Majority
p. 840In the Matter of Proving the Last Will and Testament of Mary Finnegan, Deceased, Late of Springfield, Queens County. Anastasia Hayes and Patrick Lowery, Appellants; Herbert Balser, as Executor, etc., of Mary Finnegan, Deceased, and Joseph B. Mitchell, as Executor Named in a Prior Will of Mary Finnegan, Deceased, Respondents.
Appeal from a decree of the Surrogate’s Court of Queens County admitting a will and codicil to probate upon a directed verdict. Decree, in so far as appealed from, affirmed, with costs to respondent Balser payable out of the estate. No opinion. Hagarty, Carswell, Johnston and Adel, JJ., concur; Lazansky. P. J.. dissents and votes to reverse and to deny probate to the will and codicil, with the following memorandum: The proof shows that the will and codicil were not published to McLellan, whose name is appended as a witness thereto.