the penciled changes written on the will of March 29, 1895, which he testifies that he used as a draft for that now in question. They have every appearance of being honestly made, and were not attacked at all by the expert. I consider also the absence of proof of any adequate motive on the part of Mr. Simpson for making an alteration in the will after decedent's death, assuming him to be capable of such an act, and in this connection also consider all the other circumstances which I have mentioned, and which led me to conclude that the paper actually represents her testamentary wishes. Then, too, the fact that the first and second pages of the will of March 29, 1895, are exactly the same as the similar pages of the will offered for probate, renders it exceedingly improbable that these pages of the latter have been, as intimated by the contestants, tampered with since its execution. In my opinion, therefore, the peculiarities confessedly existing in said will are sufficiently explained and accounted for, and it is admitted to probate.

Probate decreed.

Matter of the Alleged Will of JOHN CONNOR, Deceased.

(Surrogate's Court, New York County, Filed October, 1899.)

1. WILL-TESTAMENTARY CAPACITY-MEDICAL EXPERT.

Opinions of attesting witnesses to will and of laymen as to testator's testamentary capacity should prevail over that of a medical expert testifying in answer to a hypothetical question that a man under the conditions stated and suffering from Bright's disease would not have been mentally competent to make a will.

2. SAME-NATURAL OBJECTS OF BOUNTY.

A bequest of all testator's property to his two poor maiden sisters, with whom he had long resided, to the exclusion of a brother able to support himself and a sister of the half blood, is not unreasonable or unnatural.

Proceedings upon probate of a will. Decedent died pos

sessed of one small house and lot valued at $6,000 and $1,400 cash in banks which he gave to his sisters. His brother and another contested the will on the ground of want of mental capacity.

David A. Sullivan, for proponent; George H. Hart, for con

testants.

VARNUM, S.-The decedent, John Connor, was about sixtyfive years old when he died, on June 3, 1899, and left him surviving as his only heir at law and next of kin a brother, Patrick Connor, of nearly the same age, two maiden sisters of middle age, Kate and Mary Connor, and a half-sister, Julia Flanagan. He left personal property estimated at about $1,400, consisting chiefly of money in banks and certain real estate, in which there appears to be an equity of something like six or seven thousand dollars. The maiden sisters above named, both poor, and one of them at least, working as a seamstress, had lived with the decedent and kept house for him up to and for a considerable time before his death. A paper is now offered for probate as his last will and testament, dated March 9, 1899, by which he gives all his money in certain specified banks and his interest in the real estate above mentioned to his sisters, Kate and Mary, above referred to, and by which he appoints one of them as executrix. The alleged will is contested by his brother, Patrick Connor, and his half-sister, Julia Flanagan, on all the usual grounds. It is unnecessary to refer to the testimony in extenso. I find that the will was properly executed in accordance with law, and that no undue influence was exerted upon the testator to secure its execution. See Matter of Lowman's Estate, 1 Misc. 43. I am also most decidedly of opinion that the testator was in such a condition of mind and body as to be perfectly capable at law of making the will in question. The only testimony to the contrary worthy of any consideration came

from an expert medical witness, who, in answer to a hypothetical question propounded by contestants' counsel as to certain conditions, stated that, in his opinion, a man under those conditions and suffering from Bright's disease of the kidneys would not have been mentally competent to make a will. The hypothetical question to which the answer was given, did not, in my opinion, state the facts of the case as they had been proved. See Dickie v. Van Vleck, 5 Redf. 284, 293. The testimony, in my judgment, does not show that the testator suffered from that especial type of Bright's disease which necessarily renders a person mentally incompetent. Moreover, the testimony other than the expert, as to the testator's testamentary capacity at the time the will was made, and especially that of the subscribing witnesses, should prevail over the opinion of an expert. In re Lyddy's Will, 4 N. Y. Supp. 468; Matter of Kiedaisch, 13 id. 255, 260; Matter of Will of Johnson, 7 Misc. 220, 27 N. Y. Supp. 649. As to the fairness and reasonableness of the will, it does not, in my judgment, seem unnatural that the testator should have preferred to leave the little property that he had to dispose of to the two middle-aged maiden sisters with whom he lived, who had ministered to his wants in the last years of his life, and who were poor, hard-working women, rather than to a brother, who, judging from his appearance upon the stand, is quite vigorous and strong, despite his age, and should be capable of earning his own livelihood. Nor is it strange, under all the circumstances, that he should have preferred his sisters of the full blood, with whom he lived, to his half-sister, the contestant. Objections overruled and will admitted to probate.

Probate decreed.

Matter of the Appraisal for Taxation, Under the Act in Relation to Taxable Transfers of Property, of the Estate of CHARLES ALLEN THORNDIKE RICE, Deceased.

(Surrogate's Court, New York County, Filed November, 1899.)

1. TAXABLE TRANSFERS-SECOND APPRAISAL.

Where property of decedent has been once honestly appraised at its fair market value as of the time of his death, and it is found that the amount appraised did not represent the entire property of the deceased, the new appraiser should confine himself to the newly-discovered property, and will not be permitted to institute a second appraisal in order to collect a tax on a foreign newspaper enterprise and on pictures for which executor had since the first appraisal received sums much greater than was then estimated.

2. SAME.

Nor will the State Comptroller be allowed on the second appraisal to show that the estimated deductions for debts were excessive as compared with the actual payments which have been made for debts. 3. SAME.

Where there is a doubt as to the deductions for uncertain debts and claims, it is suggested that there might be an appropriate recital in the appraisers' report and the order that the deduction so made is without prejudice to the right of the State to a further proceeding if it should afterwards appear that the items are not valid claims or are less than allowed.

Affirmed 56 App. Div. 253.

Appeal from an order entered April 24, 1894, assessing and fixing the transfer tax upon an appraisal had under an ex parte order granted upon the application of the State Comptroller.

Parsons, Shepard & Ogden, for appellants; Emmet R. Olcott, for Comptroller.

VARNUM, S.-This matter was argued before and submitted to Judge ARNOLD, but was not decided by him. It was reargued orally before me and briefs submitted. The appeals

herein are from an order entered April 28, 1894, assessing and fixing the transfer tax upon an appraisal had under an ex parte order granted on the application of the State Comptroller. Proceedings had been had theretofore in which there was an appraisal of the estate for the purpose of taxation on the facts presented by the personal representative of the decedent. Since such appraisal and by reason of facts that thereafter occurred, it was found that the amount appraised did not represent the entire sum of the property of the deceased, and it is claimed that there is now due on said estate a further tax upon property not covered by the former appraisement. Upon the first appraisement all the property then known to the executor was appraised, its value and the taxable interest therein ascertained and reported by the appraiser, an order duly entered upon the basis of such report, and the tax was paid over two years prior to the filing of the petition in the present proceeding. No allegations of fraud, mistake or concealment in connection with the first appraisal are made, nor has any application been made to set aside such appraisement or to open the proceedings and remit the case to the appraisers. The law provides that the surrogate shall appoint some competent person as appraiser "as often as occasion may require," in order to fix the value of property of persons whose estates shall be subject to the payment of tax. The object of successive appraisals as thus provided for is evidently to collect the tax on the whole taxable estate, and, where all the assets have been appraised and the tax thereon fixed, to cover any omission by additional or supplemental appraisals when such omissions are discovered. The petition herein upon its face is an application for a new and not a reappraisement, for its purpose is therein stated to be to obtain the appointment of an appraiser of "all said estate or property on which the said tax has not already been paid." Upon the new appraisement it was found that there was some property of the decedent subject to tax which had not been ap