
    In the Matter of the Probate of a Paper Writing Purporting to Be the Last Will and Testament of Charles C. Richardson, Deceased. Grace D. Valentine, Proponent, and Bertha R. Alexander, Appellants; Sarah A. Richardson and Katie E. R. Alexander, Respondents.
    Second Department,
    March 31, 1910.
    Will — testamentary capacity and undue influence — when issues sent to jury — evidence — undue influence — burden of proof.
    Where a will has been refused probate on findings of undue influence and lack of testamentary capacity based on evidence not free from doubt, and the determination of the Surrogate’s Court is not entirely satisfactory, the Appellate Division will order the issues to be passed upon by a jury. Such determination of the appellate court does not necessarily imply that the surrogate was positively wrong.
    While there need not be direct proof of undue influence there' must be affirmative evidence of facts from which it may be inferred.
    The burden of proving undue influence is upon the contestants of the will
    Appeal by Grace D. Valentine, proponent, and another from a decree of the Surrogate’s Court of' the county of Westchester, entered in said Surrogate’s Court on the 17th day of February, 1906.
    
      John F. Brennan, for the appellant, proponent.
    
      Kenry G. Kenclerson, for the respondents.
   JENKS, J. :

This appeal is 'from a decree of the Surrogate’s Court of Westchester that refused probate of the alleged will of Richardson upon the findings of restraint and undue influence and of incompetency. Richardson was 72 years old when he executed the instrument,. The natural objects of liis bounty were his aged wife and his two daughters, Mrs. Alexander and Mrs. Valentine. At the instance of his wife and Mrs. Alexander and- after their consultation with his physician Richardson had been confined in a sanitarium for physical and mental infirmities, but after a few weeks he had been released by legal proceedings at the instance of Mrs. Valentine, wherein a jury determined that' he was competent to' manage his affairs. Shortly thereafter he executed the instrument in question, whereby, although he provided for his wife and the child of Mrs. Alexander, he excluded Mrs. Alexander, and disposed of the bulk of his estate in favor of Mrs. Valentine and her children. The contestants are the widow and Mrs. Alexander.

The opinion in the case indicates that the finding of restraint and undue influence rests upon the distinction made in favor of M1-s. Valentine, for which there appeared no good reason, and the absence of any proof that Mrs. Valentine ever attempted to correct her father’s obsession that Mrs. Alexander’s purpose in taking steps towards his confinement in a sanitarium was to strip him of his possessions, by informing the father that'Mrs. Alexander had acted from proper motives and upon a physician’s advice. The question of incompetency was bitterly contested, and there was a clash of intelligent and reputable witnesses aside from a battle of experts. The proponent called a well-known physician who attended Richardson before the execution of the instrument, and who was a witness thereto, a prominent member of the bar who drew the instrument, as well as several friends and neighbors, of whom all gave evidence which indicated testamentary capacity. In sharp contradiction' the contestants called several witnesses, including physicians. -

We think that those'issues should be passed upon by a jury. Such a determination of the appellate court does not necessarily proceed from the conclusion that the Surrogate’s Court was positively wrong in the result reached upon the facts, but is the

approved course where the disposition, which should be made of the questions of fact presented by the evidence is not free from doubt and the result reached in the Surrogate’s Court is not entirely satisfactory to the appellate court. (Matter of Tompkins, 69 App. Div. 474, and authorities cited; Matter of Warnock, 103 id. 62 ; Matter of Eckler, 126 id. 199; Matter of Hopkins, 176 N. Y. 595.) As this disposition is to submit, as if in the first instance, questions of fact to the primary .judges thereof, and as it does not necessarily involve our determination of positive error in the findings of fact made by the learned Surrogate’s Court, it seems wisest that we should not indulge in extended discussion of the facts in the present record. (Matter of Tompkins, supra, citing Van Orman v. Van Orman, 34 N. Y. St. Repr. 824, 826.) Aside from the fact that the instrument provides inequally in a marked degree for those of like degree the finding of restraint and of undue influence, as I have said, rests upon the absence of evidence. For aught that appears such evidence may be available. And on the other hand Mrs. Valentine testifies that at the outset she was against such confinement, and it may be that she believed that her sister’s motives were not entirely disinterested, although that sister was sustained by the opinion of a physician. If Mrs. Valentine believed that Mrs. Alexander was moved solely by her affection for her father and was fortified by medical opinion, Mrs. Valentine’s omission to remove the violent prejudice of her father against her sister might be stamped asunsisterly, sinister and unfair, but such shortcoming is hardly sufficient to compel the inference that Mrs. Valentine thereby substituted her will for that of her father in. the disposition of his property. In the nature of things undue influence is not readily susceptible of direct proof, but there must at least be affirmative evidence of facts from which it may be inferred. (Cudney v. Cudney, 68 N. Y. 148.) In that case the court, per Raparlo, J., say : “ To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence ; there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist or by deception, fraud or other improper means, that the instrument is not really the will of the testator.” The burden of this issue, was upon the contestants. (Matter of Martin, 98 N. Y. 193, 197.) So far as the question of competency is concerned, enough has been said to show that that issue should be submitted to a jury.

The decree of the Surrogate’s Court should be reversed and there should be had-a new trial by jury at a Trial Term of the Supreme Court, held in the county of Westchester, upon these questions:

First. Did decedent at the time of the execution of the will in question have testamentary capacity ? .

Second. Was the instrument purporting to be such will voluntarily made by him ?

Third. Was the execution by the decedent of the said instrument purporting to be his last will and testament procured by fraud, circumvention or undue influence practiced upon him ? with costs of the appeal to abide the event of the new trial, payable out of the estate.

Hirschbebg, P. J., Woodward, Thomas and Carr, JJ., concurred.

Decree of the Surrogate’s Court of Westchester county reversed, and new trial granted before a jury, costs of the appeal to abide the event of the new trial, payable out of the estate.  