Francis L. Leland executed his will on April 23, 1914, and died on March 28, 1916. He left a large estate embarked in active enterprises. He named three executors, but one predeceased him and another renounced his appointment. Objections were filed by respondents in the Surrogate’s Court of Hew York county to the qualifications of the remaining executor, Timothy M. Cheesman; the appellant herein, and to the granting of letters to him. These objections were based on the consideration that appellant, who is a retired physician, sixty-three years of age, had suffered two strokes of apoplexy, one on February 17, 1914, and another on December 23, 1915, resulting in partial paralysis, which had so seriously impaired his physical and mental powers as to incapacitate him permanently for the active work of sole executor of this estate. The provisions of section[*391] 2564 of the Code of Civil Procedure on which appellant relies are as follows:

Ҥ 2564. Persons incompetent to receive letters, or act as testamentary trustee.

“No person is competent to serve as an executor, administrator, testamentary trustee or guardian, who is:

“ 1. Under the age of twenty-one years;

“2. An adjudged incompetent;

“ 3. An alien not an inhabitant of this state;

“ 4. A felon;

“ 5. Incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding.”

The learned surrogate held that only imbeciles and lunatics were disqualified to serve as executors “ by want of understanding; ” that as Dr. Cheesman was not incompetent to manage himself or his affairs by reason of lunacy or idiocy, he was not disqualified by his illness from executing the duties of a trust and that the nature and extent of the duties to be discharged in a particular case were not to be considered in determining the question of competency. (Matter of Leland Estate, 96 Misc. Rep. 419.) The Appellate Division on appeal held unanimously that the surrogate is authorized to withhold letters testamentary from one who, on account of any mental infirmity, is unfit to discharge the duties of the trust, reversed the order appealed from and remitted the proceeding tq the Surrogate’s Court for further action in accordance with its opinion (Matter of Leland Estate, 175 App. Div. 62; 161 N. Y. Supp. 316), whereupon Dr. Cheesman appealed to this court.

The first question raised has to do with the power of the court below to make a final determination of the controversy. Appellant contends that it was required to grant a rehearing, and that it should not have made a final disposition of the question. Section 1311 of the Code of Civil Procedure, as amended to take effect September 1,[*392] 1912, authorizes the Appellate Division to render “final judgment upon the right of any or all of the parties, * * * except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing.” Section 2763 of the Code of Givil Procedure, relating to appeals from Surrogates’ Courts, provides that “ where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surrogate had, ” The court below exercised its appellate jurisdiction by reversing the decree of the surrogate and its original jurisdiction by denying the application of Dr. Oheesman for letters testamentary (Matter of Totten, 179 N. Y. 112.) Section 1317 has to do with appeals in general. It is not inconsistent with the further pz’ovisions of section 2763, which read: “the appellate court may reverse, affirm, or modify, the decree or oz’der appealed from, * * "x" and it may, if necessary or proper, grant a new trial or hearing.” The facts in this case, so far as developed before the surrogate, are undisputed and the Appellate Division was within its powers in disposing of the question on the facts.

The appeal to this court from the order of reversal of the Appellate Division was proper (Matter of Union Trust Co., 172 N. Y. 494), and the oz’der was a final order so far as the appellant is concerned, as his rights were finally disposed of by the order appealed f rom.

As the revez'sal was upon the facts as well as the law, if there is a material question of fact involved, we cannot consider the action of the Appellate Division in determining it, for we are confined by the Constitution to questions of law. (Matter of Thorne, 162 N. Y. 238.) If, however’, the learned surrogate is correct in his interpretation of the statute, Dr. Oheesman, who is not an idiot or a lunatic, is not disqualified by want of understanding. No other inference was possible from the uncontradicted evidence, no question of fact was presented to the surrogate and a question of law remains for our consideration.[*393] If, on the other hand, the Appellate Division is correct, in its interpretation of the statute, the established facts permit the inference that Dr. Cheesman is disqualified by want of understanding and a question of fact arises, the determination of which we have no power to review, although a different inference might be drawn from the same facts. (Matter of Totten, 179 N. Y. 112, 116.) The question of law is thus presented whether “want of understanding ” as used in section 2564 of the Code of Civil Procedure implies an entire lack of mental capacity.

It may be broadly stated that the common law favors the rule that no restriction should be placed upon the choice of an executor, even though unsuitable persons are allowed to exercise the trust to the possible prejudice of creditors and legatees. Modern legislation enlarges the control of probate courts over improper testamentary appointees. In Yew York the necessary qualifications of an executor are described with minuteness. (Code Civil Procedure, §§ 2564-2567.) But the testator still enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be disregarded. Appointment is not to be refused merely because the testator’s selection does not seem suitable to the judge. Old age or bodily infirmities, lack of business experience and capacity, or ignorance of the law, do not disqualify; but the words of section 2564 are more than a mere restatement of the common-law disability of imbeciles and lunatics. The test of incompetency should be applied with caution to cases where inability intelligently to discharge the duties of the trust arises from bodily disease resulting-in permanent impairment of mental and physical ability. (Thayer v. Homer, 11 Metc. 104, 110; McGregor v. McGregor, 1 Keyes, 133.) The courts will not undertake to make a better will nor name a better executor for the testator. They will not add disqualifications to those specified by the statute, nor disregard testator’s wishes by[*394] too liberal an interpretation of the specific disqualifications, nor consider the size and condition of the estate, except as a minor consideration. Where the ties of kindred and long acquaintanceship lead the testator to choose the inexperienced wife or friend rather than the modern trust company the relative advantage to the beneficiaries will not justify a judicial' veto on such choice. Every executor is entitled to have the aid of counsel learned in the law. The Surrogate’s Court should not, however, grant letters to an unadjudged incompetent, nor to one unable, by reason of incurable bodily disease, to understand the duties of a given trust sufficiently to safeguard the interest of the living. Reasonable men might reasonably differ in the application of this rule to the appellant, particularly if he had been named as sole executor by the testator with full knowledge of his present condition. As the rule of law laid down by the court helow was the correct rule, we cannot question its application to the facts.

The order appealed from1 should be affirmed, with costs payable out of the estate.

Hiscook, Chase, Collin and Cuddeback, JJ., concur; Hogan, J., dissents; Willard Bartlett, Ch. J., absent.

Order affirmed.