence, the decision predicated of it should not he disturbed, in the absence of strong grounds therefor; but in this case I think the evidence in conflict is so inferior, when compared with that given for the proponent, in quantity, quality and disinterestedness, that the decree of the surrogate should be reversed, and a feigned issue ordered, to try the question whether the will was executed and published by the testator as his last will and testament. I think this the better course; although in the cases of Peck v. Cary, (27 N. Y. Rep. 9,) and the Matter of Borman’s will, (54 Barb. 276,) which present many coincident features attending the execution of the wills considered, the courts passed upon the sufficiency of such execution. I entertain no doubt of the power of the court to direct the issue. (See Mead v. Mead, 11 Barb. 661.)
The capacity of the testator to make a will was not -questioned by the surrogate. He arrested further evidence on that subject by the proponent; and we must assume that the only questions passed upon by him were the execution and publication of the will by the testator. The evidence bearing upon the subject of the testator’s capacity developed the fact that he said, in conversations which demonstrated his intelligence, had with two persons after his will was made, that he had setled his affairs, and to one of them that he had appointed John S. McKinley, the proponent, to settle them.
For these reasons I think the decree of the surrogate should be reversed, and an issue framed, to be held at the circuit. •
Ingraham, P, J., concurred.