
    Matter of the Probate of the Last Will and Testament of William J. Cruger, Deceased.
    (Surrogate’s Court, New York County,
    November, 1901.)
    Undue influence — Wife’s solicitations to her husband that he provide for her by his will — Wife preferred to brother.
    No rule of law precludes the wife of a childless, sick and helpless testator from requesting him to provide for her by his last will, even to the extent of his entire estate, nor from seeking to induce him to do so by argument and reasonable persuasion, and particularly where the testator had lately sustained large losses and in an amount not ascertained by him at the time when he made his last will.
    Although a testator and his wife had had quarrels and once lived apart, yet, where they had become reconciled, the court considered that his leaving her his entire property to the exclusion of bis brother and family, for whom he had provided by a former will, did not indicate undue influence upon her part, it appearing that the brothers had seen but little of each other and had parted, some months before the making of the last will, under circumstances likely to cause coolness between them.
    Proceedings upon the probate of a will.
    Steele, DeFriese & Frothingham, for petitioner.
    William H. E. Jay (John A. Taylor, of counsel), for James P. Cruger, contestant.
    Frederick P. Bellamy, guardian ad litem.
    
    Ward, Hayden & Satterlee, for general guardian.
   Thomas, S.

The due formal execution of the paper offered for probate is conceded, and it is not seriously contended that the decedent was lacking in testamentary capacity. The sole beneficiary and proponent is the widow of the decedent, and the only opposing interests are a brother and that brother’s children, who Would take under a previous will if this will should be refused probate. The contest is made to rest solely upon a contention that this latest of a series of wills was procured by undue influence. The burden of establishing this as a fact rested upon the contestants. To that end a great mass of testimony was taken of the relations between the decedent and his wife, extending back for many years, with much of detail concerning the protracted and serious sickness which ended in his death. A great deal of testimony concerning the wife tended to show her to be a woman given to violent outbreaks of temper and disposed to assert her rights or pursue her interests with great vigor and tenacity of purpose. The decedent was, on the other hand, shown to be of an easy and compliant, if not essentially weak, character, and the disease or diseases which fastened upon him rendered him exceedingly helpless. It was while the wife was in complete charge of her husband that the will now offered .was made. All of this established quite fully that ample opportunity was afforded for the exercise of undue influence, but it did not suffice to prove that the influence actually exercised was of a kind or degree that would justify any court in declaring the testamentary paper null and void. The wife of this childless, sick and dying man was not precluded by any rule of law from requesting him to make provision for her by his will, even to the entire extent of his estate, •or from seeking by argument and reasonable persuasion to induce him to grant such request. I have not been able to find in the entire record any evidence that could justify me in finding that she exceeded or that she even came up to the limits of her rights in this respect. On the contrary, I am led to believe that this last will was the natural and logical expression of the decedent’s sentiments of affection towards his wife, under the facts relating to his estate, as known to him at the time it was made. 1ST otwithstanding the occasional quarrels between the two, it is to be observed that in each and every of the series of wills before the last, in force for many years before his death, his entire estate is left so as to be enjoyed by his wife for her life, with the single exception of one will which was made under peculiar circumstances of estrangement, and which was only in force for a few weeks. This is true of a will made under the eye and with the approval of the brother now contesting, and while the husband and wife were living apart from each other. Shortly prior to the making of the will now offered for prohate, á substantial change took place in the estate of the decedent. A relative who had for years taken charge of his property died, leaving his affairs in a confused condition, and a large loss was discovered to have been made. The exact extent of that loss was not known and could not be- ascertained. This relative had been named in the will then in force, as executor. Under such circumstances it was not unnatural that a new will should be desired, both by the husband and by the wife, which would give to her more complete protection against want than would he afforded by a mere life estate in the husband’s shattered fortune. I find no cause for suspicion in the fact that the decedent and his wife were at a hotel in England when the will was first executed and that his brother in America was not informed of his exact whereabouts. For many years before this the brothers wandered over the world, each by himself, with the liberty afforded by wealth and leisure to go almost anywhere, but they seldom could be in the same place at-the same time. It needed no contrivance to keep them apart, since there is no evidence that either of them had the slightest desire to be together. The brother now contesting parted from the decedent in Monte Carlo, some months before the making of this last will, after rendering brotherly and valuable services, hut under circumstances likely to • cause a feeling of coolness, and when full opportunity to visit the decedent in Mew York was given to the brother, substantially the only sign of affectionate regard which he gave was to call upon his sick brother in his bedroom to solicit a loan of money. The letters - written by the decedent to his wife while she was in Mew York and he in England, and there was no opportunity for undue influence, show a tender affection for her and are entirely consistent with the will. It is not within the province of a court of probate to adjudicate that she was unworthy of his regard or of his benefaction. The objections must be overruled and the will admitted, to probate. The costs of the proponent will be paid out of the estate.

Probate decreed.  