Dore, J.
Petitioner, proponent of a document claimed to be the last will of Timothy F. McCarthy, deceased, appeals from Surrogate’s decree denying probate entered on a general verdict after a jury had found special verdicts of lack of testamentary capacity and undue influence.
The conflicting evidence on the trial presented issues of fact on testamentary capacity and undue influence which were submitted to the jury for its determination; and as there is ample evidence to support the jury’s verdict, the decree entered thereon should not be disturbed unless there is found, as appellant earnestly contends, serious prejudicial error requiring reversal. The trial lasted four days; proponent called ten witnesses, contestants, fourteen; both sides adduced a great mass of evidence. Accordingly, only so much of the voluminous record will be summarized as is essential to intelligent understanding of the grounds alleged for reversal.
Timothy F. McCarthy, the deceased, lived with his first wife, Mary McCarthy, for sixty-six years. This appellant, then Beatrice Crotty, acted as nurse for Mary McCarthy for a week or two until Mrs. McCarthy’s death on July 5, 1941. Thereafter appellant remained in the home with McCarthy, as his nurse and housekeeper.
The gist of the testimony for the appellant was that at all times McCarthy was possessed of complete testamentary capacity, knew his own mind, was vigorous for his age, thought highly of proponent who had nursed his wife in her last illness and [148]*148had been kind to him and took good care of him during his own illness; and that the will was freely made without any undue influence or domination. The substance of contestants’ evidence was that after his wife’s death McCarthy did not want appellant in his home and tried to get rid of her but could not; that at the time he signed the propounded paper giving to appellant his entire estate of about $35,000 including all he had recently received from his wife’s estate, McCarthy was an aged man of eighty-three years, physically and mentally weakened by serious prolonged illness from which he never recovered; that he was childish, senile, mentally disoriented, his utterances and acts irrational; that he was easily subject to domination by appellant who had ample opportunity as she lived with him in his home as his nurse during all the times in issue.
• Concededly after his wife’s death, McCarthy became seriously ill and was under the constant care of a physician who attended him at his home frequently, for months almost daily. Thus the doctor came every day in September, 1941, 23 days in October, 16 in November, 15 in December, 11 in January, 1942, 21 in February, 11 in March, 11. in April and daily from May 1 to May 8, 1942, when McCarthy died.
The propounded document, dated October 31, 1941, left decedent’s entire estate to appellant who was also named sole executrix. On October 6th and October 22, 1941, two other documents had been signed by McCarthy giving his whole estate to appellant except that she was not named as executrix.
On January 5,1942, McCarthy applied for a marriage license; and on January 8, 1942, when he was about 84 years old and appellant 46, a church marriage ceremony was solemnized between them.
McCarthy had in his own name savings bank accounts of about $18,000. He also had inherited about the same sum from his deceased wife. After the marriage with appellant, the bank accounts in McCarthy’s own name were changed to joint accounts in the names of himself and appellant, payable to the survivor.
[149]*149Named executor and sole legatee of his deceased wife’s will, McCarthy, from his youth an actor, on the recommendation of the Actors’ Fund retained the Fund’s attorney, one Jacob Goodstein, to probate the will. Goodstein did so and was taking the usual steps for administering and closing Mrs. McCarthy’s estate when a dispute arose. In October, 1941, McCarthy wrote a note discharging Goodstein and directing him to turn over all papers including the bankbooks to another attorney, Max Palev, the lawyer who drew the propounded document and attended at the execution thereof.
On McCarthy’s behalf, Paley instituted a formal proceeding in the Surrogate’s Court to fix Goodstein’s fees and compel him to turn over the papers. In that proceeding Goodstein waived any fee for himself, but seriously questioned whether McCarthy was then able to look after his own affairs and suggested that McCarthy appear before the Surrogate so that the court could protect his interests. On the day agreed on for his appearance, a doctor’s certificate was produced stating he was unable to attend.
Thereafter the Surrogate, on the consent of all parties and their attorneys in that proceeding, sent Mr. Kieran, a law1 assistant of the Surrogate’s Court, to McCarthy’s home on November 24, 1941. The attorney and counsel for McCarthy as well as Mr. Goodstein were present and also Dr. McTague, McCarthy’s physician; appellant and one Mr. Dickson were in the living-room or the adjoining room during the hearing. McCarthy was questioned by Mr. Goodstein and by Mr. Chapman, his own counsel; the law assistant also asked a few questions; the record was taken by a stenographer.
At that hearing McCarthy said he knew Goodstein for forty years, whereas the fact was that he first met him in July, 1941; that Goodstein had told him seven months before at Sixth Avenue and 50th Street that he would get McCarthy a million dollars; that he knew Wiener about nineteen years, having first met him when McCarthy was with George Cohan in one of his shows, whereas the fact was that Wiener was associated with Goodstein; that he just learned that Mr. Goodstein was acting as the lawyer for his wife’s estate and did not know it “ up to now ’ ’, whereas Goodstein had been acting as McCarthy’s attorney since his wife’s death in July, 1941. McCarthy told his own counsel that he went down to Goodstein’s office because he heard “ they were putting out some plays, and I went down myself to see if there was any part in my line.” He stated that he knew Mr. Kieran, the law assistant, for many years, that he [150]*150was “ a very good manager, and he was a good many years with George M. Cohan,” whereas he was never with Mr. Cohan and had never met McCarthy before in his life. McCarthy also denied reading papers which he concededly had read only a few minutes before and showed in other ways mental confusion and lack of orientation in respect of persons and his surroundings. In parts of his testimony, however, he answered rationally, intelligently, at times even forcefully, and wrote out in longhand at Goodstein’s request a letter substantially the same as the one he had previously sent discharging Goodstein and substituting Paley as his attorney.
This hearing, which now is denounced as an unwarranted inquisition, was taken on the express consent of all parties to the prior proceeding and questions and answers from it, includ ■ ing Mr. Kieran’s brief testimony, were received in evidence on this trial without any objection whatever to any part of it by appellant. Both sides read into evidence such parts of the minutes as were deemed helpful to their respective contentions and then asked questions thereon. The admission into evidence of the questions and answers at the hearing on November 24, 1941, affords no ground for reversal of this decree. It is immaterial that appellant was not a formal party to that prior proceeding.
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Dore, J.
Petitioner, proponent of a document claimed to be the last will of Timothy F. McCarthy, deceased, appeals from Surrogate’s decree denying probate entered on a general verdict after a jury had found special verdicts of lack of testamentary capacity and undue influence.
The conflicting evidence on the trial presented issues of fact on testamentary capacity and undue influence which were submitted to the jury for its determination; and as there is ample evidence to support the jury’s verdict, the decree entered thereon should not be disturbed unless there is found, as appellant earnestly contends, serious prejudicial error requiring reversal. The trial lasted four days; proponent called ten witnesses, contestants, fourteen; both sides adduced a great mass of evidence. Accordingly, only so much of the voluminous record will be summarized as is essential to intelligent understanding of the grounds alleged for reversal.
Timothy F. McCarthy, the deceased, lived with his first wife, Mary McCarthy, for sixty-six years. This appellant, then Beatrice Crotty, acted as nurse for Mary McCarthy for a week or two until Mrs. McCarthy’s death on July 5, 1941. Thereafter appellant remained in the home with McCarthy, as his nurse and housekeeper.
The gist of the testimony for the appellant was that at all times McCarthy was possessed of complete testamentary capacity, knew his own mind, was vigorous for his age, thought highly of proponent who had nursed his wife in her last illness and [148]*148had been kind to him and took good care of him during his own illness; and that the will was freely made without any undue influence or domination. The substance of contestants’ evidence was that after his wife’s death McCarthy did not want appellant in his home and tried to get rid of her but could not; that at the time he signed the propounded paper giving to appellant his entire estate of about $35,000 including all he had recently received from his wife’s estate, McCarthy was an aged man of eighty-three years, physically and mentally weakened by serious prolonged illness from which he never recovered; that he was childish, senile, mentally disoriented, his utterances and acts irrational; that he was easily subject to domination by appellant who had ample opportunity as she lived with him in his home as his nurse during all the times in issue.
• Concededly after his wife’s death, McCarthy became seriously ill and was under the constant care of a physician who attended him at his home frequently, for months almost daily. Thus the doctor came every day in September, 1941, 23 days in October, 16 in November, 15 in December, 11 in January, 1942, 21 in February, 11 in March, 11. in April and daily from May 1 to May 8, 1942, when McCarthy died.
The propounded document, dated October 31, 1941, left decedent’s entire estate to appellant who was also named sole executrix. On October 6th and October 22, 1941, two other documents had been signed by McCarthy giving his whole estate to appellant except that she was not named as executrix.
On January 5,1942, McCarthy applied for a marriage license; and on January 8, 1942, when he was about 84 years old and appellant 46, a church marriage ceremony was solemnized between them.
McCarthy had in his own name savings bank accounts of about $18,000. He also had inherited about the same sum from his deceased wife. After the marriage with appellant, the bank accounts in McCarthy’s own name were changed to joint accounts in the names of himself and appellant, payable to the survivor.
[149]*149Named executor and sole legatee of his deceased wife’s will, McCarthy, from his youth an actor, on the recommendation of the Actors’ Fund retained the Fund’s attorney, one Jacob Goodstein, to probate the will. Goodstein did so and was taking the usual steps for administering and closing Mrs. McCarthy’s estate when a dispute arose. In October, 1941, McCarthy wrote a note discharging Goodstein and directing him to turn over all papers including the bankbooks to another attorney, Max Palev, the lawyer who drew the propounded document and attended at the execution thereof.
On McCarthy’s behalf, Paley instituted a formal proceeding in the Surrogate’s Court to fix Goodstein’s fees and compel him to turn over the papers. In that proceeding Goodstein waived any fee for himself, but seriously questioned whether McCarthy was then able to look after his own affairs and suggested that McCarthy appear before the Surrogate so that the court could protect his interests. On the day agreed on for his appearance, a doctor’s certificate was produced stating he was unable to attend.
Thereafter the Surrogate, on the consent of all parties and their attorneys in that proceeding, sent Mr. Kieran, a law1 assistant of the Surrogate’s Court, to McCarthy’s home on November 24, 1941. The attorney and counsel for McCarthy as well as Mr. Goodstein were present and also Dr. McTague, McCarthy’s physician; appellant and one Mr. Dickson were in the living-room or the adjoining room during the hearing. McCarthy was questioned by Mr. Goodstein and by Mr. Chapman, his own counsel; the law assistant also asked a few questions; the record was taken by a stenographer.
At that hearing McCarthy said he knew Goodstein for forty years, whereas the fact was that he first met him in July, 1941; that Goodstein had told him seven months before at Sixth Avenue and 50th Street that he would get McCarthy a million dollars; that he knew Wiener about nineteen years, having first met him when McCarthy was with George Cohan in one of his shows, whereas the fact was that Wiener was associated with Goodstein; that he just learned that Mr. Goodstein was acting as the lawyer for his wife’s estate and did not know it “ up to now ’ ’, whereas Goodstein had been acting as McCarthy’s attorney since his wife’s death in July, 1941. McCarthy told his own counsel that he went down to Goodstein’s office because he heard “ they were putting out some plays, and I went down myself to see if there was any part in my line.” He stated that he knew Mr. Kieran, the law assistant, for many years, that he [150]*150was “ a very good manager, and he was a good many years with George M. Cohan,” whereas he was never with Mr. Cohan and had never met McCarthy before in his life. McCarthy also denied reading papers which he concededly had read only a few minutes before and showed in other ways mental confusion and lack of orientation in respect of persons and his surroundings. In parts of his testimony, however, he answered rationally, intelligently, at times even forcefully, and wrote out in longhand at Goodstein’s request a letter substantially the same as the one he had previously sent discharging Goodstein and substituting Paley as his attorney.
This hearing, which now is denounced as an unwarranted inquisition, was taken on the express consent of all parties to the prior proceeding and questions and answers from it, includ ■ ing Mr. Kieran’s brief testimony, were received in evidence on this trial without any objection whatever to any part of it by appellant. Both sides read into evidence such parts of the minutes as were deemed helpful to their respective contentions and then asked questions thereon. The admission into evidence of the questions and answers at the hearing on November 24, 1941, affords no ground for reversal of this decree. It is immaterial that appellant was not a formal party to that prior proceeding. Declarations of the testator before, at or after the making of the will, while incompetent to prove external facts, are admissible on the issues of mental competency or undue influence. (Matter of Woodward, 167 N. Y. 28, 30; Matter of Limberg, 277 N. Y. 129, 133; Matter of Putnam, 257 N. Y. 140, 144; Smith v. Keller, 205 N. Y. 39, 49; Note, 79 A. L. R. 1459.) Whether the declarations are too remote in point of time to have a legitimate bearing on the issues is for the court. In Matter of Woodward (supra) Cullen, J., said: “ It is settled law in this State that declarations of the testator, while incompetent to prove external facts, are admissible on questions of mental competency or undue influence: 1 Because as is said by Jarman in his work on Wills, “ The amount of undue influence which will be sufficient to invalidate a will must of course vary with the strength or weakness of the mind of the testator.” So the mental strength and condition of the testator are directly in issue in every case of alleged undue influence; and the same evidence is admissible in every such case, as in cases where insanity or absolute incompetency is alleged. ’ ”
Witnesses had testified on both sides that McCarthy’s acts and utterances impressed them as rational or irrational at the times they observed him. That testimony, however, depended [151]*151on the accuracy of the witnesses’ memory and the correctness of their impressions which might be erroneous though made in perfectly good faith. But the questions and answers read from this hearing furnished the jury direct evidence of McCarthy’s own utterances taken down by a stenographer in the presence of his attorney and counsel about three weeks after execution of the proposed will. Though that evidence, with the appropriate questions and answers based thereon, when considered with the rest of the testimony, left the issues of testamentary capacity and undue influence for the jury, it was impressive proof of McCarthy’s actual mental condition at a time sufficiently close to the' claimed will to make it entirely relevant and material. The evidence was properly received. Indeed to have excluded it would have been prejudicial reversible error.
The law assistant was merely authorized to be present at the taking of the testimony and not to act in any judicial capacity; the testimony taken and its probative value were for the trier of the facts'. (Matter of Hutchings, 61 Hun 625, General Term, First Department opinion in 16 N. Y. S. 36.)
Appellant also contends that Exhibit 26 was received in evidence at the trial in the same form as printed in the case on appeal, was considered by the jury and is patently prejudicial. When the attorney for the Public Administrator offered in evidence papers in the proceeding to determine Mr. Goodstein’s compensation, the Surrogate suo moiu expressly excluded from the record the minutes of the hearings in that proceeding and then suggested that the papers offered be specifically identified. Thereupon the attorney specified the papers he offered in evidence from the file — the petition, citation and certain affidavits and letters. These papers, concededly containing nothing prejudicial, were received in evidence without objection. Although the minutes of the hearings had been thus expressly excluded by the court itself when Exhibit 26 was offered in evidence, that exhibit, consisting of 122 printed pages of the case on appeal, contains nothing hut the minutes of the hearings, the colloquy and the Surrogate’s opinion in the' prior proceeding. This inclusion in the record was pursuant to written stipulation, dated October 15, 1943, providing that Exhibit 26 be omitted from the printed case on appeal “ excepting the minutes of the hearings of November 24, 1941, December 3rd and December 22nd, 1941, which are to be printed.” These minutes thus printed as part of Exhibit 26 in the record do contain in places prejudicial matter including the opinion of the Surrogate in the prior proceeding that he was convinced McCarthy was, at the [152]*152time in question, incapable of handling his own affairs. If the exhibit as printed was actually received in evidence and made accessible to the jury, that alone would justify reversal of this decree. Appellant’s counsel, who was not her trial counsel, contends that the exhibit as printed was received in evidence, seen and read by the jury. Respondents’ counsel who were present at the trial allege that the inclusion of the hearings in the printed record as part of Exhibit 26 was “ by error ” and that no part of that material was either admitted in evidence at the trial or made accessible to the jury.
The trial record demonstrably supports respondents’ contention. Exhibit 26 as printed, containing the excluded minutes, was not received in evidence at the trial but was expressly excluded by the Surrogate; it was included in the printed case on appeal by manifest error when the above stipulation was made a year after the trial. Further, the trial record contains no notation that the jury during their deliberation called for any of the exhibits that actually were in evidence or that any exhibits were sent to the juryroom. Finally, when the jury’s verdict was received, appellant’s trial counsel in his motion to set aside the verdict made no claim that exhibits not in evidence or any exhibits containing prejudicial matter had been seen by or made available to the jury. Appellant’s contention on appeal does not stand analysis in the light of the record at trial, and should be overruled as neither established nor timely.
What is said of Exhibit 26 is equally applicable to Exhibit 24 only four lines of which were actually admitted in evidence at the trial.
Further objection is made that the verdict should be set aside as inconsistent, as the jury found McCarthy did not possess testamentary capacity and also found that the will was procured by undue influence. However, when the special verdicts were received, contestants immediately moved for a general verdict thereon and that motion was granted. Either finding supports the general verdict denying probate of the will. (Matter of Mauran, 248 App. Div. 650, affd. 272 N. Y. 567.)
There was no error in refusing to charge in the language requested regarding the presumption of sanity. Testamentary capacity was in issue, not insanity as such, and the two are distinct. (7 Wigmore on Evidence [3d ed.], § 1937.) The Surrogate did charge: “ The presumption is that a mind once sound continues, but the evidence may overcome that [153]*153presumption and the burden of showing that soundness of mind exists is upon you [proponent’s counsel] and your client, Mrs. McCarthy.” That charge was correct. (Delafield v. Parish, 25 N. Y. 9, 29, 30; Rollwagen v. Rollwagen et al., 63 N. Y. 504, 517; Matter of Mullin, 143 Misc. 256, 258, affd. 240 App. Div. 996, affd. 265 N. Y. 491; 1 Jessup-Redfield on Law and Practice in Surrogates’ Courts, § 387.)
Appellant also contends that the special guardian for unknown heirs at law and next of kin who might be infants or incompetents and the Public Administrator were not authorized to appear and contest probate. Both contentions should be overruled. The special "guardian was duly appointed and did appear; his appearance was noted; he made an opening statement and summation; took part in the trial and no objection was made. Appellant did move to strike out the Public Administrator’s appearance but an order was entered denying that motion (Matter of McCarthy, 178 Misc. 1004); appellant did not appeal from that order, and did not specify it in connection with this appeal from the final decree and it cannot now be reviewed. (Surrogate’s Court Act, § 295.)
Other objections are urged regarding claimed error in the admission of evidence. Assuming that some small part of the testimony was improperly received, we think appellant was not necessarily so prejudiced as to authorize, under section 294 of the Surrogate’s Court Act, reversal of the decree admitting the will to probate. As Cullen, J., said in Matter of Woodward (167 N. Y. 28,31, supra)In a case of probate where want of testamentary capacity and undue influence are charged, much latitude in the introduction of testimony must necessarily be allowed to the parties.” The trial court applying that rule allowed each side ample latitude to adduce evidence that reflected any light on the mental condition of the testator at or about the time of the making of the will.
From time to time the learned Surrogate did take hold to examine witnesses, at times vigorously, but this action served to expedite the trial and further ascertainment of the ultimate facts bearing on the issues presented. An experienced trial judge should not resign himself to the position of a mere automaton, (1 Wigmore on Evidence [3d ed.], § 21, p. 374.) During the trial, the jury were repeatedly admonished to keep their minds open until all the evidence was in. In the charge they were instructed that they were the sole judges of the facts, that on the two questions.submitted to them the responsibility was wholly theirs, and that they were not to be swayed by sympathy for [154]*154either side or by prejudice or bias against any party or any person interested. They were further instructed not to be controlled by the court’s recollection of the facts but, if necessary, to correct it by the entire recollection or memory of the jurors and not to let their verdict be affected by any of the court’s rulings except on the exclusion of evidence. They were also told in what ivas characterized by the court as “ another impor tant instruction ” that under the law, if McCarthy was of sound mind and not unduly influenced, he had “ the right to dispose of his property, to give it away to anyone he selects, and we do not sit here in judgment on what we would have done under other circumstances.” On the whole record it may not properly be said that the Surrogate unduly interfered with the trial or improperly invaded the jury’s province, so as to require a new trial.
In Matter of Barney (185 App. Div. 782, 794) this court said of a will contest: “ The well-settled rule in this class of cases is that if there be more than a mere scintilla of evidence tending to show incompetency to make a will and of such a character that different inferences may fairly be drawn therefrom, the case must be decided as one of fact and if the trial be before a jury it must be left with the jury.” In Hagan v. Sone (174 N. Y. 317, 323) the Court of Appeals stated the rule as follows: “ Questions of fact arising in an action to determine the validity of a will are no different in this respect from questions of fact in any other case. When evidence is given of such a character that different inferences may fairly and reasonably be drawn from it, the fact must be determined by the jury. The good sense of the jury, when aided by proper instructions from the court, is the best and, indeed, the only protection that litigants ordinarily have in the determination of issues of fact, depending upon conflicting evidence, even when such issues arise in actions to determine the validity of the most important testamentary instruments.”
The final determination of the issues in this case depended on the good sense of the jury and their inferences from the over-all picture presented by the evidence.
On the entire record, we may not say the jury’s verdict was against the evidence or the weight of the evidence. The decree denying probate should be affirmed.
Claiming that, as widow of Timothy F. McCarthy, deceased, she should have been appointed administratrix of his estate, appellant also appeals from an order issuing temporary letters of administration to the Public Administrator. At the hearing [155]*155on the order to show cause, the then attorney of appellant did not oppose the application, stating the only objection would be the matter of expense but if the Surrogate thought the motion to appoint the Public Administrator should be granted, “ let it be granted ”. The issue was thus left entirely to the court. In view of all the facts and circumstances, we cannot say the court abused the discretion.
The issue of appellant’s status as wife is not presented or passed upon in the appeal from the order issuing temporary letters to the Public Administrator or in the appeal from the decree denying probate.
The decree and order appealed from should be affirmed, with costs.