Estate of Harney

STURTEVANT, J.

After the death of John Harney, John J. Garvey filed a petition asking that a certain document be admitted to probate as the will of the deceased. Julia Harney, the surviving widow, appeared and filed an opposition to the petition. The opposition was answered and a trial was had before the court sitting with a jury. The jury returned a verdict in favor of the contestant. The verdict consisted of two special verdicts. By the terms of the first one the jury found that the decedent was not of

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sound mind at the time the alleged will was executed and by the second verdict it found that he was acting under undue influence. From a judgment entered on the verdict the proponents have appealed and have brought up typewritten transcripts.

The proponents claim that the evidence produced by contestant was insufficient. Before proceeding to discuss the point further it should be noted that the parties proceeded on two distinct lines. In her case in chief, the contestant introduced proof tending to show that from the eighteenth day of April, 1928, until the fourteenth day of May, 1928, the date of the death of the decedent, that the decedent was in the last stages of the disease from which he died. Covering said period of time the contestant took the stand in her own behalf and testified to the things that she observed and she called certain intimate acquaintances who testified to things that they had observed and then she called certain doctors who testified regarding the examinations which they had made and the conclusions they formed after making said examinations. One of those doctors was a specialist in nephritis or Bright’s disease. Going further, she called another doctor whose specialties are nervous and mental diseases. To the latter her attorney propounded a hypothetical question based on the history of the ease as told by the witnesses just mentioned. In this manner she produced testimony to the effect that from April 18, 1928, the decedent was suffering from senile dementia with associated arterio-sclerosis. That said disease was progressing from day to day. That from these causes the brain cells had become dead and that on the twenty-sixth day of April, 1928, the decedent no longer had any mentality, but that at that time “he was a vegetable, no mental capacity.” On the other hand the proponents called as witnesses the two witnesses of the will, the executor named in the will, the attorney who drew the will, and others. From said persons the proponents elicited testimony to the effect that during the afternoon on which the will was drawn and at the particular time at which it was drawn and signed, they talked to the decedent and he talked to them or in their presence, and from said conversation they formed the opinion that the decedent was of sound mind. If the jury believed the testimony given by the witnesses for the contes