
    In the Matter of the Probate of the Last Will and Testament of Alexander H. Weed, Deceased. Mary E. Arthur, Appellant; Frank B. Wickes, Respondent.
    Third Department,
    March 8, 1911.
    Evidence —transactions with decedent—testimony by wife of devisee — erroneous admission of evidence by surrogate — court — powers of Appellate Division — devise to attorney at law.
    On a proceeding contesting the probate of a will it is error to allow the wife of the chief devisee and proponent to testify as to personal transactions vnth the testator for she is an interested person, deriving an interest under the deceased, within the meaning of section 829 of the Code of Civil Procedure in that if the will be probated she takes an inchoate right of dower in the lands devised.
    The Appellate Division will not reverse a decree or order of the surrogate for an error in admitting evidence unless it be satisfied that were the incompetent evidence excluded a different result would have been reached.
    Under the power conferred by section 2586 of the Code of Civil Procedure the Appellate Division on an appeal from the Surrogate’s Court may examine and determine the case anew.
    An attorney at law is not incapable of taking under a will drawn by him for his client.
    Any suspicion arising from the fact that an attorney at law drew a will in which he was made the principal beneficiary is removed by proof that the will complied with the intention of the testator disclosed a long time before its execution, that it was an exact copy of a holographic will which the testator did not sign merely because he did not like its appearance, and that-the attorney, the testator’s brother-in-law, was his most intimate friend, while the testator was not on good terms with other relatives.
    Appeal by Mary E. Arthur from a decree of the Surrogate’s Court of the county of Essex, entered in said Surrogate’s Court on the 8th day of September, 1910, adjudging that an instrument dated July 28, 1908, and purporting to be the last will and testament of Alexander H. Weed, deceased, was properly executed; that the deceased at the time of executing the same was in all respects competent to make a will and not under any restraint or undue influence, and admitting the will to probate.
    Alexander H. Weed died in the town of Ticonderoga, county of-Essex, at the age of sixty-five years and ten months. lie left an estate worth about $15,000. His only heirs and next of kin were his brother, Albert Weed, a sister, Mary E. Arthur, and the children and grandchildren of deceased half-brothers and half-sisters. His wife died July 16, 1908, twelve days before the execution of the will. He bequeathed $1,000 to a niece, J. Dell Arthur; $500 to a nephew, Joseph H. Arthur, gave all the rest of his property, which consisted of real and personal, to Frank B. Wickes, a brother of his deceased wife, and appointed him the executor of the will.
    
      James W. Verbeck, for the appellant.
    
      Francis A. Smith, for the respondent.
   Sewell, J.:

The evidence given upon the hearing before the surrogate showed that all the statutory formalities relating to the execution of the will were complied with, and we think that it was sufficient to support the conclusion of the surrogate, that the deceased had the capacity necessary to dispose of his property, that he had full knowledge of the will and its provisions and that the will was not procured by any fraud or undue influence.

It is claimed, however, that the record discloses certain rulings by the surrogate in the course of the proceedings before him that were erroneous. Objections were made to the testimony of Charlotte F. Wickes, the wife of the chief beneficiary and the proponent of the will, under section 829 of the Code of Civil Procedure. We think the witness was a person deriving an interest under the deceased within the meaning of that section, for if the will is valid she has an inchoate right of dower in the real estate devised to her husband. Her interest, though contingent, was derived under the deceased and, therefore, it can scarcely be doubted that her testimony, so far as it related to communications with the deceased or transactions with him, was inadmissible, and the exception is before us for review. The last clause of section 2545 of the Code of Civil Procedure provides that no decree or order of the surrogate shall be reversed “ for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.”

Hnder this section it is not enough for the appellate court to see that incompetent evidence has been received, but it must also be satisfied that, with the evidence excluded, a different result would have been reached. (Snyder v. Sherman, 88 N. Y. 656; Loder v. Whelpley, 111 id. 239.) We have examined the evidence not only to see whether the exceptant was necessarily jmejudiced, but for the purpose of passing upon the question of fact disposed of by the surrogate, in pursuance of the power conferred by section 2586 of the Code. By that section “Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surrogate had; and it may, in its discretion, receive further testimony or documentary evidence.” We may examine and determine the case anew. (Gardiner v. Gardiner, 34 N. Y. 164; Burger v. Burger, 111 id. 523.) If we reject the testimony of Mrs. Wickes as to the personal transactions and communications with the deceased, in pursuance of this power, the record before us furnishes ample testimony to support the finding of the^referee. It shows to our mind that the execution of the will was complete and perfectthat the testator was in all respects competent at the time of executing it, and that he was not acting under any restraint or undue influence. .

There is no authority in this State for the proposition that an attorney or confidential adviser is incapable of taking as legatee or devisee, even under a will drawn by himself.

In Post v. Mason (91 N. Y. 539) it was held that the mere fact that a will contained a legacy to the draftsman, an attorney, who, at the time of the execution of the will, was and for a long time previously had been the counsel of the testator, did not invalidate the will.

It is true that the relation in which the parties to a transaction stand to each other is often a material circumstance and may of itself, in some cases, be sufficient to raise a presumption of fraud, and that the burden is then cast upon the party claiming the benefit or advantage of repelling the presumption by showing, either by direct proof or by circumstances, that the transaction was free from fraud or undue influence. (Matter of Smith, 95 N. Y. 516.) Any suspicion in" this case growing out of the fact that the principal beneficiary was the attorney of the testator and took an active part in the preparation of the will, was rebutted by proof before the surrogate that the disclosed intention of the testator, for a long time before the execution of the will, had been in conformity with the provisions of the will: that the will admitted to probate was an exact copy of one written out by himself, but not signed because “he had a poor pen and didn’t like the looks of the paper;’’ that the attorney was the brother of his deceased wife and his most intimate friend, and that he was not on good terms with his relatives. These and all the other circumstances surrounding and attending the execution of the will tend to show that the testator understood the nature of the act he was performing and that the will was the free and intelligent expression of his wish and intention.

We think, therefore, that the decree of the Surrogate’s Court should be affirmed, with costs.

All concurred.

Decree of the surrogate unanimously affirmed, with costs.  