
    Estate of Sarah A. Peck, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed October 20, 1887.)
    
    1. Will—Probate of—When paper offered regarded with suspicion.
    Where a will has been prepared or procured by one interested in its provisions, an additional burden is imposed upon those who seek to establish it. The circumstance is regarded by the court with suspicion and jealousy, and there must be stronger proof than would else be required, that the paper propounded expresses the free unbiased testamentary purpose of the alleged testator, and not merely the wishes of the interested beneficiary.
    3. Same—Confidential relation between testator and beneficiary —Inference of fraud.
    The existence of a confidential relation, such as subsists between physician and patient, implies peculiar opportunities for the exercise by the former over the latter of influence and authority, so that if he has been instrumental in procuring from his patient a will containing provisions greatly to his advantage, fraud and undue influence will readily be inferred, unless jealous suspicion is put to rest by satisfactory testimony.
    3. Same—When not admitted to probate.
    I+ appeared in this case that the decedent was of doubtful testamentary capacity at the time of making the will, that she soon afterward became insane. That she demurred when asked to execute it, and said that before signing it she wanted time to consider, because its provisions were not quite to her liking. It did not appear who originated the pretended will or where it had been since it came into being, etc. Held, that the paper was not deserving of probate.
    
      Birdseye, Oloyd & Bayliss, for proponents; S. F. Knee-land, for contestant Morris; N. B. Sanborn, for Polhemus et oil., contestants.
   Rollins, S.

This decedent, who was a resident of the city of New York, died on the thirty-first of October last, leaving as her surviving next of km and heirs at law a sister of the whole blood, a brother and sister of the half blood, three nephews and two nieces.

On the day following her death,-Dr. Ebenezer B. Belden propounded for probate in this court a paper purporting to be her last will and testament.

No one of decedent’s relatives, near or remote, is named in this instrument as a beneficiary; if it is in truth her will, her entire estate, which is admittedly of very considerable value, is now the property of the proponent, and its administration must be committed to his hands as sole executor.

All the heirs at law and next of kin of the decedent have appeared in opposition to the proponent’s claims, and insist that upon his own showing—for he has rested his case—his petition for probate should be denied.

It is not disputed that for many years prior to the execution of this paper, the proponent and decedent sustained to each other the confidential relation cf physician and patient; nor is it disputed that the proponent was directly instrumental in procuring the paper to be executed

Its two subscribing witnesses are George Holl and Dr. John E. Stillwell. The latter acted as witness upon the express request of the proponent, and, upon a like request, invoked the services of his associate, Mr Holl Dr. Still-well was at the time (June, 1882), employed as an assistant in Dr. Belden’s office, and the two subsequently became partners.

As to the origin of this alleged will, the evidence is utterly silent. There has been no proof of instructions and no production of a draft; the proponent has not undertaken to show by whose hand the paper was written, or to controvert the evidence strongly tending to show that the handwriting is his own.

Dr. Stillwell’s testimony in this regard is as follows: He said at first that the handwriting of the alleged will bore a resemblance to Dr. Belden’s, and might be his, though he believed the contrary. He subsequently testified, after further scrutiny, “I believe it is in the "handwriting of Dr. Belden.” Upon the production of a paper written by the proponent in court and containing his signature, and a copy of a portion of the instrument in controversy, Dr. Stillwell said, in answer to a question whether he adhered to the belief that that instrument was in Dr. Belden’s hand, “There are remarkable points of resemblance, but I cannot determine.”

If I were required to pass upon the question now under consideration by my own unaided comparison between the will and the piece of writing which is admittedly the proponent’s own, I should be greatly perplexed; but I see no such marks of dissimilarity between the chirography of the one paper and that of the other as to dispel the conviction forced upon me by Dr. Stillwell’s testimony and the proponent’s silence, that the two pieces of writing are the work of the same hand.

Now, the proponent stands before the court, not as admitting that this alleged will was written by himself. On the contrary, out of the mouth of his counsel, he claims that the evidence will not warrant that conclusion. This is to my mind a circumstance of the gravest importance, in view of a legal doctrine which counsel for the contestants invokes in behalf of their clients.

That doctrine may be thus stated: Where a will has been prepared or procured by one interested in its provisions, an additional burden is imposed upon those who seek to establish it; the circumstance is regarded by the court with suspicion and jealousy, and there must be stronger proof than would else be required that the paper propounded expresses the free unbiased testamentary purpose of the alleged testator, and not merely the wishes of the interested, beneficiary. Moreover, the existence of a confidential relation, such for example as subsists between physician and. patient, implies of itself peculiar opportunities for the exercise by th e former over the latter of influence and authority, so that if he has been instrumental in procuring from his patient a will containing provisions greatly to his. advantage, “fraud and undue influence will readily be inferred unless all jealous suspicion is put at rest ” by satisfactory testimony. Schouler on Witts, 256; Newhouse v. Godwin, 17 Barb., 236; Barry v. Butlin, 1 Curt., 637; Baker v. Batt, id., 135; Wilson v. Moran, 3 Brad., 172; Ingram v. Wyatt, 1 Hag. Ecc., 384; Crispell v. Dubois, 4 Barb., 393; Kinne v. Johnson, 60 id., 69; Post v. Mason, 91 N. Y., 539; Trumbull v. Gibbons, Mss., N. J. Law, 1824; Boyd v. Boyd, 66 Penn. St., 283; Durling v. Loveland, 2 Curt., 225.

Now, the suspicions of undue influence and fraud excited by the testimony, upon which I have thus far commented, have not been removed, but, on the contrary, have been greatly strengthened by other portions of the evidence.. I do not deem it necessary to review that evidence in detail.

It shows that the decedent was of doubtful testamentary capacity at the time with which we are here concerned; that, in the judgment of Dr. Stillwell, she was then near the border line between sanity and insanity, and passed that line soon afterwards; “that she “demurred” when Dr. Belden’s assistant asked her to execute this pretended, will, and said that before signing she wanted time to consider, because its provisions were not quite to her liking; that she repeated her demurrer when for certain reasons assigned by Dr. Stillwell, he repeated his request. It fails fails to show who originated this will; whether or not the decedent ever gave instructions regarding it; where it has heen since it came into being; how it fell into the possession of the proponent himself.

The paper is not deserving of probate.  