
    Matter of the Estate of James Neil, Deceased.
    (Surrogate’s Court, New York County,
    May, 1915.)
    Wills — old age not disqualification in a testator — when will entitled to be admitted to probate.
    Old age is not per se a disqualification in a testator.
    In testamentary causes the burden of proof on an issue of undue influence is on the contestant.
    After probate of a testamentary paper has been refused on the ground that it was not proved to the satisfaction of the surrogate an earlier testamentary paper executed by decedent when he was over eighty years of age, about two and one-half years prior to his death, with precise regard for statutory requirements, was offered for probate. Of the four subscribing witnesses three were lawyers of experience one of whom had known the decedent upwards of forty years" and the evidence was convincing that said instrument was the voluntary act of a free and capable testator. Held, that the instrument was entitled to be admitted to probate.
    A motion to dismiss the proceedings for the probate of said instrument as decedent’s last will on the ground that by the terms of the later alleged will, which was refused probate as not well executed, the earlier instrument was revoked is not entitled to weight.
    Proceeding upon the probate of a will.
    Blandy, Mooney & Shipman, for proponent.
    Frank H. Field, for contestant Alfred Neil.
    Charles D. Ridgway, for contestant Mrs. Taylor.
    Frank H. Richmond, for contestant James Neil.
    H. A. Callan, for contestant Virginia Lockwood.
    William Allen, special guardian.
   Fowler, S.

This is a contested probate proceeding. The earlier testamentary paper propounded as the last will and testament of James Neil was executed by the decedent on the 11th day of March, 1912, two years and a half prior to his death. Objections to its probate have been filed on behalf of all the children of the decedent, who allege that the testator lacked testamentary capacity and was unduly influenced by the proponent, Mrs. Neil, the widow and sole legatee. Probate of a later testamentary paper was refused as it was not proved to the satisfaction of the surrogate. This conclusion relieved the case of some very serious questions concerning its revocation, which might have proved awkward to the parties concerned in the alleged revocation. The earlier instrument now offered for probate was executed with precise regard for the statutory ■ requirements. Of the four subscribing witnesses three were lawyers of experience and one, at least, had known the decedent for upwards of forty years.

Upon the hearing; evidence was offered on the part of the contestants in support of the allegation that the decedent" was unduly influenced in the execution of his will. This evidence was most liberally received. The testator, at the time he executed the paper propounded, was about eighty-four years of age. Old age is not per se a disqualification. Some time before 1912 testator had been obliged, by the advance of years, to intrust the active management of his business affairs to his wife, who was many years his junior. It appears that Mrs. Neil, who was accustomed to accompany her husband when he went from home, did so on the day on which the decedent entered the law offices of the subscribing witnesses for the purpose of making his will.' But it appears affirmatively that the proponent took no part in the preparation of the testamentary instrument now propounded, and was not present at its execution. The will offered for probate in this proceeding remained, after its execution, in the custody of the lawyer who drew it, and was not seen by the proponent until it was delivered to her after the decease of Dr. Neil. In testamentary causes the burden of proof on an issue of undue influence is on the contestant. Matter of Kindberg, 207 N. Y. 221; Matter of Hermann, 87 Misc. Rep. 486; Matter of Falabella, 139 N. Y. Supp. 1003. Without going at length into the unhappy and confused proofs bearing on the domestic life of the decedent and his family, I feel, after a careful consideration of the evidence given in this proceeding, that the contestants have not met this legal requirement.

A paralytic stroke sustained by the testator about six months before the execution of his will had doubtless impaired his usefulness, but the proofs adduced establish a decided improvement in the mental and physical condition of the testator at the time the instrument now offered for probate was executed. That his physical and mental equipment were not vigorous at his advanced age is apparent, but that these natural defects amount in this case to what is, in law, lack of testamentary capacity is not established. The evidence offered on both sides is voluminous, but a careful consideration of the whole case presented convinces me that the instrument offered for .probate in this proceeding was the voluntary act of a free and capable testator. Owing to the great number of counsel engaged the evidence is somewhat confused and the rules of evidence were not strictly applied. But I have disregarded all testimony in conflict with section 829 of the Code of Civil Procedure.

There is a point already adverted to in connection with this proceeding that calls for additional explanation. A later alleged will dated May 21,1914, .was first brought on for probate, and after a hearing probate was refused. A motion to dismiss this present proceeding was made before me on the hearing on the ground that, by the terms of the later alleged will, the paper offered herein for probate was revoked. Without detailing the circumstances surrounding the preparation and execution of that later paper I want to make it plain that I never considered it well executed or valid as a revocation. There is therefore no weight to the contention that the instrument, which I find must be admitted to probate in this proceeding, had been revoked by the alleged subsequent will.

Probate decreed.  