shortly thereafter this action was begun to adjudge the will invalid.

The grounds set forth in the complaint were as follows: (a) Lack of testamentary capacity; (b) undue influence; (c) fraud perpetrated upon the decedent.

The plaintiff introduced sufficient evidence to require the submission of questions a and b to the jury. There was no evidence whatever of fraud, except as fraud is said to be an element of" undue influence," and the trial court so declared, but it submitted that question also to the jury on the urgent request of plaintiff's trial counsel. The questions as submitted to the jury were as follows:

"1. Was the testator at the time of the execution of the will in question of sound mind and memory?

"2. Was the execution of the will in question procured by undue influence practiced upon the testator?

"3. Was the execution of the will in question procured by fraud practiced upon the testator?”

The jury were given a copy of the submitted questions, and were directed by the trial court to answer them in writing, and to sign their names to the paper. Some time after they retired, they returned to the court and handed up the paper in question, announcing that they had agreed upon a verdict. The record then shows a colloquy as follows:

"The Court: Gentlemen, you have all signed the paper but you have not written in the answers to the questions. Mr. Foreman: We answer yes to all of them. By Several Jurors: No, we don't agree on number three. The Court: I tried to

make it plain to you that you are to answer these questions and should write the answer to them on the paper submitted; but you don't seem to understand it or I did not make it plain to you; do you yourself understand that you find this will a valid will or an invalid will? The Foreman: Yes, invalid.

The Court: I think you had better retire again and write in the answers to the questions then."

They retired and shortly returned, and again handed up the paper, and the record shows a colloquy as follows:

"The Court: Now, gentlemen, since you were in before you seem to have changed your mind upon the first interrogatory did you announce it incorrectly at first? Mr. Foreman: We find for the plaintiff. The Court: Do you mean to say, gentlemen, that you don't understand the questions propounded to you; the first interrogatory is, 'Was the testator at the time of the execution of the will in question of sound mind and memory,' and when you were in here before you said yes, you answered it yes. Mr. Foreman: If you remember I said we answered yes to all, and I was under the impression that that was right as we did not pay much attention to that part of it; when we got back in the room they all said in order for the verdict to stand it should be put in no. The Court: Do you determine that question by saying that you decide that this testator was insane at the time of execution of this will? Mr. Foreman: No, we did not. Mr. McCaffry: I except to your Honor's use of the word insane; it is simply a question of unsound mind and memory. The Court: I will withdraw it then; I simply used that to call their attention sharply to it — do you make a distinction, gentlemen, between insanity and unsoundedness (sic.) of mind? If you do I withdraw it. Mr. Foreman: I can only speak for myself I can see that it was a mistake to write in no. The Court: You intended it to be yes? Mr. Foreman: Yes, I think the jury will so understand it. The Court: Gentlemen of the jury, do you desire to find that this testator was of sound mind and memory at the time of the execution of this will or of unsound mind? By Several Jurors: Of sound mind. The Court: The next question is, Was the execution of the will itself procured by undue influence practiced upon the testator? and the answer is yes. Is that your verdict? Mr. Foreman:

1

Yes.

The Court: That this will was not his free act, but that some one procured it by undue influence, is that what you desire to find? Mr. Foreman: Yes. The Court: The other question you don't render any verdict upon, the one as to fraud? Mr. Foreman: No. No. The Court: Do you wish to step back again and change your answer to the first interrogatory - did the use of the word insane make any difference to you? If it. did I withdraw it; it is unsound mind. Mr. McCaffry: I except to your Honor's reference to insanity. The Court: I stated that I withdraw it; I withdrew it if it makes any difference to them."

The jury again retires and then returns into court and hands up the paper.

"The Court: I will read you the questions and your answers. 'Was the testator at the time of the execution of the will in question of sound mind and memory?' and the answer is 'Yes.' Is that you answer? Mr. Foreman: Yes. The Court: 'Was the execution of the will in question procured by undue influence practiced upon the testator?' and the answer to that is yes. Mr. Foreman: Yes. The Court: As to the third interrogatory, which I do not bother to read, you have been unable to agree upon ? Mr. Foreman: Yes. Judge VUNK: Now, your Honor, I move to set aside the verdict as contrary to law, contrary to the evidence and all-contrary to the weight of evidence and all the grounds stated in 999 of the Code which is applicable here. The Court: In view of the manner in which this verdict has been rendered and the testimony in the case I will grant the motion; I think in some way this jury has become muddled. Mr. McCaffry: Yes, I agree with your Honor that they have. The Court: I think it amounts practically to a disagreement."

The first answer of the foreman, as amended by the "several jurors," indicated clearly that the jurors had agreed to answer the first and second questions in the affirmative and had not been able to agree as to the third, all of which amounted to this,

that they had found that while the decedent possessed statutory testamentary capacity, the execution of the instrument had been produced by undue influence exerted upon him; and that, therefore, they, the jurors, found the instrument to be invalid as a will.

When they came into court the second time they had written in the answer "No" to the first interrogatory, and upon the trial justice calling their attention to the apparent inconsistency of that answer with their former oral declaration, a colloquy followed with the result that the jurors declared that they intended to find testamentary capacity, and their affirmative answer was taken to that, the first interrogatory. This confusion, if it be deemed such, was thus settled favorably to the defendants.

Upon their second return it appeared that the jurors had answered the second interrogatory in the affirmative, which answer was also their final answer upon their third return. In short, at no time upon either of their returns into court was there the least question or confusion upon the matter or point that the jury had agreed that undue influence was proven as a producing cause of the execution of the instrument. Indeed, I perceive in the record as a whole very little ground to charge the jurors with confusion as to the proper substantial answer to the first question, but merely for a time as to the form of such answer. However that may be, I cannot see in the record the least ground to impute to the jurors any confusion or doubt at all as to either the substance or the form of the answer to the second interrogatory. I think, therefore, that the learned trial justice was in error, at least as to the issue of undue influence, in concluding, as he expressed himself, that "in some way this jury has become muddled." Whatever muddling of the jury there was appears to me to have operated in favor of the defendants and perhaps to have aided in producing the find

ing of testamentary capacity, but not at all to have affected the jurors' finding of undue influence.

The order entered by the trial court recites that the verdict was set aside as "contrary to the evidence." contrary to the evidence." On the appeal from this order, the appellant contends that the verdict of undue influence had ample support in the evidence and should not have been disturbed by the trial court. The record on appeal is voluminous. I have examined it in detail. I am confident that if I had been the trial justice I would not have set aside the verdict of undue influence, nor would I have disagreed with the jury had they found lack of testamentary capacity. If courts can be influenced by local considerations --and some people think that to be the case frequently—such considerations were evidently strong on the trial of this action. The defendants were important people in Center Moriches; one of them kept a "general store" and was a justice of the peace and an employer of men in the contracting business. The plaintiff was a stranger. Yet the jury overcame this local atmosphere. As the jury did not find a lack of testamentary capacity I will not detail at length the evidence adduced by the plaintiff on this point except to state that considerable testimony was given to show that after the death of Sutherland's second wife his personal habits underwent a great change, and that he became slovenly and filthy in habits and appearance. Experts called by the plaintiff testified, in answer to hypothetical questions, that the decedent was undergoing progressive senile dementia and was incompetent to make a will. There was rebutting evidence on this point from the medical attendants of the decedents, his lawyers at Troy and in New Jersey, and the jury may well have hesitated to find him incompetent generally. Yet there is very strong evidence in the case that would point to incompetence at the time the wills were made, and this may be considered on the question of undue influence to the extent that it discloses the mental condition of the decedent. I would call