Estate of Babcock

This is an appeal from an order admitting the will of Mary Catherine Babcock, executed September 28, 1917, to probate. Appellants, contestants in the trial court, opposed the probate of the will on the ground that the testatrix was not of sound mind at the time the instrument was executed. The contest was tried before a jury, but at the conclusion of the testimony on behalf of both the contestants and the proponent of the will the trial judge directed the jury to return a verdict that the testatrix was not of unsound mind. "Verdict was rendered accordingly and the order from which the appeal is taken was thereupon entered.

Appellants make the contention that the court erred in directing the verdict which was returned. There is thus presented the question whether the record contains evidence of a substantial character tending to show that the deceased had not testamentary capacity at the time the will was made, for the rule is that such a direction is to be considered as if the judge had granted a motion for a nonsuit. Stated in other terms, the rule is that if the evidence introduced is such that it would support a finding by the jury of lack of testamentary capacity, the…