
    Matter of the Last Will and Testament of Nora Crockett, Deceased.
    (Surrogate’s Court, Bronx County,
    July, 1914.)
    Wills — exercise of undue influence may not be presumed — no legal presumption of incompetency arises from fact that testatrix was aged.
    Undue influence is influence which subordinates the will of a testatrix to another so that the testament no longer speaks the mind and purpose of testatrix but the wish and purpose ' of the other.
    The exercise of undue influence in the making of a will may not be presumed, but must be shown either by direct proof or by such facts and circumstances that a contrary- inference cannot he drawn from the same.
    No legal presumption of incompetency to make a will arises from the mere fact that testatrix is aged.
    Proceeding upon the probate of a will.
    John P. Goring (John T. Robinson, of counsel),'for proponent.
    Elfers & Abberley (Lester S. Abberley, of counsel), for contestant.
    John J. O’Brien, special guardian, for infant contestants.
   Schultz, S.

An adult niece of the testatrix filed objections to her will; thereupon the special guardian for the infants interested also filed an answer containing objections.

The testimony in this matter, in my opinion, fully establishes that all the statutory requirements were observed in the execution of the will of the decedent; that at the time of such execution the decedent was competent to make a will and that the same was not the result of any undue influence exercised upon her.

The persons named as beneficiaries appear to have been on good terms with her. When she was ill and they were notified, some of them called for her and removed her to the home of one of them where she thereafter resided, and it appears that she felt grateful to them for this. The evidence also shows that she had visited some of the beneficiaries at various times before her illness. No doubt the fact that she did have these social relations with the beneficiaries, and was removed from the home of strangers to the home of her relatives when the latter learned of her illness, induced her to feel more kindly toward the beneficiaries than she did toward the adult contestant with whom the evidence discloses she had no social relations for many years, and toward the infant grandnephews and grand-niece as to whose relations with the testatrix nothing of importance appears in the testimony.

It is quite likely that this feeling of gratitude toward those who in her old age took an interest in her, sufficient to take the trouble to remove her to the home of one of their number when she was" ill, found its expression in the will now before this court and influenced her in making the provisions in favor of the beneficiaries therein named. This would be natural, but the law does not construe such a state of facts to constitute undue influence. Children’s Aid Society v. Loveridge, 70 N. Y. 387; Marx v. McGlynn, 88 id. 358; Matter of Mondorf, 110 id. 450. Undue influence is influence which subordinates the will of the testatrix to the will of another, so that the testament no longer speaks the mind and purpose of the testatrix, but the wish and purpose of another. Matter of Blair, 16 N. Y. Supp. 874; Rollwagen v. Rollwagen, 63 N. Y. 504. It imports coercion. Matter of Van Ness, 78 Misc. Rep. 592, 598, citing Matter of Campbell, 136 N. Y. Supp. 1086, 1104, 1105. It cannot be presumed, but must be shown either by direct proof or by proof of such facts and circumstances, that a contrary inference cannot be drawn from the same. Rollwagen v. Rollwagen, supra; Loder v. Whelpley, 111 N. Y. 239; Matter of Campbell, 136 N. Y. Supp. 1086; Matter of Richardson, 137 App. Div. 103. I can find nothing in the testimony on this contest to show that such a condition existed.

Nor does it follow that the testatrix was incompetent to make a will on the 28th of January, 1914, when this will was made, because she was suffering from a serious illness on or about the eighteenth of January preceding. Indeed it appears from the testimony that her condition improved between the said fifteenth and eighteenth days of January when the physician who attended her at the place where she was living last saw her. The only testimony which in my opinion has any weight on the question of her alleged incompetency due to her illness is that of this physician, but he saw the patient last on January eighteenth, whereas the will was not made until January twenty-eighth, and the testatrix did not die until the twenty-fifth of February following. The physician therefore could not have testified and did not attempt to testify to her condition on the day the will was made from any examination or observation made by him on that day.

The testatrix was an old lady probably over eighty years of age, but that does not make her incompetent in law. Age has its penalties, but a presumption of incornpetency in law, fortunately, is not one of them. Senility of a testatrix, where it exists, may make it necessary to scrutinize a will carefully to see that no imposition has been practised, but I know of no case in this state which makes it, of itself, a bar to probate.

The objections of the adult contestant, and of the special guardian on behalf of the infants, are dismissed. The will is admitted to probate, with costs to the proponent and special guardian payable out of the estate.

Probate decreed.  