In this action by the surviving spouse of a deceased public school teacher to set aside the retirement application of the deceased by reason of her mental incompetency, the defendant Teachers’ Retirement Board of the City of New York appeals from a judgment entered after trial declaring null and void the retirement application and granting judgment against defendant for the amount of the reserve standing to the credit of the deceased at the time of her death on April 8, 1965.
The proof was insufficient as a matter of law to establish that the decedent was mentally incompetent to execute her retirement application and select a retirement allowance. She was never adjudicated an incompetent and at no time required hospitalization. The testimony of her psychiatrist was lacking in probative value since it failed to show any connection between his patient’s symptoms of involutional melancholia and mild cerebral arteriosclerosis and the choice made by the deceased of a maximum retirement allowance payable during her life.
Assuming that cognitive capacity is not the sole standard by which competence to contract is measured, but that competence is also to be measured by the ability of the contracting party to make a rational judgment, the choice or option selected by the deceased in the circumstances cannot be said not to have been a reasoned judgment. Some three days before the deceased appeared at the offices of the appellant Retirement Board on February 11, 1965 and executed her retirement application, she wrote to the board stating her intention of retiring on February 12 or February 15: “ In other words, just as soon as possible after I receive the information I need in order to decide whether to take an option or maximum allowance.” The letter then lists eight questions pertaining to the various alternatives available, expresses thanks for promptness in making the necessary calculations and closes with the statement that the writer would come to the office of the Retirement Board on Thursday, February 11. In the esoteric area of retirement options, this detailed, explicit and extremely pertinent list of questions reveals a mind totally capable of making a choice suited to meet the needs of the retiree and her family. And, when in fact the deceased did appear at the office of the Retirement Board on February 11 and made her choice of maximum payments for her life, further indication of her knowledge of the financial needs of her family is evidenced by the fact that at that time she took a loan for the maximum amount of $8,760.
The plaintiff, the husband of the deceased, failed to sustain the burden incumbent upon him of proving deceased’s imcompetence. Indeed, it may be fairly said, considering the deceased’s *141letter of February 11, 1965, the testimony of the Board of Education physician who examined and spoke with deceased shortly before she retired, and that of the employee who discussed with the deceased her choice of retirement options, that the greater weight of the evidence is with the defendant-appellant. (Paine v. Aldrich, 133 N. Y. 544, 546; Moritz v. Moritz, 153 App. Div. 147, 150, affd. 211 N. Y. 580; Beisman v. New York City Employees’ Retirement System, 275 App. Div. 836, affd. 300 N. Y. 580; Martin v. Teachers’ Retirement Bd., 70 N. Y. S. 2d 593 [Sup. Ct., 1947].)
The judgment should be reversed, on the law and the facts, and the complaint should be dismissed, without costs or disbursements.