
    Matter of the Probate of the Last Will and Testament of Alfred F. Dunham.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Wills—Probate of—Undue influence.
    In opposition to proceedings for the probate of a will it is not sufficient to show that there was opportunity to and motive to exert undue influence over the testator, but some affirmative acts must be shown, which by them selves, or by just inference establish coercion or undue influence.
    2. Same—Of sick person varying from previous purpose will be SCRUTINIZED CLOSELY.
    A will made by a sick person, contrary to a previous fixed and determined purpose, will be scrutinized closely by the courts to ascertain whether it was a free, voluntary and intelligent act.
    Appeal from a decree of the surrogate’s court of Kings county, admitting a will to probate.
    
      Ewin M. Fox, for app’lt; Jerry A. Wernberg, for resp’t. John H. Clapp, for ex’r.
   Pratt, J.

—This is an appeal from a decree of the surrogate of Kings county, admitting to probate as and for a codicil to the last will and testament of Alfred F. Dunham, late of the city of Brooklyn, deceased, a paper writing, bearing date September 11, 1885, and offered for probate by Mary Nolte, a legatee under said alleged codicil.

The testator at the time of the execution of said paper, was eighty-two years of age and in his last illness, his death taking place on December 1, 1885. The paper was executed in the house of Mary Nolte, the proponent, where the testator boarded. The said alleged codicil left to said Mary Nolte, a legacy of $3,000, but in all other respects confirmed and ratified a prior will, which prior will, dated October 3, 1882, was duly admitted to probate by the surrogate of Kings county, to which said will of October 3, 1882, there are no objections by either appellant or respondent.

The appellant’s objection that the codicil is void for uncertainty and ambiguity is not well taken. It is about as plain as language can make it that the testator intended to give Mrs. Nolte $3,000 and leave the remainder of his property to be disposed of as stated in the previous will. If the paper of September eleventh, is to be regarded as a will it disposes of all the property by reference to the former will with sufficient certainty, but the more reasonable view is to regard it as a codicil as no change is made in the previous will except the giving of $3,000 to Mrs. Nolte.

The evidence is abundant to satisfy the mind and conscience that the testator on the 11th of September 1885, was competent to make a will, and considering the services Mrs. Nolte was rendering to the testator the legacy does not seem unreasonable.

Dr. Bond, the physician who attended him, testified that he considered him rational up to nearly the close of his life and the writing made by the deceased after the eleventh of September evinces a mind clear and capable.

Much of the testimony of the contestants related to incidents after the codicil was made, in fact no witness testified that prior to September 11, 1885, the testator was of unsound mind or incapable of attending to ordinary business.

There was also an utter failure of proof that Mrs. Nolte or any one in her behalf exerted any undue influence over the testator.

It is not enough to show an opportunity and motive to exert undue influence but some affirmative acts must be shown which by themselves or by just inference establish coercion or undue influence. In re Probate Will of Ellick, N. Y. Week. Dig., vol. 19, p. 232.

But it is claimed that this codicil is at variance with a former will made when his senses were in full vigor, and must be presumed to be the result of undue influence. It is true that a will made by a sick person contrary to a previous fixed and determined purpose will be scrutinized closely by the courts to ascertain whether it was a free, voluntary and intelligent act.

In this case only one change is made as I have before observed and the proofs seem not only to justify the change but show that the act was deliberate, free and voluntary. The testator discussed alone with Mr. Spencer the propriety of the act, and several ways of accomplishing it; so far as appears Mrs. Nolte made no suggestions.

There was a decided change in the circumstances since the first will was made; then he was a mere boarder, now he was sick requiring constant and assiduous care and attention—such care as money could scarcely buy,—and there he remained up to the day of his death. He might well make such a change in his will to secure the services of Mrs. Nolte until he died.

The codicil was not drawn by Mrs. Nolte. and she made no suggestion, so far as appears, to Mr. Spencer or to the testator. There was, also, failure to prove any refusal to allow the relatives of testator to visit him prior to the making of the codicil. There was some proof of refusal -after that date, but it was sufficiently explained by the request of Dr. Bond that no one should be allowed to disturb the testator.

As was well said by the surrogate, “there was no evir dence of an act or word on the part of the testator indicating insanity,” and there is no evidence that he was unduly influenced in the making of the codicil in question.

We have examined all the exceptions upon questions of evidence, but notice none that require discussion. The evidence excluded could not have changed the result if it had been admitted. The findings of law and fact are sudh as only could have been properly found upon the evidence.

Decision of surrogate affirmed, with costs.

Barnard, P. J., concurs.

Dykman, J.

—This is an appeal from the decree of the surrogate of Kings county, admitting to probate an instrument called a codicil to the last will and testament of Alfred F. Dunham, deceased.

The testator made a will in October, 1882, and in September, 1885, he made another will in which after the bequest of a legacy of $3,000 to Mrs. Mary Notle, he gave the remainder of his properly as before given, and provided for in his former will, so that both instruments were required to constitute the last will and testament of the testator.

The last instrument was contested, but the testimony before the surrogate discloses no reason why it should be rejected.

The decree of the surrogate should be affirmed, with ■costs.  