
    In the Matter of the Probate of the Last Will and Testament of Sara A. McCarty, Deceased. Mary E. Butler and Others, Appellants; Joseph F. McClean, an Executor Named in the Propounded Will of Sara A. McCarty, Deceased, Respondent.
    Second Department,
    December 30, 1910.
    Evidence—presumption—fraud —will—:undue influence — excluding cousins from estate — bequest to attorney. ' '
    Where a will was delivered to the -testatrix after execution it will he presumed to have continued in her possession until the contrary is shown.
    Fraud and undue influence in procuring the execution of a will must always be proved;,they are not presumed.
    A testatrix may give her entire estate to intimate social and business associates to the exclusion of her cousins without giving rise to the presumption that undue influence was exercised upon' her. ;
    Where the bulk of an estate is. divided between the testatrix’s secretary and her attorney who drew the will, the court will scrutinize the will and the surrounding circumstances to see that no fraud or undue influence was exercised.
    Where, however, it appears that the testatrix executed the will over three years before her death, during all of which time it remained in her possession; that-therein she suitably provided for the widow of-a deceased brother; that the-subscribing witnesses, who were old friends of the testatrix, were personally selected by her; that she asked, one of them to be a" witness over a month before the execution of - the will; that she had the will in her possession when she went to the lawyer’s office to execute it, and the subscribing witnesses testified that testatrix was of .sound mind and acting without restraint when she executed the- will, no presumption of undue influence arises because of the fact that the bulk of the estate was divided between her secretary and attor- . ney to-the exclusion of certain first and second, cousins, with whom she had never had close relations. ■
    ■ Appeal by Mary E. Butler and others, contéstants, from a decree of the Stirrogate’s Court of the county of Kings, -entered in said,Sur rogate’s Court on the 15th day of March,. 1916, .admitting to probate the propounded will of Sara A. McCarty, deceased.
    
      Wax JD. Sfeuer [John C.Judg'e With him. oh -the-brief], for the appellants... ; , '. ' . •
    
      Charles U. Beeícett [Everett Greene with him on the brief], for the respondent. • .'
   WOODWARD, J. :

Sara A. McCarty, a resident of the county of Kings, died at Goshen, Orange county, on the 17th day of August, 1909, leaving a last will and testament relating to both real and personal property, in which she nominated and appointed Joseph F. McClean and Everett Greene, the latter an attorney at law, as executors. This will attempts to dispose of a large estate, and has been admitted to probate, the contestants appealing to this court from the decree of the Surrogate’s Court admitting the same to probate, it being the contention of the contestants, certain heirs at law and next of kin, that the paper propounded as such . last will is void, being tainted with undue influence amounting to fraud. ;

The will in question bears date of March 5, 1906, and the testatrix lived until the 17th day of August, 1909, or more than three years aft.er making the will, during which time, so far as the evidence discloses, she retained possession of the instrument. At least ' the evidence in relation to the possession of the will goes no farther than to show that at the time of the execution of the same it was delivered to the testatrix, and possession having been shown in her, it must be presumed to have continued until the contrary is-made to appear. The grounds of objection asserted originally on behalf of the contestants were: (1) That the propounded instrument is not the will of the testatrix; (2) that the propounded instrument is not properly executed according to law; (3) that the testatrix was not of sound mind, memory and understanding, and capable of making a will; (4) that the propounded instrument' was not freely executed by the testatrix ; (5) that-the execution, if any, of 'the propounded instrument was procured by fraud and undue influence upon the testatrix by the executors and residuary legatees, or their privies, and (6) that the propounded instrument is illegal and void in respect to the residuum. -Upon the hearing before the surrogate, after some evidence had been introduced tending to show that the testatrix was of sound mind, counsel for the contestants"suddenly abandoned this phase of the case and asked to amend the answer, so that it should be conceded that the testatrix was of sound and disposing mind, which was done, and all of the other objections, with the exception of the one relating to undue influence, were practically abandoned, and are not urged here. The real question "presented is the effect upon the will 'of the gifts of the testatrix to the executors, one of whom appears to have acted originally, as the private secretary of decedent’s brother, who died in 1905, and upon thelatterls death to have occupied a like relation to the testatrix, and the other was her attorney in the drafting and execution of the will, aiid probably acted generally.in that capacity, though this does not clearly appear. The contestants offered, no evidence;, but relied •upon the fact of the fiduciary relations existing between the executors and the. testatrix' to raise >. presumption Of fraud; or undue influence, because of the fact that the will carries, a large bequest to each .one of them, to the exclusion of a large number of the next of kin of■ the testatrix. The learned surrogate,, after listening to the testimony of the subscribing witnesses, and to that of Joseph F.. McClean who was called a.S' a Surrogate’s witness, decided -that there was no ground for holding that the testatrix had been imposed upon in the disposition of her estate, and admitted the will to probate.' •

• We áre of the opinion that the relations of the executors, were such as to warrant the court in closely scrutinizing the will and the surrounding circumstances^, but that there were no facts disclosed by the will, itself, or by any of the conditions surrounding its execution, which give rise to" the presumption of fraud'; that is an issue which must always be proved, and cannot be assumed. “A person of sound inindj acting with- full knowledge of her 'affairs, competent to understand her relations to those whom slié 'wished to benefit, may bestow her bounty as-she likes and no presumption of unfair' dealing can arise, although one of the beneficiaries happens, to. be her attorney. -Undue influence,, when relied upon to defeat a testamentary disposition-,' must. be. proved, and not merely assumed to exist. (In re Smith, 95 N. Y. 516.). It was the duty of the contestants to prove, if 'they .could,-that the will was.- other than the-free act of the. testatrix, and until some, impediment was' shown, there was.no need of further testimony from the proponent upon the point. * *• * The evidence discloses a complete knowledge 'on the part of the testatrix of tire contents of the will, a full legal capacity and the absence of restraint.” (Loder v. Whelpley, 111 N. Y. 239, 250.) The contestants rather reluctantly admit this general rule, but it is urged' that the fiduciary relation, coupled with a large bequest to each of them, taken'in connection with the1 fact that a large number of the natural objects of her bounty— her heirs at law and’next of kin — were excluded from a participation in her bounty, is sufficient to give rise to the presumption which is urged, and there are some expressions in judicial discussions of great character and respectability which give some color to this contention, but we think the cases will be examined in vain for an adjudication which holds that under circumstances which exist in this cáse the contestants have been permitted to prevail without offering some affirmative evidence.

It sounds well to declaim about the exclusion of those who are the natural objects of one’s bounty, but before we assume fraud as against reputable citizens, we should inquire who these “ natural Objects” are, and what claims they had upon the testatrix’s bounty. The .contestants who appear here are Mary E. Butler, a first cousin of decedent, Bose F. Kane, a second cousin of decedent, and' Mary Kane, who occupied . the same relationship as the • latter. There were twenty-eight other, cousins and one second cousin of the decedent, and perhaps others, who have not sought to interfere with the probate of the will, and these" cousins and second cousins of the decedent are the only ones embraced within the group of natural objects ” of the testatrix’s bounty, and who are relied upon to afford the evidence of fraud to overthrow this Avill. Fifteen of these cousins, so far as known, live in Ireland, the most of them in County. Down; one of them was last heard of in Australia and another in Alaska; one of them resides in the Isle of Man ; four' of them in Glasgow, Scotland ; three of. them, legatees under the will, live-in Brooklyn, Bosendale, Ulster county, and Brooklyn, respectively; one hi San Francisco and another in Liverpool, England, and the póníestants Mary E.-Butler, Mary Kane and Bose Kane, as well as Arthur Kane; a second cousin, live either in Greater Mew York or Mount Vernon. The decedent.was at least'sixty years of age, find had resided in this country for many years, and it is easy to see how she could have been oblivious to the claims -upon her of these cousins in Ireland, Australia, Alaska, Glasgow and Liverpool, .whom, she had probably never seen or heard of except as a mátter of family record ; and it might even be guessed that she was not recklessly unmindful of the duties of kinship in not keeping track of and remembering' in her wild thosé second cousins, and even a first one, who now seek, to overthrow the will. When we remember, that under the general rule of descent the real estate passes, first to thelineal descendants, then to the father, then to the mother and lastly to the collateral relatives,, and.that under the. law. of distributions the interests of cousins are still more'remofó (Decedent Estate Láw [Cónáol. Laws, chap. 1'3; Law’s of 1909,- chap. 18], §§ 81-98, as amd. by Laws of 1909, chap. 240), the “ natural objects of the testatrix’s bounty” have something'of the character of a' dissolving' view; at least they are.not as formidable in fact as they appear in rhetoric, and we are of the opinion that a person of sound and disposing mind might absolutely close his eyes and his mind to the existence of his Cousins, and grant his 'entire estate to 'intimate business and social associates, without giving rise to; the presumption of having been defrauded by undue influence in the disposition of his property.

Having placed these “ natural-objects of the testatrix’s bounty.” in their proper light,' as they appear in .the la'vr, let us examine .briefly the will, that we may discover whether it does, in fact, disregard the claims of those who had a fight to expéct from lief. First she gives to each of two priests the sum of $5,000, with a. request for masses for the repose of her soul..- Then she gives to her’executors' $50,000 .for a memorial for her deceased brother, John McCarty,, “according to my. wishes expressed-to them.”.' Mext she gives $i,000’each to a day nursery: and to a hospital, each of them identi.fled with the Roman Catholic church, in which it appears from the testimony she was much interested. This is followed by a bequest .of $1,000 to a certain bishop and his successors'- for the purpose of caring for her family lot in the cemetery. Following this is a bequest of $15,000 to the widow of her deeeaséd brother, and like- ■ wise the-life use of the family home — for it appears from the testimony that.the decedent and her brother and" his wife had\all.lived together at 267 Berkeley place, Brooklyn, and that the widów still resided there at the time of the limiting of the will —,to the .vvidow: . Added to this is-a trust fund of. $50,000, the in come, of WhicnJs to be paid to the. widow of her deceased brother. Clearly there is ■ nothing unnatural or inhuman in these provisions. John-McCanv was her only brother;' it is intimated, rather than proven, that some^ .part of her-estate came from this brother, and in making these provisions for her brother’s widow,' who had made her home with the decedent during and after the death of her husband, it would seem that the “ natural object of her bounty ” was being looked after with a fair degree of assiduity. In the next paragraph of ■ the will the 'testatrix gives $5,000 each.to her cousins Thomas Craig, Margaret Allen and Patrick McAvoy. This she follows with a gift of $5,000 to “ my friend and Godson, Joseph F. McClean,” together with “ all my stock and interest in the two corporations,” naming them. This Joseph F. McClean is one of her executors, and who is alleged to have abused his fiduciary relations, and the next bequest is of $1,250 each to “my friends Catherine McClean, Charles Lyons, William Lyons and Anna Lyons.” ' Another gift of $1,00,0 is made to William McClean, and still another gift of $1,000 each is made to Mary Connolly and Anna Connolly of Cold Spring, FT. Y., and then in the 14th clause of the will the testatrix makes the bequest which has stirred up the contestants to activity: , She gives all' the “ rest, residue and remainder ” of her estate “to the persons hereinafter named as executors of this my Will; in the use of the .same I am satisfied they will follow my wishes. But this gift, devise and bequest to them is personal and absolute, without condition, limitation or restriction.”

What is there about this will which justifies a presumption that it was fraudulently procured V FTo fact is shown which casts suspicion upon it. The subscribing witnesses were persons personally selected by the decedent; Mrs.- McCosker was asked by the decedent to become a witness to her will more .than a month before its final execution, and on the day of its execution Mrs. McCosker was at the home of the decedent, and the two of them went -to the office of the decedent’s attorney, one of her executors, for the purpose of executing the will, and when they arrived there decedent took the will from a bag which shé carried and declared the same to be her will and asked Mrs. McCosker and William J. Buttling (former sheriff of. Kings county), whom she had sent for, to sign the same as witnesses. Mr. Buttling testified that he had known the testatrix from the time that he was a boy; that he knew her well enough so that he addressed her as “ Sara Ann,” and Mrs. McCosker testified that she had known her intimately for many years ; that they visited at each other’s houses, and that at the time of the original request to act as a witness decedent -had told her' of her desire to make a will but that she desired to read it over a few times "to' see that - it was just what she wanted before it was executed-. Both of these - witnesses .testify that. the. decedent was in sound mind and that she was without restraint in'the execution-df the will so far as. they could observe. As was said by the court in Loder v. Whelpley (supra), “ The'proof of the execution of the will was complete and perfect, it was followed by-a cross-examination, at great length, ^ * .* - serving only to confirm, and strengthen,, by a variety of repetitions, the facts related by the subscribing- witnesses. • The testatrix .was shown to be of perfect. mind- and memory, to have executed the instrument-in the presence of her -friends and neighbors, they signing, as,, witnesses, at her request, she at the samé time declaring the paper to be her last will and testament.” This was exactly the case here.' The testatrix had-the- matter under adyisement • for a month or more ; she mentioned it to her friend and •asked lief to be a witness .when, she had satisfied herself of the contents- of tlie will; that it was what she wanted, and then she called on this-same friend to go with her to the lawyer’s office and to sign-the will as a witness. She had the' will in her possession when she entered the lawyer’s office; .she executed the same.with all the formalities of the ■ law in'the'presence of witnesses ’ whom she had selected from among her intimate friends, and then she took the - completed will away with her and kept it for three years before she passed ón, and no-.one appears to suggest-that she ever made' any effort to discredit the will, or'that she had any such relations-with-her cousins-as would have prompted her, under any circumstances, to have given them a .place in her' will, and this court' is asked to presume that this will was. fraudulently executed, because two of the beneficiaries happened to occupy'confidential relations with her.

We think the disposition made of-the matter by the learned surrogate was in harmony with tlie law, and that tlie decree should be-affirmed, with costs., - -' "

■ HirsohrErg,. P. J., Burr,. Thomas and Carr, JJ., concurred. •

' Decree, of the Surrogate’s Court of Kings county affirmed, with . costs. '  