
    In the Matter of the Probate of the Last Will and Testament of Lena Brunor, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      Filed April, 1896.)
    1. Will — Undue influence.
    Undue influence must be affirmatively shown by the party who asserts it, and its exertion upon the very act must be proved.
    2. Same.
    About three months before her death testatrix called alone upon her attorney and gave instructions as to her .will, which left her entire estate to her husband. A week later she called with her husband and executed it. It appeared that she was a large, masculine woman; that she had frequent quarrels with her husband and finally committed suicide; but it was shown that she could take care of her property and transact her own business; that her husband took no part in the execution of the will and that she kept possession thereof. Held, that undue influence was not shown.
    Probate of will.
    Eugene Cohn, for proponent; Herman Frank, for contestant.
   Abbott, S.

Lena Bunor died on the 25th day of June, 1895, from the effects of poison self-administered.

In ea,rly life' she married one Herman Falk, with whom she lived happily for twenty-five years, and by thrift and economy they amassed a snug fortune of some $40,000, all of which, they "being childless, was left to- the wife Lena by the will of the husband, who died in 1893. About one year after the first bus-band’s death, to wit, on the 1st day of August, 1894, she was introduced by a matrimonial agent to one Martin Brunor, and two days afterward, on August 3d, she was married to him. ’ On December 31, 1894, she executed deeds which conveyed all her real property to herself for life with remainder to Emil Brunor, her stepson.

On March 23, 1895, she executed a last will and testament leaving everything to her husband, Martin Brunor, the’ proponent herein.

On June 24, 1895, she had a violent ¿ptarrel with her husband, and in the afternoon of that day she took par'is green, from the effects of which she died.. Upon the trial all. the objections- were brushed away except that of undue influence, but that was strenuously insisted upon; and the contestants urgently claim that the results recounted in- the foregoing statement of facts could not have been accomplished except bjt influence that was undue. This array of fads would perhaps seem on first thought to give some color of probability to this contem-tibh, but a close analysis of the evidence renders the proposition extremely doubtful.

In the case of Marx v. McGlynn, 88 N. Y. 351, Judge Earl says, at page 370: “ Undue influence may be exercised by physical coercion or by' threats of personal harm and duress, by which a person is compelled, really against.his will, to make a testamentary disposition of his property. That land of undue influence can never be presumed. It must be shoivn by evidence legitimately proving the facts, and where it is established, the will cannot be admitted to probate, for the reason that it is not the will of the testator. There is another kind of undue influence more common than that just referred to, and that is where the mind and the will of the testator has been overpowered and subjected to the will of another, so that while the testator willingly. and' intelligently executed a will, yet it was really the will of another, induced by the overpowering. influence exercised upon a weak or impaired mind. Shch a will may be procured by • working upon the fears or the hopes of a weak-minded person.”

We will first discuss the testimony bearing upon the first kind of undue influence described by Judge Earl, supra.

That the proponent frequently quarreled with and often maltreated his wife is sufficiently established by the evidence produced by the contestants, but I think it also appears that the Wife did not tamely submit to his abuses, and was able to and did take her own part against him. Her picture, introduced in evidence, portrays her as a large, masculine-looking woman;, while the proponent is a small, rather undersized man, and it is my impression that he did not always come off first best in their encounters.

I do not think that the evidence legitimately proves the fact that the proponent compelled the making of this will by physical coercion, or threats or duress.

The existence of this kind of undue influence must be shown affirmatively by him who asserts it {In re Martin, 98 N. Y. 193), and, moreover, the exertion of the influence upon the very act must be proved, and it will not be inferred from opportunity or interest. Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191; Cudney v. Cudney, 68 N. Y. 148. It appears that the testatrix on the 18th day of March, 1895, a week before the will in question was executed, went over alone to the offices of the attorneys who had done business for herself and her first husband for years, and who were, at this time, n.ot well known to the proponent, and saying that her relatives had troubled her, gave the instructions for this will leaving all her property to her husband. On the 23d she went over again accompanied by her husband, and the paper was-executed,-but he appears to have taken no part in the proceedings. I do not find here any affirmative evidence that any undue influence was used by the proponent to compel"'the testatrix to perform this act. On the con.trary she seems to have acted entirely independently of him.

From tbe testimony of the subscribing witnesses, who are lawyers absolutely disinterested, I cannot believe this woman was compelled by brute force, or was in fear of bodily harm, •or was under duress of any kind when she gave the instructions for the will or when it was executed.

, The other kind of undue influence defined by Judge Earl (supra), supposes a testator of weak or impaired mind, and this may, sometimes, be circumstantially proved. But no such hypothesis exists in this case. It is shown, beyond peradventure that this woman was no weakling, either mentally or physically.

She was able to take care of her property and transact her business and to do it well. The cause of the quarrel which, drove her to suicide was that her husband refused to whitewash a room in her house, so that she might save the amount necessary to employ a painter.

Much of the testimony adduced by the contestants was given by female witnesses, some of whom were apparently very hos* tile to the proponent on account of business relations, and others who evidently disliked him on account of his bad treatment of his wife at times, but I do not think it strong enough to substantiate the claim of the contestants.

The testatrix had no children and the will is contested by a brother living in New York city, and a sister residing in Germany, with neither of.whom were her relations particularly close, in which aspect her will need not be considered unnatural.

The “ fifth ” paragraph of the will sufficiently indicates the feelings of the testatrix toward her cousin, Bertha Hirsch, and her reason for not leaving her anything, and comment is unnecessary.

After the will was executed it was handed to Mrs. Brunor, and was taken home and placed by her in a little desk in her’ room, where it was accessible to her at all times down to the very day of her death.

If she bad any such permanent hard feelings against her husband as is claimed by the contestants, how easy it would have been for her to have destroyed this instrument at any time after it was executed. She could have destroyed the will more easily perhaps than have taken the poison. While the record discloses many remarkable and peculiar circumstances, I am not satisfied that the proof of undue influence is sufficiently' strong to warrant me in setting aside the will.

Decreed accordingly.  