In re the Probate of the Will of Tropper

247 App. Div. 556 , 558). In my opinion there also are two errors in the charge to the jury which require a new trial: (1) At proponent’s request the Surrogate charged “ that the deceased must under the law leave property to his wife and if he does not that the wife is granted a right of election under the New York law.” Such instruction was irrelevant to any of the issues. Moreover, the right of election is limited and, in the absence of a complete and accurate statement as to the limitations upon the right, the instruction may well have mislead the jury into the belief that the proponent in any event was entitled to inherit the decedent’s estate upon his death. (Cf. Matter of Eno, 196 App. Div. 131 , 165-166, and Matter of Dalton, 185 Misc. 785 , 788.) This erroneous instruction was aggravated, rather than clarified, by the Surrogate’s subsequent refusal to charge, at contestants’ request, “that in the event the will is denied probate the widow will receive her intestate share of the estate, and that is the first $10,000. plus one half of the balance.” (2) In his main charge the Surrogate stated that “ undue influence must be established by such an array of circumstances as to make ” its “ existence * * * irresistible * * Such a charge is basically erroneous since contestants are required to establish undue influence only by a preponderance of the evidence. (Matter of Schillinger, 258 N. Y. 186 ; Matter of Wharton, 270 App. Div. 670 , affd. 297 N. Y. 671 ; Bunce v. City of New York, 261 App. Div. 838 ; Matter of Dowdle, 224 App. Div. 450 , 454, affd. 256 N. Y. 629 ; Matter of Dotterweich, 210 App. Div. 131 , 139-140; cf. Matter of Hill, 241 App. Div. 911 , and Matter of Phillips, 193 Misc. 1046 , 1049, revd. on other grounds, 276 App. Div. 821 , affd. 301 N. Y. 696 .) Although the Surrogate also charged the correct rule, the jury might well have been confused. (See Johnson v. Blaney, 198 N. Y. 312 .) Despite the absence of an exception to these erroneous instructions, this court in the interests of justice may direct a new trial (Beneke v. Palazzi, 256 App. Div. 946 ) particularly on an appeal from a Surrogate’s Court based upon the facts. On such an appeal th*> appellate court is not bound by the same technical rules of procedure as obtains in appeals from other courts. (See Surrogate’s Ct. Act, § 309; cf. Matter of Goldstein, 299 N. Y. 43 , 48; Matter of Burnham, 234 N. Y. 475 , 477, and Matter of Martin, 80 Misc. 17 , 20-24.) Nolan, P. J., dissents and votes to affirm, with the following memorandum: It is immaterial whether or not the jurors were correctly charged on the issues of fraud and undue influence. The evidence adduced on those issues was insufficient as a matter of law to sustain the objections interposed. (Cf. Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90 , 93-94, and Shotwell v. Dixon, 163 N. Y. 43 , 52.) Appellants are in no position to urge that it was error to charge, with respect to the issue of testamentary capacity, as to the widow’s right of election under section 18 of the Decedent Estate Law. They acquiesced in the charge and requested a similar charge to the effect that the widow would be entitled to her share in the estate if the objections to the will should be sustained. In any event, no exceptions were noted to the charge, and the instructions given became the law of the case. (Leonard v. Home Owners’ Loan Corp., 297 N. Y. 103 , 104-105.) The question of testamentary capacity was one of fact, which depended for its determination on the weight to be given conflicting evidence, and there is substantial evident in the record which is more than sufficient to sustain the jury’s verdict. [See post, p. 1013.]