Majority
p. 681In the Matter of the Probate of the Last Will and Testament of Emma B. Johnson, Deceased, as a Will of Real and Personal Property. Norman W. Roe, Petitioner, Appellant; Norma Dare Owen and George R. Dare, Contestants, Respondents. The Long Island College Hospital and Others, Legatees, Respondents. First Department, November 17, 1941.
Harold R. Medina of counsel [Ralph O. Willguss with him on the brief; Lamar Hardy, attorney], for the appellant.
Frederick M. Schlater of counsel [DeForest & Elder, attorneys], for the contestants, respondents.
Bruce Bromley of counsel [Samuel B. Stewart, Jr., with him on the brief; Blake & Voorhees, attorneys for The Long Island College Hospital; Coombs & Wilson, attorneys for the Industrial Home for the Blind; Gerald Fitzgerald, attorney for Saint Faith’s House; Sullivan & Cromwell, attorneys for Pansy Lee, Maren Lee and Betty Lee], for the respondent legatees.
The order should be modified to include on the separate trial any issue relating to the due execution of any testamentary paper or papers executed by the deceased on September 8, 1937, reserving to the parties the right to contest at the later trial the mental competency of the deceased and any question of fraud or undue influence, and, as so modified, affirmed.
Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.
Order unanimously modified as indicated in opinion, and, as so modified, affirmed. Settle order on notice.