Majority
p. 737In the Matter of the Petition of John Nowak to Prove the Last Will and Testament of Rosalie Nowak, Late of the County of Kings, Deceased. Mary Betkowska and Others, Appellants; John Nowak, as Executor, Respondent.
Decree and order of the Surrogate’s Court of Bungs county, setting aside verdict
p. 738
of jury and directing probate affirmed, with costs to respondent, payable out of the estate. No opinion. Kelly, P. J., Manning and Hagarty, JJ., concur; Young and Kapper, JJ., dissent, and vote to reverse so much of the decree and order as directed probate, and also vote for a new trial, upon the ground that the failure of proponent to testify presents a clear issue of fact.