We believe that the facts established by the objectant were sufficient to go to the jury on two issues and hence it was error to direct a verdict admitting the will to probate. On the question of whether the testator understood the document to be his will, the proof was that the testator was born in Slovakia, came to this country in his maturity and spoke the Slovak language. There was testimony from reputable, disinterested witnesses that he spoke exclusively in that tongue at his work, in his home and in his church. His reading matter consisted of newspapers and magazines in that language. The learned Surrogate ruled that these witnesses failed to show he could not speak English. It is obviously impossible to prove a negative. The exclusive use of his native language, with the only proof to the contrary coming from sources interested in establishing the contrary, raises an issue.
On the issue of undue influence, it was shown that the will was made when the testator was in a nursing home as the result of a paralytic stroke. His wife was hospitalized with a terminal illness. The will makes no provision for the natural objects of his bounty (after his wife). The legatees had, in some unexplained manner, gotten control of his bank account through a power of attorney, and when he became acutely ill of the pneumonia from which he died, they failed to provide funds for private hospital care so that he had to become a patient in a public ward of a city hospital. The distress this caused the aged and feeble testator and his inability to understand why he should be so humiliated when he had funds to take care of himself, indicate that the control of his assets exercised by the legatees was obtained without his consent. The same would apply to his testamentary dispositions. At the very least, the testimony raises an issue to that effect.
The directed verdict should be set aside and a new trial ordered.
Valente, J. P., Stevens and Bastow, JJ., concur in Memorandum; Steuer, J., dissents in opinion in which McNally, J., concurs.
Decree of the Surrogate’s Court, New York County, admitting decedent’s will to probate, affirmed, with costs to the respondent.