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IN THE MATTER OF DAVID M. LEE, DECEASED. CAROL MARION LEE CORBETT, appellant; BANK OF NEW YORK, et al., respondents.

ORDERED that the appeal from so much of the decree as ordered the respondent Steven James Lee to pay $2,764.58 to the estate is dismissed, as the objectant is not aggrieved by that portion of the decree (see CPLR 5511; Scopelliti v. Town of New Castle, 92 N.Y.2d 944); and it is further,

ORDERED that the decree is affirmed insofar as reviewed, with one bill of costs payable by the objectant personally to the respondents appearing separately and filing separate briefs.

The determination of the Surrogate's Court that the decedent was competent on the dates he executed the inter vivos trusts was not against the weight of the evidence, as the objectant failed to overcome the presumption of competency (see Smith v. Comas, 173 A.D.2d 535; Feiden v. Feiden, 151 A.D.2d 889, 891). A person suffering from disease, such as organic brain syndrome, is not presumed to be wholly incompetent. Rather, it must be shown that, because of the affliction, the person was incompetent at the time of the transaction (see Gala v. Margarinos, 245 A.D.2d 336; Matter of Waldron, 240 A.D.2d 507; Feiden v. Feiden, supra).

The objectant did not refute the executor's proof that the decedent had periods of lucidity and was competent on the dates he executed the trusts (see Gala v. Margarinos, supra; Matter of Waldron, supra). Thus, it cannot be said that the Surrogate's Court could not have reached its determination on any fair interpretation of the evidence (see Feiden v. Feiden, supra).

The objectant's remaining contentions are without merit.

RITTER, J.P., GOLDSTEIN, LUCIANO and SCHMIDT, JJ., concur.

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IN THE MATTER OF LEE
(May 8, 2002)