
    In the Matter of the Probate of the Last Will and Testament of Edward O. Kindberg, Deceased.(Proceedings Nos. 1 and 2.) August Reymert and Others, Appellants; Presbyterian Hospital in the City of New York, Respondent.
    First Department,
    December 2, 1910.
    Will — execution — testamentary capacity — fraud — evidence.
    Where'it .appears that a testator; by bis acts at the time Of executing his will, wished it to be understood1 that the paper signed by him was.his will, and.that he requested the witnesses to'sign it as such, which they, did, there has been a . compliance with the statute.
    The fact that the testator’s attorney, who prepared the. will and superintended ' it's execution, was the principal beneficiary thereunder is not 'sufficient, st'anding alone, to warrant an inference of undue, influence. ,
    'But this fact, taken in connection with the circumstances that the testator at the time of executing the will five days before he died was sick and had been. . confined to his bed for a-month, and evidence to the effect that his illness caused a degradation of memory and attention, and that there was a complete change of testamentary intention within five months, as shown by a former will, imposed upon the proponent the burden of proving more in regard to testa- , mentary capacity than would otherwise have sufficed.
    Evidence in a proceeding-to probate a will examined, and held, that the question of testator’s testamentary capacity should be submitted to a jury, as well as the questions of due execution and fraud or undue influence.
    
      Appeal by August' Reymert, a legatee and the executor named in the alleged will of Edward O. Kindberg, deceased, and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 28th day of December, 1909, refusing probate to a paper dated March 25,1909, propounded as the last will and testament of Edward O. Kindberg, deceased, and admitting to probate an earlier will dated October 29, 1908.
    
      James M. Hunt, for the appellant Reymert.
    
      Thomas Gregory,t for the infant legatees, appellants.
    
      Robert Thorne, of counsel, for the respondent.
   Milleb, J.: .

The testator left an estate estimated at approximately $80,000. His sole next of kin was a brother to-whom he did not wish to leave any of his property, as the two were not on friendly terms. By the October will he gave substantially his entire estate to the Presbyterian Hospital in the City of New York, the respondent. By the March will, if it was his will, he gave $10,000 to the son of his brother, $10,000 to the son of his deceased wife’s sister; $5,000 to his attending physician; $5,000 to a Mrs. L. Gehlert; $2,500 to the wife of Edward J.. Stapleton, one of >the subscribing witnesses ; $5,000 to each of the three daughters of August Reymert, the appellant; his furniture to Katherine Magee, and the residue of his estate to the said August Reymert, whom he appointed his executor. Shortly before the making of the October will the testator’s wife committed suicide. No reason is suggested why he desired to leave his entire estate ,to the Presbyterian Hospital Unless it can be inferred from the state of his. mind, immediately succeeding the tragic death of his wife,'and the fact that about four years before her death she was treated in that hospital for about two weeks. There is some testimony, given .by apparently disinterested witnesses, to the effect that the testator considered the October will as a temporary arrangement to bridge over the time Until he should ultimately determine what final disposition to make of his property, his declared purpose being to prevent his brother inheriting his estate; on the other hand, there is testimony tending to indicate .that lie regarded that will as. the final disposition of his property. There is evidence to show that the 'said Mrs. G-ehlert was a friend of the testator’s deceased, wife; that Mr. and Mrs. Stapleton, were. acquaintances of more than twenty years’standing;-that the,testator greatly admired his physician, and that the said Beymert was his most intimate friend. Both wills were drawn by one Bozanski, 'said Beymert’s law clerk, the-October will pursuant to instructions communicated’ directly by the testator to Bozanski; the March will pursuant to a memorandum in the handwriting of Beymert, delivered by him to the said Bozanski... Both, wills Were executed in duplicate. ' - • .

There is no question respecting the execution of the October will or the testamentary capacity of the testator at'the time. But the •surrogate found that at tile time of the execution of the paper bear-. ing date March tvfenty-fifth the decedent was sick 'and had .been confined, to his bed for about a'month; that he was riot fully normal and, although it. was possible to-arouse him for a few moments at a time, that liis- disorder had caused ¿'degradation of diis powers of . memory and attention, and. that lie-quickly relapsed' into a condition of sleep or semi-coma; that the paper was notread or explained -.to thé decedent, and that there was no evidence to show that he had actually read the paper or knew what it meant ¿r that he intelli-. gently comprehended' its meaning or that it expressed his free arid uhtrammel'ed wish and intention; that lie did not declare'1 the paper to be his will, and that the ¡witnesses wlio subscribed tlieir names to the paper were not requested by him to do so, and that the paper was the result of undue influence, exercised over the decedent by the said August Beymert. • ■

The first' question to-' be considered, then, on. this 'appeal'is whether .there was sufficient proof' of the due execution of the March will. That depends upon the testimony of the subscribing witnesses, Stapleton and Bozanski. It appears that Bozanski, Stapleton and Beymert called upon the decedent,--evidently for the purpose of having the will executed. Stapleton testified that they, found tlie decedent propped up in bed, and after.some conversation, in which all present participated, Beymert said: “Ed, I have brought that .will up for you to sign arid I brought Mr. Stapleton and Gle.ment here as witnesses.' * *■ * Would you like to exécute' it now,” to which the decedent-replied, “Yes;” that the will and a copy thereof were then handed to the decedent, who “ looked at it, read it all over carefully, turned the leaves over, read it all over carefully; he took considerable time in reading it,, and after he got through reading it, he said, ‘ That is all right; ’ ” that Eeymert'then procured a book, and a pen from a desk where the decedent told him to find one, and the decedent then signed both'papers, propped up in bed and using the book to write upon ; that “ lie signed it very, carefully; took his time about it,, and after he got through he says, ‘ It is not. a very good signature, but I guess it will go all right.’ * * * I said, ‘ Ed, do you wish me to. sign this as a witness ? ’ I did not heal* him answer, but his head was bowed, and I took . that to be at his request, and I went over to the desk, and signed the will, the copy, and then I got up and the other witness sat down. I saw him in the act of signing it.” The witness further testified : “ Q. In your opinion was Mr. Kindberg of sound mind and memory when you saw him sign that will ? A. I should say he was. He was just as sound as I ever saw him in my life. He was a man of positive force. A very decided man. He was rational at the time lie-signed the will; yes, everything .abouthim. His mind was as clear as a bell at that time.”. The witness Rozanski testified with respect to the conversation introducing the subject of the will, that Reymert said, “Ed, I have drawn that will according to your instructions of yesterday; * " "x' * . I have brought here Clement and Mr. Stapleton to sign as witnesses as you wanted; ” that the decedent said, after carefully reading the will, “ That is all right, that is just whát I want;” that, after signing the paper, the decedent turned to them and said, “ Here, you sign as witnesses,” and that Reymert took up one of the papers and read the attestation clause.

The .learned surrogate did not credit the testimony of Rozanski, and held that the testimony of Stapleton.was not sufficient to show publication or a request of the witnesses to sigh as witnesses. We are unable to discover anything in this record to discredit Rozanski. The fact that the will was executed finder the supervision of a lawyer- would tend to confirm,'rather than discredit, his testimony, showing that the formalities required by the statute (Decedent Estate Law [Consol.- Laws, chap. 13; Laws of 1909, chap. 18], § 21) were complied with. Moreover, the testimony of Stapleton . alone was sufficient on that head.. There can'be no doubt from his testimony that, as between the witnesses and the decedent, ■. the. latter wished it to be understood that the paper- signed by' ' him was his will, and that he desired them to' sign as witnesses,: and tliat is all the statute requires. ‘ (Matter of Balmforth, 133 App. Div. 521, and cases cited.) The learned surrogate interpreted the- testimony ofStapleton to the. effect ■ that the testator’s “ head was bowed,”- to mean that his head was' hang- • ing down either in sleep or stupor, and the learned cpunsel for the respondent-states that the testator’s he.ad was bowed, and remained so. We find nothing in the record. to' justify either-the statement of counsel or the inference of the learned súrogate, . -and it -is apparent from the testimony of the witness that lie-did. not intend -any such inference to be drawn. He' gave' a straightforward account of a' natural, transaction in which' the testator took ati active and intelligent part-throughout, being alert ■ and attentive to all that was said and done. ' We have, then, a case' •in which the subscribing witnesses testified to a compliance with all the formalities required, by the statute, strengthened by the' faitinference to be drawn from the fact that the paper was executed under the • supervision óf a lawyer. The findings of.the surrogate on that head are, therefore, .plainly contrary to the evidence.

The serious question in the case is whether the March will was the result of undue influence exercised by the appellant. The find-. ings of the surrogate with respect to the publication of the will and the request to- the1, witnesses td. sign it tend to weaken the-force of his finding with- respect to- undue .influence. ■ Reymert was the testator’s intimate friend and attorney. The will was-prepared pur- ■ suant to his directions and was executed under his supervision,' He and his daughters were given more' than half of the testator’s estate. Upon the face of the two wills there was a complete change oí -testamentary intention within five, months.' - While only fifty-five. years -of age, the testator, was confined to his bed by sickness, and died five days later. The fact'that Reymert, the .principal beneficiary, was. the testator’s attorney and prepared the will and superintended- its execution standing alone would -not be sufficient to warrant an inference of undue influence. (Post v. Mason, 91 N. Y. 539; Matter of Suydam, 84 Hun, 514; affd., 152 N. Y. 639, on the opinion below; Haughian v. Conlan, 86 App. Div. 290.) But we think that, in connection with the'other circumstances referred to, it did'impose upon the proponent the burden of proving more than would ordinarily suffice. (Matter of Rintclen, 77 App. Div. 142.) However, the inference to be drawn depends principally upon the mental and physical condition of the testator.

The testator was described by different witnesses as a man “ of positive force. A very decided man.” A strong business man ; ” “ a good business man ; he was very methodical and very decided.” The respondent’s witnesses testified that he retained these qualities up to the sixteenth' of March. It does not appear distinctly what was the cause of death. The attending physician' being a legatee was precluded from testifying on behalf of the proponents. The decedent became so ill the night before his death, on the morning of March thirtieth, that a trained nurse was called in to attend him, but the latter was not called as a witness. ■ If the testimony of the subscribing witnesses is to be believed, the decedent was in the full possession of his mental faculties on the twenty-fifth of March and was then feeling so well that he expected to be up and about in a few days. Their call lasted about half an hour. Their narrative of the conversation and occurrences is so natural as to furnish internal evidence of its truth. They are corroborated with respect to the testator’s condition by three apparently disinterested witnesses, musicians at a nearby restaurant where the decedent was in the habit of dining, two of whom called on the decedent on the twenty-fifth and one on the twenty-sixth, the latter being called as a witness by the respondent.

The respondent called Henry Clark, Susan and Katherine Magee, William M. Soule and Sarah T. Soule, whose testimony tends to show that the decedent was in a semi-comatose condition for some time prior to the twenty-fifth of March up to the day of his death. Clark was a house servant, employed at- three dollars per week by the Misses Magee, of whom the decedent rented a room. He claims that he acted as a nurse for the decedent for about two weeks prior to the latter’s death, and it is evident that he did wait upon him during that period. The witnesses Soule were the father and mother of one of the legatees who was given $10,000. Soule admitted that he had been assured by the attorney for the respondent that his son should receive that amount in any event, and there is no denial that such a promise had been made him, Clark is now an orderly in one of the city hospitals, and the witness Katherine Magee, who was bequeathed the furniture, released her legacy for the purpose of being a witness, as she says, without any arrangement with the respondent and without being advised to do so. The testimony of each one of these witnesses shows conscious effort to favor ■the respondent. Upon important- details they are contradicted by apparently disinterested witnesses, and we think that they are contradicted by an unimpeachable witness, i. e., the ■ signatures of the testator to the papers of March twenty-fifth, which were produced for our inspection upon the argument in this- case.

As the foregoing analysis of the testimony indicates, we aré of the opinion that this case should be submitted to a jury. (Matter of Tompkins, 69 App. Div. 474; Matter of Warnock, 103 id. 61; Matter of Eckler, 126 id. 199; Matter of Richardson, 137 id. 104.) Further discussion is, therefore, unnecessary at this time. The decree of the- Surrogate’s Court should be reversed and a new trial by a jury should be had on the following questions: 1. Did Edward O. Kindberg possess testamentary capacity at the time of the execution of the. alleged will of March 25, 1909 ? 2. Was said alleged will duly executed by him ? 3. Was the execution of said alleged will procured by fraud Or undue influence practiced upon him? Witli.costs to abide the event of the new trial, payable out .of the estate. •■■ • _ •

In graham, P. J., Lauqhlin, Clarke and Scott, JJ., concurred.

Decree reversed and new trial by a jury ordered as directed in opinion; costs, to .abide event, payable out of the estate. Settle order on notice. ' .  