The opinion
Capozzoli, J. (dissenting).
The sole question presented on this appeal is whether the deceased, Grace W. Ortelere, was mentally competent on February 11, 1965, when she executed a document whereby she changed her pension option from Option One to an option by which she would receive maximum payments for life, with nothing left over on her death. Briefly, the record shows that the decedent had been employed as a teacher in the New York City Public School System for 37 years and, on June 28,1958, she executed and filed with the defendant her selection of Option One, in which she named her husband, the plaintiff herein, as beneficiary. She died on April 8, 1965, after having been absent from her teaching assignments from March 26,1964. From July 1,1964, until the time of her death, the decedent was under the care of a psychiatrist who testified at the trial and gave details of his treatment and examinations up to the time of her death. It is noteworthy that, at the time of her death, there was a reserve standing to her credit in the sum of $62,000, together with interest accrued thereon, of which the decedent had contributed about $31,000. As a result of the change of option on February 11,1965, the decedent was allowed two months’ pension payments until her death, at which time all payments ceased and her estate completely cut off from any participation in the remaining reserve.
The court below tried this case for two days and both sides were given a full opportunity to litigate the question of decedent’s mental incompetency. At the close of the entire case the court reserved decision and made the following observation: '‘ The Court: May I observe for the record, though, that the evidence of mental incompetency is very substantial. You have offered no really credible evidence to rebut it. * * * We have a situation here where a woman obviously and seriously sick emotionally and mentally, and during that sickness retired. *142 We have had a qualified psychiatrist give his opinion, and we have had no evidence to rebut it.”
Thereafter the trial court, in an opinion, found as a fact that the action taken by the decedent on February 11,1965, when she changed to the new option, was null and void and without legal effect.
It seems to me that the evidence below presented a fair question of fact for the trial court and, whether or not one might agree with its result, the fact remains that there is no legal reason for reversing the findings of the trial court, in view of the record as it stands.
Therefore, I dissent and vote to affirm.
Eager, J. P., and Steuer, J., concur with Tilzer, J.; Capozzoli, J., dissents in opinion in which McGivern, J., concurs.
Judgment reversed, on the law and the facts, and the complaint dismissed, without costs or disbursements to either party, and the Clerk is directed to enter judgment in favor of defendant dismissing the complaint, without costs.