
    MAGDALENA ROLLWAGEN, Appellant, v. FREDERICK ROLLWAGEN, Jr., and others, Respondents.
    
      Will—Witness—when opinion of, cannot be gimen—Decree of surrogate—appeal . from —presumption in favor of— Fraud— Undue influence.
    
    Except in matters of science, art, skill, trade, navigation, value, and other similar inquiries, witnesses are confined in their statements to facts observed and known by them, as distinguished from their opinions and conclusions.
    Where probate of a will is contested upon the ground of the mental and physical incapacity of the testator, witnesses cannot state the opinions and conclusions drawn by them from his acts and motions, but should confine their testimony to the acts and motions themselves.
    The court cannot reverse the decree of the surrogate, unless it appears to have been erroneously made. The presumption is in favor of its correctness.
    Where an application is made for the probate of a will of a person, who at the time of its execution was suffering from paralysis, and was unable to speak or articulate distinctly, on the ground that he was able to express his thoughts and desires by certain sounds and motions made by him, the character and meaning of such sounds and motions must be clearly and unequivocally established.
    By a former will the deceased had devised to his wife a life estate in a house, which was subsequently sold by him. Afterward he directed another will to be prepared, in -which the house in which-they then lived, should be given to his wife in place of the one which had been sold. The will, prepared in pursuance of such directions, and executed by him, devised the house in fee to the wife, and also contained a bequest to her of one-third of the personal property. Held, that as his condition was such that he could not detect the alteration upon hearing the will read over, such alteration was a fraud of so material a character as to require that the instrument should not be admitted to probate.
    Shortly before his death the deceased, who was at that time helpless and dependent, and entirely subject to the influence of his wife, made, under her direction and procurement, certain changes in a will, formerly executed by him, all of which were entirely for her benefit. Held, that the presumption was that they resulted from her influence, unduly and improperly exercised over him.
    Appeal from a decree of the Surrogate’s Court of the county of New York, denying probate of instruments claimed to be the will and codicil of Frederick Rollwagen, deceased.
    
      Wm. Henry Arnoitx, for the appellant.
    The will was properly subscribed by the testator. (Meehan v. Rourke, 2 Brad., 385; But
      
      lev v. Benson, 1 Barb., 533; Ross v. Chester, 1 Hagg. Ecc. Rep., 227; Reynolds v. Root, 62 Barb., 251; Nelson v. McGiffert, 3 Barb. Ch., 158; Jauncey v. Thorne, 2 id., 41; Weir v. Fitzgerald, 2 Brad., 42.) The publication of the will fulfilled all the requirements of the Revised Statutes. (Hun v. Case, 1 Redf., 307; Doe v. Roe, 2 Barb., 202; Barry v. Butlin, 1 Curteis, 639; Moore v. Moore, 2 Bradf., 261; Chaffee v. Baptist Miss. Con., 10 Paige, 90; Seamen’s F. Soc. v. Hopper, 33 N. Y., 633; Vaughan v. Burford, 3 Bradf., 78; Tunison v. Tunison, 4 id., 138; Whitbeck v. Patterson, 10 Barb., 608; Boyd v. Cook, 3 Leigh, 205; Barton v. Robins, 3 Phillimore, 455, note b; Brown v. De Selding, 4 Sandf., 15; Peck v. Cary, 27 N. Y., 1; Newhouse v. Godwin, 17 Barb., 240; Smith v. Smith, 2 Lans., 266; Martin v. Wotton, 1 Lee’s Ecc. R., 131; Ross v. Chester, 1 Hagg. Ecc. R., 227; Gilman v. Gilman, id., 355.) The assent of the testator maybe by signs. (Lewis v. Lewis, 11 N. Y., 226; Coffin v. Coffin, 23 id., 15; Van Hooser v. Van Hooser, 1 Redf., 370; Seamen’s F. Soc. v. Hopper, 33 N. Y., 633; Hutchings v. Cochrane, 2 Brad., 295.) As to the mental condition of the testator. (Watson v. Donnelly, 28 Barb., 655; Banks v. Goodfellow, 39 L. J. R., 237; Delafield v. Parish, 25 N. Y., 59; Den v. Van Cleve, 2 South., 660; Reynolds v. Root, 62 Barb., 251; Williams v. Goude, 1 Hagg. Ecc. R., 581; Watson v. Donnelly, 28 Barb., 655; Harrison v. Rowan, 2 Green [N. J.] Ch., 570; McMasters v. Blair, 29 Penn., 305; Thompson v. Thompson, 21 Barb., 114; Kempsey v. McGinnis, 21 Mich., 141; Leech v. Leech, 21 Penn., 68; Stewart’s Executor v. Lispenard, 26 Wend., 255; Blanchard v. Nestle, 3 Denio, 37; Clarke v. Sawyer, 2 N. Y., 499; Thompson v. Quimby, 2 Brad., 490.) As to fraud and undue influence. (Einne v. Johnson, 60 Barb., 70; Small v. Small, 4 Greenleaf, 223; Tyler v. Gardiner, 35 N. Y., 610; Zimmerman v. Zimmerman, 23 Penn., 375; Barfitt v. Lawless, 21 Weekly R., 200; Williams v. Goude, 1 Hagg. Ecc. R., 580; Eadie v. Slimmon, 26 N. Y., 11; Mountain v. Bennett, 1 Cox, 355; Miller v. Miller, 3 Serg. & R., 269; Browne v. Mollerton, 3 Wharton, 131; Watson v. Donnelly, 28 Barb., 656; Remsen v. Brinckerhoff, 26 Wend., 340; Bleecker v. Lynch, 1 Bradf., 471; Harrell v. Harrell, 1 Duval, 203; Van Guysling v. Van Kuren, 35 N. Y:, 71.) The exclusion of the testimony of the witnesses as to the meaning of the sounds and motions made by the testator, was erroneous. (Clay v. Clay, 2 Ired. L. R., 79; Wheeler v. Alderson, 2 Hagg. Ecc. R., 574; De Witt v. Barly, 17 N. Y., 348; Orser v. Orser, 24 id., 51; Chaffee v. Baptist M. C., supra)
    
    
      Henry L. Clvnton and George F. Langbeim, for the respondents,
    cited Clapp v. Fullerton (34 N. Y., 190); Delafleld v. Parish (25 id., 9) Tyler v. Gardiner (35 id., 581); Lee v. Dill (11 Abbott, 214); Limburger v. Rauch (2 Abb. [N. S.], 279.)
   Daniels, J.:

The decedent departed this life at the city of Hew York on the 11th of October, 1873, aged about sixty-six years, having accumulated an estate valued at from $500,000 to $800,000. He was a native of Alsace, then a German province of France, and emigrated to this country in 1829. He was thrice married. The issue of the first marriage was three sons and one daughter. The latter died before her father, but the former, together with her seven children survived him. These sons and grandchildren all contest the validity of the instruments propounded as the will and codicil of the decedent. He was last married to the appellant. That marriage was solemnized on the 19th of September, 1871. At that time he had become considerably shattered and enfeebled in his health, which continued to decline until the time of his decease.

During the life of his first wife, and for a portion of that time, ■ the appellant, who was her niece, was employed as a domestic servant in the family. In 1869, she again entered the household of the decedent in the same capacity; afterward becoming his housekeeper, and, finally, his wife. His second wife survived her marriage only about one year. She died in the year 1867. Shortly after his own decease, his last wife, the appellant, gave birth to a daughter, claimed by her to be the issue of her marriage with the decedent. He was a person of but little education, having simply acquired the ability to write his name and read figures. But before 1860 he was of firm, robust health, and, while he had the full control of his mental faculties, was a person of more than ordinary natural sagacity and judgment. During his life he drank freely, and was not uncommonly in a state of intoxication; and that habit of indnlging in the use of stimulants continued until very near the time of his decease. After his last marriage his health seems to have declined more rapidly than it previously had, and it continued to do so without any substantial interruption until the time he died. Subsequent to that marriage, but at what particular time was not shown upon the hearing in the Surrogate’s Court, he made a will, drawn by Mr. Rosenstein, and called the Rosenstein will; and it was for the purpose of effecting certain changes in the disposition which that made of his property, and in the designation of an executor, that the will in controversy was drawn. That was done shortly before the 17th of June, 1873, when it was claimed to have been executed by the decedent. This will provided that his wife should have his dwelling in which they resided, known as Ho. 312 East Hinth street, in the city of Hew York, with the furniture, carpets, beds, glassware, plate, paintings and household utensils contained in it, and one-third of his personal property. And in addition to that it provided further, that she should have one-third of the rents of his real estate during her natural life, payable by his executors in monthly payments. These devises and bequests were then declared to be in lieu of dower. The residue of the personal estate was directed to be divided into four parts, one for each of his three sons, and the remaining fourth for his daughter’s children; to be invested in real estate mortgages, and paid over to them as they attained the age of twenty-one years; and a similar direction was given concerning the residue of the rents of the real estate; each son to receive his proportion in monthly payments, and the share of the grandchildren to be invested and paid to them as they attained the age of twenty-one years. In ease either child or grandchild died without lawful issue, the share of the deceased person was directed to be divided between the survivors. The real estate was not to be sold until the youngest grandchild, living at the decease of the decedent’s wife, attained the age of twenty-one years; and the fee of that which should be then unsold was then to vest in the issue of his own children and the surviving children of his deceased daughter. The widow, her two brothers, Henry and George Hermann, and his son, Frederick Rollwagen, were nominated executrix and executors of the will.; and power was conferred upon Henry Hermann, one of the executors, to collect the rents of the real estate, and, after paying taxes, water-rates, assessments, repairs, and three per cent commissions on the gross amount collected, to deposit the balance as designated by a majority of the executors. These are the substantial provisions contained in the instrument propounded as the decedent’s will. . But they were so far changed by what was claimed to have been a codicil, executed on the 5th of September, 1873, as to give the widow four additional houses and lots on Avenue A, in the city of Eew York, and to provide that after-born children of hers should share equally in hie estate with those specially named and provided for.

In the course of the hearing before the Surrogate’s Court, various questions arose concerning the admission and exclusion of evidence, which, it is urged in support of the appeal from the decree made, were erroneously decided. This evidence related chiefly to the constructions the witnesses, mentioning them, placed on motions made by, and sounds proceeding from, the decedent; statements .made, that he “tried to talk; ” “ he made the same movement to me that he wanted me to read it; ” he made signs and told me he was sick; ” “I knew when he meant yes; ” he raised one hand and gave her a sign ; ” “ he looked to her, and then he said to his wife with this voice; ” “ it made him put a smile on his lips; ” and others of a similar nature, were stricken out of the testimony because they consisted of the expression .of what the witnesses, stating them, inferred to be the fact from the motions and sounds made by the decedent. Witnesses were also asked whether Mr. Rollwagen indicated assent by his nod; whether the witness had become accustomed to the motions of his mouth and tongue, so as to be able to understand him; whether he knew the witness interrogated, every time he came to see him, in 1871,1872 and 1873; whether he knew another when he went into the room; whether he shook his head in the manner people generally do when they say no ; whether he understood, at the time referred to, all that took place; whether the witness knew, by his rolling his head and moving his eyes, that he wanted something; and other - inquiries of the same nature. The answers to these questions were excluded by the court, because they necessarily embodied conclusions from facts, and not the facts themselves. Proof was also offered and excluded, to show that Mr. Rollwagen' knew what a witness came for, and directed the payment of money to him in every instance; that he understood an arrangement which was made concerning a certain check; that he could articulate so that the witness could understand what he said, and was able to convey to her his meaning; that he recognized another witness; whether it were possible for any person, other than the testator, to have signed his name to the will; that the attorney, in attending to the execution of wills, was careful to have them executed according to the statute. In excluding the answers to these and similar inquiries, and in striking out the answers which the witnesses gave, the court expressly held, that all the facts might be shown which it was supposed existed warranting the inferences and conclusions, so that the proponents were left at liberty to prove them, for the purpose of securing the benefit of the conclusions which' might properly be indicated by them. This was all that they could reasonably ask for. With the exceptions of matters of science, art, skill, trade, navigation, value and other similar inquiries, witnesses are confined in their statements to facts observed and known by them, as distinguished from their opinions and conclusions. That is the general rule, and it seems to have been properly applied by the court during the hearing of this case. It was not a mere technical application of the rule, hut one which the nature of the controversy specially justified. For it was an important inquiry in the case, whether the testator, was either physically or mentally capable of forming or expressing any intelligible purpose; and in its investigation, his actions and movements, and the sounds proceeding from his mouth, seemed to be the only means through which any rational conclusion could probably be reached upon that subject. The theory of the contestants was, that the decedent could neither express his thoughts nor convey his meaning, if any were even entertained by him ; and for the- purpose of properly trying its correctness, they were entitled to have facts proven, as distinguishable from the inferences and opinions the witnesses might' be inclined to regard ■ them as warranting.

The court also excluded certain inquiries as to whether the decedent appeared or -acted rationally. But that was not done, because evidence of that description was inadmissible. The inquiries were made of the contestants’ witnesses, examined for the purpose of proving facts exhibiting the bodily and mental condition of the decedent. They did not fall within the province of a mere cross-examination ; and they were objected to and excluded for that reason, but with a distinct intimation by the court, that the proponents could recall and examine the witnesses on that subject when they should resume the case. The exclusion was made because the evidence offered was not at the time in the orderly course of the hearing; not because it was inadmissible. The proponents were in no way injured by the ruling which was made, because they could secure all the advantage of the evidence offered, by placing the witnesses again upon the stand when they resumed the case. It was, in the end, their own fault, if pertinent evidence was excluded under these rulings. It was part of their case, and was not included within the limits of a mere cross-examination. Nothing has been presented upon the rulings made concerning the admission or exclusion of evidence, which would justify a reversal of the decree. For that reason it will become necessary to examine the evidence which was given, in order to determine whether the court was right in rejecting either the will or the codicil; and, in making that examination and determining, the effect of the evidence, the circumstance that the witnesses were personally before the surrogate, and observed as well as heard by him, must be allowed its appropriate weight. There is often very much in the manner, the appearance, the indications of feeling, as well as intelligence and acuteness of witnesses, which will aid the tribunal observing them' in properly determining the credit due to their statements, and which cannot be exhibited by a mere return of what they may have sworn to. That advantage the surrogate had in the present case; and, in the conflicts and contradictions which existed in the evidence, it probably materially aided him in harmonizing and disposing of the different statements which were made by the witnesses.

The statute only authorizes this court to reverse the decree of the surrogate when it appears to have been erroneously made. The presumption under the phraseology made use of, must be in favor of its accuracy. It cannot be conjectured to be otherwise; but that it was inaccurately made must affirmatively appear, in order to justify its reversal and the direction of an issue. This is the plain meaning of the statute, and any other provision would be clearly unreasonable. This presumption must be overthrown before the decree can be reversed. And before that can be properly done, the conclusion of the surrogate, from all that was legitimately and lawfully before him in the case, must be found to have been erroneous. Among those subjects which he could, and no doubt did consider, contributing to the conclusion finally reached, was the circumstance already mentioned, of the appearance, manner, intelligence and feelings of the witnesses produced and examined upon the hearing.

[Here follows a careful examination and analysis of the testimony of the witnesses to the will, as to its execution and publication by the testator, the conclusion being reached that the evidence failed to show that the statutory requirements had been complied with. The descriptions, given by the witnesses, of the acts which transpired at the time of the execution of the will, differed materially; the witnesses contradicting each other, and even themselves, in many essential points.]

Witnesses were sworn and examined on the part of the proponents, who did testify that the decedent expressed himself by words, and made intelligible remarks, up to near the time of his decease. But very grave doubt was thrown upon the accuracy of their recollection in this respect, by the testimony of other witnesses, given concerning the same subject as early as 1872. According to Rittinger, Ernst, Wagner, Bach and Bendinger, his power of utterance was not far from being exhausted. After a remark by wpy of introduction, Rittinger heard nothing he could understand; Ernst said he spoke hoarsely and coarse; Wagner said he did not speak above a whisper. He' thought the decedent thanked him, and replied so, in answer to an inquiry made concerning the state of his health; but finally said he gave a nod of the head, “ and as much as I understood so.” In 1872, Bach said the decedent invited him to drink, hut when he saw him in 1873, he merely shook his head by way of answer to his salutation, and said something ; he could not hear it, whatever it was. Bendinger described his voice as hoarse in 1871, saying he could not speak except hard. Boese, the servant, stated that she understood him some, in February, 1873, but not all, and that some of the time Mrs. Rollwagen told her what he said. Schultz saw him in the spring of the same year about estimating for a new building, but said he could not understand anything he said, except that he said yes by nodding. Hoch said he talked with him in April, 1873, but qualified his general answers by saying that Mrs. Rollwagen might have explained some answers, and he had forgotten how much of them. The others were more confident, stating that he conversed with them in 1873, and repeating what they understood him to say. One said he did not understand him much — only a few words — and throughout the conversation his wife told him what she claimed the decedent said. According to most of the other witnesses who related words and sentences which they said they remembered, they consisted of commonplace observations concerning trifling or unimportant affairs. They were subjects upon which he would not be very likely to try to express himself, where his utterances were attended with so much difficulty as the other witnesses of the proponents described.

If, as it was stated, he could talk, it certainly is very strange indeed, that he should not have expressed himself with the same ability and freedom, at the times when the contracts were made for the sale of his former dwelling and the purchase of the other; or when the deed was executed on his behalf; or the contracts for mason and carpenter work. were made for the house which was being erected ; or when he attended at the bank, on the first of May, for the purpose of having the $17,800 check paid; or at the meeting of the directors which lie last attended; or during the five weeks the painter worked in the new house; or while Graham was engaged putting down the carpets; or Heynemann called for his monthly gas bills; or Geissenheiner saw him about shoring up his house; or when the instruments, propounded as his will and codicil, were executed. Many of these transactions were exceedingly important, and they seemed to appeal to him for the expression of Ms mind, if lie really had any ideas relating to them, and yet not an intelligible word was spoken; he tried to speak and failed to do so. That was the case on many occasions,^mentioned by the witnesses, when transactions he was interested in were brought to his notice. Geissenheiner testified that, in 1872, he could not get an answer from him, beyond the sound represented by the letters, M,” “M,” M.” The last of March or first of April, 1873, he called to see him in relation to a notice which had been served requiring him to shore up one of his buildings, and all he could get, by way of response, was a mumbling noise represented by those letters. Stepham had shaved him for years; borrowed $500 of him ; called to pay the interest and finally the principal, but failed to obtain any intelligible answer from him. Moser, an old friend, could obtain no answer from him, though he seemed to try to say something; Scholls, Pfluger, Hahn, Moore, Stadler, Catharine Mounninger, Werner, Arnold and Whealan met with no better success. Koch lived in his building and saw him often in 1872-73, but could then secure no answer from him. Sackett had important business with him, but stated that he never heard him speak; and Ann Browning, ' whose brother married his daughter, found him in the same condition. These were not witnesses who failed to hear him speak simply ; but they were either old friends and acquaintances, with whom he had been accustomed to converse, or persons having business with him, concerning which he was. interested to speak if he possessed the power of doing so. And yet, not a word was uttered by him in their presence, either near to or after the time when these instruments were made. On very many of the occasions when he was addressed by them, he did utter vocal sounds of an unintelligible character, showing that he would have spoken if he could. All this evidence was of the nature of positive proof that he had lost the power of speech, and was properly so considered by the surrogate. Some of the proponents’ witnesses mentioned occasions of his speaking when other persons were present, who positively contradicted the statements made. Among these were Mrs. Schmoll and Henry Hermann. The latter stated that the decedent answered Tully, the physician who attended him, the questions asked from the twenty-fourth of September to the time of his death. ■ But Tally testified that he examined his tongue and found one side of it paralyzed, and that he was incapable of speaking for that reason. He added further, that his body was paralyzed upon one side, and he thought it was the right side. From the appearance, he considered the disability one which had extended through a period of two or three years. He thought it an advanced case, and was informed by his wife that he had been first attacked about three years before. Heynemann stated that she informed him the same, and Geissenheiner testified that the decedent gave him the same information in 1872. Other evidence was given of his inability to shake hands with his right hand, and of his actual failure to do so, by Challier, Pfluger, Feldheim, Heynemann, Moore, Ann Browning and Werner; while Hettinger, Schmidt and some others testified that he did shake hands with them. It also appeared by the statements proven, which his wife had made, that he was unable to move himself in bed ; that he could not control the calls of nature; and required to be fed like a young child. Other evidence was given confirmatory of the same condition, while the proponents gave evidence of the contrary. The preponderance, however, was decidedly with the contestants, and for that reason the surrogate was certainly right in adopting their theory of the case. Challier, who saw the decedent in 1873, testified that Mrs. Eollwagen told him that the decedent was not able to speak. Graham, who was fitting the carpets in the new house, stated that she told him that it was a stoppage of speech that he had. Ann Browning, who called to see him in July, 1873, said that his wife informed her that he could not say anything. Dr. Goulding did swear that he did not have paralysis, and he probably did not, so severely as to completely disable him; for some of the witnesses mention the fact that he did, on a few occasions, walk a few steps in the house, and also seemed to drag his feet along while being assisted by others. The doctor was probably incorrect in his answer, because he himself said that he never examined his tongue to see whether it was affected by paralysis or not; and the other evidence appears to be entirely controlling on the subject.

In view of all that was given, it is highly improbable that he could speak at all when this propounded will and codicil were made. Bor that reason it cannot be supposed that he, by words, requested the witnesses to witness either instrument, or declared either to be his will or codicil. If he could have spoken, he certainly would have done so on those occasions, and if he had the ability to speak then, and did not, that would be a strong circumstance showing that he did not design to sanction what his wife and these witnesses were endeavoring to do in his name. That he nodded and made a guttural sound, in answer to the question, whether he desired the witnesses to sign, and declared the instruments made to be his will and codicil, are altogether too uncertain evidences of assent to sustain documents of such importance, in view of the other evidence in the case rendering those acts, at the most, equivocal. That movement may have been sufficient, in a general sense, for the ordinary emergencies of his life, where mistake or misapprehension would result in no serious consequences.But to allow it to be the means of sustaining an important disposition of property by a will and codicil, would, under the circumstances appearing in this case, be dangerous in the extreme, for the reason that such a determination would be made without any reasonably sure foundation for its support. Oases are cited in the argument and points of the proponents’ counsel, in which testamentary dispositions of property have been maintained upon evidence of assent conveyed by signs and motions. But they were not of that uncertain and equivocal character that they appear to be in this case. Bor that reason those authorities cannot be accepted as controlling the present controversy, and there is nothing in them fairly justifying the extension of the principle maintained by them. According to the testimony of Mr. Geissenheiner, who, for many years, had been the decedent’s counsel, he was in the habit of nodding in conversation, without limiting the movement to the expression of an assenting design, and, sometimes, even when a negative answer was given in words. He said that he had a habit of nodding when he spoke, whether he agreed or whether he differed ; and that was sufficient to render the act one of uncertain signification, even though ordinarily he may have designed the expression of assent by means of it. After he was deprived of the power of communicating such thoughts as he still might have, by speech, he accompanied his nods by sounds of a variable character. When Stephan endeavored to talk with him upon one occasion, he represented the sounds the decedent made, by the letters “M” “M” “M,” “ghagh” “ghagh” “ghagh,” with a movement of the head showing a nod. Moser represents the sounds made in his presence, by the letters “ ghagh,” combined and repeated several times. He said that the decedent nodded and made a sound. Fieldheim testified that this inarticulate mode of expression commenced before the time when he was married; and when, by watching, words might be distinguished and understood, the sounds he represented were still different from the others, being expressed by the combined letters “ ngh ” ngh ” “ ngh ” “ ngh.” Schaaf endeavored to converse with him on the 4th of June, 1873. He was the person who had the contract for the mason work of the building being erected, and to whom, for that reason, the decedent would be very naturally desirous of expressing himself if he could. But he said that the decedent merely nodded and made the sounds “ Ehn ” “ Ehn ” “ Ehn;” and he afterward added, that when any one spoke to him, he, most of the time, made that sound, followed by the sound “ wehn ” “ wehn ” “wehn.” Heynemann, the collector of the monthly gas bills, said that, after 1872, he made the sound “M” “M” “M,” accompanied with a quivering movement of the lips. The sound Challier, the carpenter, heard, was “p’f” “p’f” “p’f” “p’f.” Striker, who was cashier of the Murray Hill Bank, and saw the decedent there, at the directors’ meeting, in February, 1872, stated that he nodded and made a sidewise movement of his head. He said that he would make such a motion and endeavor to speak, but he had no conversation with any one during the meeting. Moore stated that he moved his head while he was at the house, the latter part of 1872, and made a guttural sound, expressed by the letters “hagh” “ hagh ” “ hagh ” “ hagh.” The sounds Stabler heard, were “ gh ” “gh” “gh.” When Graham saw him, in May or June, 1873, he did not speak, but moved his head from shoulder to shoulder. To Arnold he made a sort of gurgling noise. When the proponents’ witness, Rettinger, saw him, in November, 1872, he understood him to say “ how do you do,” and heard another noise, not expressed by words, issuing from his throat. And Wagner, another witness called for the same parties, who saw him in January or February, 1872, stated that, in answer to his salutation of how do you do,” he nodded his head and expressed the word so.” But that, he said, was not done distinctly, but so that he could understand it. The sounds made at the times when the propounded instruments were executed, have already been mentioned, and, as various as they were, it was the decedent’s habit, almost invariably, to accompany the utterance of each with a nod or some other movement of the head. Why the sounds were made, by him, cannot be ascertained from any direct evidence given on the hearing, and it is not probable that any could possibly have been obtained. But, as they were made by way of response when he was addressed, they must be evidence of ineffectual efforts to speak, and for that purpose to express thoughts he probably entertained but could not utter. And if the differences in the sounds meant anything, they must have been designed for different thoughts, and as such would necessarily qualify the signification of the movement made by the head. Ro reasonably certain indication of unqualified assent could therefore be established by the nod. With one expression of sound it probably meant one thing, while with a different sound an entirely different thing. But what in either case was designed to be expressed by the combination, no possible means existed for determining with anything like reasonable certainty, and for that reason the sounds made would be unsafe and unreliable circumstances for the' conclusion that the decedent intended, by means of them, to express his assent to either instrument propounded for probate, or his desire that they should be witnessed by the persons in his presence, as his will and codicil.

But-if the decedent had actually subscribed the controverted instruments, and the formal requisites prescribed by the statute had been proven to have been observed, it is claimed by the contestants that they were still properly rejected by the surrogate, on account of fraud and undue influence. These objections assume that if they were executed at all by the decedent, that act may have been designedly performed by him in each instance, but under the controlling influence of bis wife, and in consequence of a fraudulent misrepresentation of the contents of one or both-of them. The evidence shows no serious disagreement between the decedent and his children or grandchildren, and no reason, therefore, why he should have been disposed to deprive them of his property. On the contrary, Mrs. Perry, who evidently marshalled her recollection for the benefit of his widow, stated that George and Louis were always respectful enough to their father; and he does not seem to have found fault with either Frederick or Louis, but he did not like their wives. He was disappointed in George, who married without his approbation, and afterward went to California without his assent, and did not prove industrious or thrifty, as he had the right to expect he would from the advantages secured to him. But no such dissatisfaction was engendered between them as would be supposed to lead to any testamentary disposition of the father’s property seriously prejudicial to the natural expectations of either of his children. And from the circumstances under which he married the appellant, she had no uncommon claims upon his liberality. It is true, she gave him constant, kind and commendable care, attention and assistance; but the duty to observe and render that, fairly arose out of the fact that she married an old, infirm man, in decaying health, who could probably survive that event but a few years at most. It was reasonably to be expected that such offices would be required of her, and, according to the uncontradicted evidence given upon the hearing, she did anticipate that such would be her duties, and for their performance she considered herself entitled to be made his wife. Upon this subject, Barbara Koch, who lived in the family as a domestic for some time, testified that Mrs. Eollwagen told her that father was ashamed to get married; that he had promised to marry her, and then he said he would not do it.” “ She said, if he did not marry her, and he died without their being married, people would laugh at her, and she would not stay in this way. She said if she staid there and kept house, and Mr. Eollwagen died, people would laugh at her and say she had to be his wife anyhow, without marrying, and she would not have a bad character like this.” “ She would not stay there without he married her.” She also testified that Mr. Eollwagen informed her that he did not like living with his son Frederick, and said : “ I think I would do better to take a place for myself, and take somebody to keep house for me; I am old and sickly-, and I don’t like to get married again; and I mean to have somebody to take care of me; if I like to get married I can get plenty of women or young girls to get married to, but I am too old to get married; I am sickly, and I don’t like to get married again ; but I think I would do better to take somebody to keep house for me, and pay them by the month.” Martha Miller, a witness, and friend of the appellant, testified that she heard the decedent say that he must have somebody to take care of him, and that he had married Lena; that he .must have somebody with him to attend him; that he liked her, and if he had such care as he had from her, he would have lived longer. None of this evidence has been in any manner questioned, assailed or denied. If the appellant’s statements had been incorrectly repeated, it was within her own power to controvert that fact, but that she wholly failed to do. It may therefore be assumed that these statements were made by each party as they were given by the witnesses; and from them it clearly appears that affection had little or nothing to do with the marriage that was solemnized. It was, on the other hand, with both the parties to it, a matter of mere convenience and expediency. The evidence given by Barbara Shepard confirmed this conclusion, and it was entitled to consideration as long as it was in harmony with the statements of the other witnesses, although she testified evasively on some subjects, and was actuated by very decided feeling against the appellant. From the manner in which the marriage was produced, there was not the least probability that the decedent would be disposed to make any decided diversion of his property in favor of his wife; and nothing appears to have afterward occurred which could probably be supposed to make any change in his. inclination in that respect. On the contrary, he' received from his wife only the services and attention which his feeble and helpless condition required, and hé had previously expected to secure some person to perform for him; and for that, he advanced her to a position of affluence, from one of mere servility, in which she had received but fourteen dollars a month, by way of compensation.

Before that time, in repeated instances, he declared that his children and grandchildren were finally to have his property. It seemed to have been his purpose to restrain its actual division until his youngest grandchild attained the age of twenty-one years. But, with that -restriction, there can be no doubt but that it was his settled purpose that the property he had, should ultimately be theirs. The existence of that design was declared to his friends, Stephan, Moser, Dugrow, Moore, Koch and his relative Shepard. And that design appears to have extended beyond his marriage to the appellant; for, although he may have said to Mrs. Perry, as she testified he did, that he would alter his will so as to give her the house he had bought, in place of the one he had given her and afterward sold, that was in no way inconsistent with what the appellant said to Barbara Koch, when she stated “ that father made a will, but that he did not - give her anything of her own, but he let her live in the house in Ninth street, and he gave her so much that she would be able to live good, but nothing for her own ; that everything after this, fell back to his children, and she had nothing for her own.” This was a clear and explicit admission, that, in the will which had then been made, the design previously declared by the decedent to the other witnesses, had been carefully carried into effect, subject only to a life estate given to the appellant in their place of residence; and it must have related to the Rosenstein will, for no other appears to have, been made after their marriage until the instrument in controversy was executed. This statement must ■have been true, otherwise the appellant would have contradicted it, as she was perfectly competent as a witness for that purpose. The evidence given by Bellesheim did not conflict at all with its truth; for, while he thought he had made the instrument prepared by him the same as the one previously drawn by Rosenstein, except so far as it related to the house purchased, and the exclusion of Beers as executor, he added that he could not say whether the house sold was devised in fee, or only for life or widowhood, in the preceding will. This statement of the appellant as to the fact, remained uncontradicted, and, as it was a probable one, and the witness in no way assailed or impeached, the Surrogate’s Court was at liberty to accept and act upon it as the truth. According to the evidence which Bellesheim gave, he was directed by the appellant to prepare the first instrument made by him, so as to carry out the design of the decedent to give her the newly purchased residence in place of the other which had been sold. That, without anything further, would not entitle her to have it in fee, as long as the other had only been devised to her for life. Nothing was said about enlarging her interest in the estate. It was to be a mere substitution of one residence for the other. That intention was not expressed or in any way preserved, for the newly drawn instrument contained a devise to her in fee of the residence, which was merely to have been substituted in the place of the one that had been sold, and an absolute bequest of a third of the . decedent’s personal property. It is not necessary to determine by whose agency or intervention this change was effected. The instrument produced for probate showed that it had been made, and that, too, when the enfeebled condition of the decedent would render him entirely incapable of detecting it from the mere reading of the instrument in his hearing—the only possible means he had for information on the subject. That was a fraud, and one which was of so material a character as to justly require that the instrument should not be admitted to probate.

The testimony of Bellesheim, who drew both the instruments, shows that the instructions received by him were derived wholly from the appellant. It is true that she professed to convey only the wishes of the decedent, but there was no evidence, whatever, given, that she did that,, for no reliance could be placed on the nods and inarticulate sounds proceeding from him; and it was her interest to have the direction of his property changed, as far as that could plausibly be done, for the promotion of her own pecuniary advantage. In each instance she was the party who was really to be benefited; for if the child which was to be born was his, her rights were amply secured by the statute of the State,

In this respect, his situation placed him peculiarly under her control. He was helpless and dependent, and subject entirely to her influence. This is not a mere inference from his condition and the fact that she and her brother and mother were the only 'other inmates or occupants of the house, besides the servant; for the proof which was given of her own statements, shows that to have been the case. Stephan testified that she told him that Frederick Rollwagen, Jr., at one time wanted his father to sign some paper for him, and that he wanted to do it, but she told him not to, and he did not. She said that papa would not do anything unless she was satisfied with it — would not sign any papers. Mrs. Perry stated that he told her that Frederick wanted a power of attorney from him, but he would not give it; that they wanted to make a fool of him, so that when he wanted money he would have to go to them for it. But as that was in June, 1873, when the evidence fairly shows that he had lost the power of speech, no special reliance can be placed upon her evidence as to the fact. It appeared further, that none of his children or grandchildren were allowed to be with him, unless the appellant was present; and at the time when it was apparent that he was about to die, she declined to have them sent for, saying that he had directed that they should not attend him at that time, which, considering his feelings toward them, was certainly exceedingly improbable. Under these circumstances, even if the decedent had been shown to have comprehended and assented to the changes made in the disposition he had provided should be made of his property by the Rosenstein will, as long as they were wholly for the benefit of the appellant, under whose direction and procurement they were effected, the presumption would be, that they resulted from her .influence, unduly and improperly exercised over him. This was substantially the doctrine of Delafield v. Parish, Tyler v. Gardiner, Nexsen v. Nexsen, Lee v. Dill, and Marvin v. Marvin, decided by the Court of Appeals but not reported, a copy of the prevailing opinion in which has been procured and will accompany the present decision,

The presumption as to the codicil, in this respect, is still stronger than that attaching to the will; for it was said that the decedent had directed the change on account of his wife’s maternal condition, while, according to the evidence given by Mrs. Miller, he knew that very well in the third month; which could not have been later than May, 1873, as it appeared when the .child was actually born. If that had been the reason, the instrument propounded as his will would probably have contained all that was requisite for the protection of the interests of the child, which, even then, was expected to be born. The truth is more likely to be found in the other circumstance, that the change was attempted for the sole object of securing his wife the four lots upon Avenue A. * **§If the wife had, as she said she had, acquired so much control over her husband as to prevent him from subscribing papers he was willing to execute, it is very easy to see that, by the same means, she could procure the execution of those she desired from him for the promotion of her own individual interests, even though they might not otherwise receive the approval of the little judgment he was capable of exercising. And that circumstance, together with the facts appearing in the evidence: that the directions which were given for the changes made in the disposition of the decedent’s property, all emanated from her, without any reliable evidence of their approval by his uncontrolled judgment; that they were exclusively for her benefit; that the details of making them were, substantially, arranged and managed by her; that neither of his children was on either, occasion apprized of what was being done; that no reason existed in his relations with or feelings toward her or his children and grandchildren, which could naturally be expected to produce such changes, combined with his own enfeebled and dependent condition, justified the conclusion adopted by the surrogate, that they resulted solely from the controlling influence exercised by her over him at the times when those changes were effected, and when he was too weak and too much reduced to maintain and exercise his own will concerning the propriety of his acts.

A very large number of authorities have been cited by the counsel for the appellant, showing under what circumstances it has been held that the proof of undue influence was insufficient to avoid testamentary dispositions of property, and the extent to which influence and importunity may be lawfully used. But as none of them seems to bear upon the particular principle applicable under the circumstances of this case, or on the propriety of its application to the facts appearing, no special reference to them can be required. It is enough that the authorities relied upon appear to fully sustain the conclusion stated, without entering upon any examination of others that can in no sense be accepted as controlling upon the case established by the proof.

rio injustice will be done to the appellant by the result which has been, maintained; for, as she expressed the fact herself, she will “ be able to live good” on what she may lawfully secure from the decedent’s estate, even though it shall revert to his children and grandchildren at the period of her own decease.

There was no error in the disposition which the Surrogate’s Court made of the case, and the decree appealed from ought therefore to be affirmed, with costs.

Davis, P. J., and Lawrence, J., concurred.

Decree affirmed, with costs. 
      
       Morehouse v. Mathews, 2 Com., 514; Van Deusen v. Young, 29 N. Y., 9; Messer v. People, 45 id., 1.
     
      
       Phila. and Trenton Railroad Co. v. Stimpson, 14 Peters, 448, 461; Houghton, v. Jones, 1 Wall., 702.
     
      
      3 R. S. (5th ed.), 151, § 73.
     
      
       Bradley v. Mutual Benefit Ins. Co., 45 N. Y., 422.
     
      
       Newton v. Pope, 1 Cowen, 109; Dolsen v. Arnold, 10 How. P. R., 528; Lomer v. Meeker, 25 N. Y., 361; White v. Stillman, id., 541.
     
      
      Botsford v. McLean, 45 Barb., 479, 486, 490; Rider v. Powell, 38 N. Y., 310; Welles v. Yates, 44 id., 535.
     
      
       3 R. S. (5th ed.), 145, § 44.
     
      
       25 N. Y., 9, 35, 36.
     
      
       35 N. Y., 559, 593, 593.
     
      
      
         2 Keyes, 229, 233.
     
      
       11 Abb., 314.
     
      
       The following is a copy of the opinion referred to :
      In Court of Appeals;
      GEORGE L. MARVIN and ELIZABETH, his wife, v. LE GRAND MARVIN and others.
      This suit in partition is authorized by section 2 of chapter 238 of the Laws of 1853, in which the plaintiffs, as heirs at law of Sarah L. Marvin, have the right to contest the validity of the will of Mrs. Marvin.
      The Supreme Court ordered issues which were settled to be tried by a jury, and amongst these issues were two which the jury found against the will, to wit: That the testatrix executed the will under the restraint of Le Grand Marvin, and also that she executed the same under the undue influence of the said Le Grand.
      On an application to the Special Term for a new trial, the same was denied, and judgment was given for the plaintiffs upon the issues found, setting aside the said will, and decreeing partition among the heirs at law.'
      The defendants appealed to the General Term from the judgment, where the same was affirmed, and the defendants have appealed to this court. The questions material to be considered on this appeal, will be stated in the opinion.
      
        TS. 5.. Tedder and Le Qramd Marvin, for the appellants.
      
        Sherman S. Rogers, for the respondents.
      Mason, J.:
      The appellants rely mainly upon alleged errors \in the charge of the judge to the jury, in obtaining the reversal of the judgment and a new trial.
      The testatrix, an aged lady in very feeble health, and when just upon the verge of the grave, and while living with the defendant, Le Grand Marvin, executed the will in question, whereby she devised nearly all her estate, real and personal, amounting to $75,000, to the said Le Grand. This will was drawn by the said Le Grand Marvin, and executed, under the circumstances above stated, while she was extremely feeble, and but a very short time before her death; and by the will she entirely disinherited her other only son and heir, George L. Marvin.
      The judge charged the jury, in substance and effect, that the legal presumption arising from the fact that this will was drawn by Le Grand Marvin, the principal legatee, was, that the instrument was executed under undue influence, and that, unless that presumption had been satisfactorily overcome by evidence given, the issues, so far as they involve the question of undue influence, should be found in favor of the plaintiffs. The charge must be regarded in its application to the case then on trial before the court, and the jury must have understood the judge as speaking in reference to the will in question, and the situation and relations existing between Le Grand Marvin and the testatrix. The judge was speaking of the legal presumption arising from this will upon the undisputed facts surrounding its draft by this principal legatee.
      Applied to the case before us, I do not think the pharge is objectionable. ,
      By the civil law, such a will, drawn by the legatee, would be absolutely void. “ Qui se seripeserit hmredem, rendered void all the provisions in a will in Ms own favor.”  The courts in England and in this country have not gone the length of the civil law, and held such wills absolutely void. Yet the better rule, to be be deduced from the adjudged cases, is, that a presumption of undue influence shall indulged against them, when the testator is feeble, weak, and in advanced old age. I do not mean to say that such legal presumption will be indulged in, in every conceivable case, but the rule to be deduced from the adjudged cases in our own courts, will fully justify this charge in its application to the case at bar. I will not go into a review of the cases, but content myself by referring to some of the most prominent: Crispell v. Dubois (4 Barb., 393-398); Delafield v. Parish (25 N. Y., 9, 35-36); Barry v. Butlin (1 Curt. Eccl., 6, 37); Lake v. Ranney (33 Barb., 49; 16 id., 198; 30 id., 134); Lee v. Dill (11 Abbott Pr., 214); Newhouse v. Goodwin (17 Barb., 236).
      The case shows that this legatee who drew this will is a lawyer, and was, consequently, her legal adviser in the drawing of the will, and the case comes very near the suspected relation of attorney and client, where fraud or undue influence will be presumed from the relation of the parties. The charge of the judge upon the trial, as to what constituted undue influence that will avoid a will, was clearly right. He instructed the jury that, in order to constitute undue influence within the meaning of the issues, it must be such an influence as, in some degree, destroyed the free agency of the testatrix, and constrained her to do what was against her actual will or intention, and which she was unable to refuse, or too weak to resist. This is in strict conformity to the law. Under such a definition as is embraced in this charge, the influence must be such as to deprive the testator of the exercise of Ms free will.  Undue influence and restraint are synonymous terms in our law. There is at least no case of undue influence that would avoid a will, that does not fall under the definition of restraint. If the coercion or influence over the mind of a testator is so strong as to destroy free agency in the act of making the will, then such person is certainly laboring under restraint; for the ascendency of another will over that of the testator to such an extent as that, is just as much a restraint upon him as though it were produced by physical force. His own will no longer controls his actions, but the will of another. It is the same whether the effect is produced by physical force or actual coercion by some other instrumentality. There was no error, therefore, in the third paragraph of the judge’s charge, in which he instructed the jury that, if they found there was undue influence in this case, they might find restraint also.
      There may be an error in this paragraph of the charge, but it cannot avail the appellants, for it was against the plaintiffs instead of the defendants. The judge did say, “ the testimony shows there was no restraint,” and then left it to the jury to say whether the will was not executed under undue influence, which he instructed the jury must be influence so strong as to destroy the free agency of the testatrix, “ and constrain her to do what was against her actual will or intention, and which she was unable to refuse or too weak to resist.” This calls for a finding, literally, of a restraint over the testatrix in making her will. It is but reasonable to say that the judge meant physical restraint, when he told the jury that the testimony shows there was no restraint. Wé cannot impute to the judge the inconsistency of instructing the jury, in the first place, that the testimony showed there was no restraint, and then leaving to the jury to say whether there was or not. There has been some mistake, probably, in the settlement of the case. It is not important how it arose, as the error, if any, was against the plaintiffs, and could not have prejudiced the defendants. The issues were fairly submitted to the jury; the jury left free, in the charge, to find the issue whether this will was executed under undue influence or restraint, and they have found both issues in favor of the plaintiffs, as they should have done if they found either in their favor.
      I have examined carefully the rulings of the judge upon the trial, upon questions of evidence, and I am not able to discover any errors therein, calling for the reversal of the judgment'. The court is not bound, in reviewing the trial of issues before a jury in equity cases, by the same technical rules that prevail on bill of exceptions. If the court can see, from the whole case, that no error has been committed by the presiding judge prejudicial to the complaining party, and, upon the whole case, the verdict appears to be right, the court will not grant a new trial.  In this class of cases a new trial will not be granted merely on the ground that the judge received improper testimony on the trial of the issues, or that he rejected that which is proper, if, on the whole case, the court is satisfied that the result ought not to have been different, if such testimony had been rejected in the one case or received in the other,  The court hold a broader discretion as to granting new trials in such cases, than they do in actions at law. And this is especially so, where the issues in an equity case have been ordered to be tried by a jury. I do not think any of the rulings upon questions of evidence are erroneous. None, certainly, which will justify this court in granting a new trial. The verdict of the jury is justified by the evidence in the case, and the judgment should be affirmed.
      For affirmance—Mason, Woodruff, Drover, James and Daniels, JJ.
      For reversal—Lott and Hunt, JJ.
      Judgment affirmed, with costs.
      October 32, 1869.
     
      
       4 Barbour, 398; 25 N. Y., 35.
     
      
      † 9 Paige, 242; 4 Kent’s Com., 438 (3d ed.); 9 Ves., 292; 12 id., 372; 13 id., 138; 18 id., 125; 1 Hoffman’s Ch., 421; 3 Sanford S. C., 696; 10 Paige, 382; 11 id., 538; 16 N. Y., 285; 23 Barb., 430; Willard Equity, 173, 174; Story Eq. Jur., vol. 1, sec. 310.
     
      
      
         Gardner v, Gardner, 34 N. Y., 155; Seguine v. Seguine, 3 Keyes, 663-669.
     
      
       34 N. Y., 162; 3 Keyes, 669; 41 Penn., 312.
     
      
       Lansing v. Russell, 13 Barb., 510; 3 Barb. Ch., 325; Apthorpe v. Comstock, 2 Paige, 482; Van Alst v. Hunter, 5 Johns. Ch., 148; Lansing v. Russell,2 Comst., 563; Clayton v. Yarrington, 33 Barb., 144; Sim. & S., 150; 2 Russell, 63.
     
      
       2 Comst., 563; 2 Paige, 682; 1 Sim. & S., 150; 2 Russell, 62; and the cases last above cited.
     
      
      Delafield v. Parish, 25 N. Y., 22.
     