
    In the Matter of the Probate of the Last Will and Testament of Emeline Gallup, Deceased. Evangeline Close and Others, Appellants; Lauren Redeield, Respondent.
    
      Will — a codicil executed by an aged testatrix giving all her residuary estate to the attorney who prepared it, not sustained.
    
    Upon an application for the probate of a will and codicil, it appeared that the testatrix, who had a brother and several nieces and nephews who lived at some distance from her home, and whom she seldom saw or heard from, after bequeathing a legacy, of $300 to a cemetery corporation, gave her residuary estate, amounting to between §13,000 and §14,000, to a man who, for a long period,, had been her trusted friend and business adviser, but that having survived him, the testatrix, some five weeks after his death, and when in the ninetieth year of her age, executed a codicil by which she gave her "residuary estate to an attorney, “to beb; him accepted and received as full compensation for any and all services by him rendered and to be rendered to me in my lifetime and in the settlement of my estate after my decease.” The attorney guided the testatrix’s hand while she was signing the codicil, which Was witnessed by two. persons whom the testatrix had never seen and whom the attorney brought into her presence. It did not appear that the testatrix had known the attorney until after the death of the previous residuary legatee, or that he had rendered any services to her other than to draft the codicil.
    
      Held, that the codicil was not shown to have been the voluntary and intelligent act of the testatrix, and that it was error to admit it to probate.
    Appeal by Evangeline Close and others, contestants, from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 17th day of April, 1899, so far as the same relates to the instrument purporting to be a codicil to the will of Emeline Gallup, deceased.
    
      Frederic A. Ward, for the appellants.
    
      Fastus S. Ransom, for Lauren Redfield, proponent and respondent.
   Willard Bartlett, J.:

No question is raised in this proceeding in respect to the validity of the will of Emeline Gallup, which was executed on September 1, 1893. The contest relates solely to the codicil, executed about five years later, on August 6, 1898, when the decedent, was in the ninetieth year of her age. She died in less than three'weeks after the execution of this codicil.

By the will, after directing the payment of her debts and funeral expenses and bequeathing $300 to Greenwood Cemetery, the testatrix in the 3d clause devised and bequeathed the residue of her estate to Robert Wilson, residing at No. 329 Greene avenue in the city of Brooklyn, and appointed him her sole executor. On July 1, 1898, Mr. Wilson died. At and shortly before the time of his death, he appears to have had the custody of Mrs. Gallup’s property and charge of her business affairs. He does not seem to have been in any wise related to her and is described in the brief for the proponent simply as a friend who cared for her wants, and also for her ■money in hank and bonds and mortgages.

The codicil in question here is alleged to have been executed a month and.six days after Mr. Wilson’s death. After referring to the execution of the will dated September 1, 1893, it provides as follows: *

“ Robert Wilson in my said will named having died, I do hereby give, devise and bequeath all the rest, residue and remainder of my ■estate in the third clause of said will mentioned unto Lauren Red-field, Counsellor at Law, of the Borough of Manhattan in the city -of New York, absolutely, to be by him accepted and received as full compensation for any and all services by him rendered and to, be rendered to me in my lifetime and in the settlement of my estate after my dec.ease; and I nominate apd appoint the said Lauren Red-field the sole executor of my said will. In all other respects I confirm and republish my said will.”

The estate of the testatrix amounted to between $13,000 and $14,000.

The effect of the codicil, if valid, is to give almost all of this to Mr. Redfield, who does not appear to have been known at all to Mrs. Gallup during the lifetime of Mr. Robert Wilson, the previous residuary legatee, and who is not shown ever to have rendered any services whatever to the lady, unless it was a service to draw a codicil by which he himself acquired all her property, with the trifling exception of a legacy of $300 to Greenwood.

The circumstances under which the codicil was executed were peculiar, even as described by the witnesses for the proponent.

One of' these witnesses was Mr. William D. Bartles, a friend of Mr. Redfield’s. The other was Dr. John W. Barlow, a physician living in the same house with Mr. Bartles. Neither of these gentlemen had ever seen Mrs. Gallup until the 6th of August, 1898. Mr. Bartles tells, us that Mr. Redfield showed him a letter saying that Mrs. Gallup v?as ill, and asked him if he could recommend a doctor who could go to see her at once, whereupon he mentioned the name of Dr. Barlow as that of a skillful physician. Dr. Barlow wag-then communicated with by telephone and undertook to visit Mrs. Gallup, at once. Mr. Bartles, although he had no acquaintance whatever with the old lady, volunteered to go also if he could be of any use, and Mr. Redfield said he would like to have him go. Accordingly, we find Mr. Bartles, Dr. Barlow and Mr. Redfield— two of them utter strangers to Mrs. Gallup, and the- other apparently only a recent acquaintance — meeting at her apartments in Brooklyn, at 25 Tompkins avenue, about the middle of this day in Augugt. Mrs. Gallup was sitting up. The doctor found her suffering from articular .rheumatism. Mr. Redfield had brought a. check for rent which he asked her to indorse. She expressed doubt of her ability to comply with this request on account of the rheumatism in her hands, whereupon Mr. Redfield offered to assist her, and with his guidance of her hand Mrs. Gallup wrote the desired indorsement. What followed is thus narrated by the doctor :: “ Then she said ‘that is very easily done; now let us have the-codicil,’ and she asked the janitress to go and get the codicil or paper. Q.' Did she say codicil ? A. Tes, I think she did. Q. Goon ? A. She made the remark, ‘ Let us sign the codicil,’ or ‘ Have that signed.’ The janitress went out and got these papers- and brought them out, and they were laid on the table, and the-same process was gone through. I offered her my peri ; Mr. Red-field guided her hand in signing this codicil. Then she said, ‘ 1 am glad that is done,’ or something to that effect; ‘I am glad that;' is finished.’ Then Mr. Redfield asked her if she wished Mr. Bartles- and myself to sign as witnesses, and she said yes; and Mr. Bartlessigned, and likewise-myself. I signed it in her presence ; in. the-presence of all of us; in the entirety. Q. What did she say-the paper was ? A. I believe there was some remark made with reference to this being her codicil. She wanted it signed.. I think Mr. Redfield asked her if this was her codicil, and if she had read, it and was satisfied with it; she said yes, perfectly;; that she had it-with her, and she knew what the contents was.”

The testimony of Mr. Bartles gives substantially the same account of the execution of the codicil. The only other person present,, beside the testatrix, the two newly-introduced witnesses and the beneficiary, was Mrs. Annie Hillestrom, the janitress, who brought the document from a bureau in the dining room at Mrs. Gallup’s request. She swears that the old lady did not use the word codicil at all, but called it merely a blue paper. The surrogate, however, was not bound to accept her version of the transaction in this respect, rather than the testimony of Mr. Parties and Dr. Barlow.

The case does not afford us much light in reference to the relations between the testatrix and the members of her family or other persons who might naturally be the objects of her bounty. According to Mr. Redfield’s petition for probate she- had a brother and two-nephews residing at Troy, N. Y., a niece residing at Poughkeepsie, three nieces living in Michigan ; and her only other relatives were a granddaughter of a deceased sister and the child of a deceased, nephew, whose residences have not been ascertained. The contestants in the present proceedings are the Troy nephews and the Michigan nieces. Sometime after the execution of the codicil Mrs¿ Gallup, according to the testimony of Dr. Barlow, told him that she was not on good terms with her family, and was not going to leave them anything at all; that she had not been on good terms with any of them for years. He also states that she rejected his suggestion,, toward the termination of her illness, that she should send for some of her relatives. On the other hand, a grandniece of Mrs. Gallup gave evidence concerning a friendly call which she made on her great aunt in 1891, when she spent the greater part of the day with the old lady, who treated her in a most kindly and affectionate manner. This witness, however, was not allowed to tell what Mrs. Gallup said about other members of her family, although I do not see why such statements should have been deemed too remote, in view of the evidence received from Dr. Barlow, to the effect that she declared that she had not been on good terms with any of them for „ years.

If we assume, however, that Mr. Robert Wilson, the principal legatee named in the will, had been the custodian of Mrs. Gallup’s property for a long period, and her trusted friend and business adviser, -there was perhaps nothing strange in the fact that she should bequeath her property to him to the exclusion of relatives living at a distance from her home, and whom she seldom saw or heard from. But after his death, and the consequent lapse of the residuary legacy in the will, when Mr. Redfield appears upon the scene, no similar assumption can be indulged in to explain the preference shown to that gentleman. As has already been pointed out, there is no proof that Mrs. Gallup had any acquaintance with him before Mr. Wilson died, yet only five weeks later she leaves him upwards of $13,000, as compensation for services rendered or to be rendered, although it does not appear that'he has ever rendered her any services whatever; and this result is accomplished by a paper written by the beneficiary himself, which the giver is unable to sign except by allowing him to hold and guide her hand, and which is witnessed by two persons whom she never saw before in her life, and who are brought into dier presence' at his instance.

Under the settled law of this State I think some further explanation than has yet been given should be furnished before this instrument is allowed to stand- as a valid codicil to the will of Emeline Gallup. A will made by a client in favor of his lawyer is viewed with great suspicion by the courts. (Marx v. McGlynn, 88 N, Y. 357, 371.) While it is n-ow held that the mere fact that the beneficiary is the attorney of the decedent- does not create a presumption that a testamentary gift was procured by undue influence — as it would in the case of a gift inter vivos — yet such gifts are scrutinized most carefully and will not be sustained where the circumstances are suspicious, unless those circumstances are satisfactorily, explained. The language of Andrews, J., in The Matter of the Will of Smith (95 N. Y. 516, 523), is singularly applicable to the facts of the case at bar-: “ The mere fact, therefore, that the proponent was the attorney of 'the testatrix did not, according to the authorities cited, create a presumption against the validity of the legacy given by her will. But taking all the circumstances together — the fiduciary relation, the change of testamentary intention, the. age, and mental and physical condition of the decedent, the fact that -the proponent was the draftsman and principal beneficiary under the will and took an active part in procuring its execution and .that the testatrix acted without independent advice — a case was made which * * * imposed upon the proponent the burden of satisfying the, court that the will was the free, untrammeled and intelligent expression of the wishes and intention of the testatrix.” Many of the rules by which the present appeal is to be •determined were also discussed by Judge William F. Allen, when he was in the Supreme Court, in Lake v. Ranney (33 Barb. 49). Referring to the English case of Seoular v. Plowright (28 L. T. 194), in which the opinion was written by Dr. Lusi-iington, he said : “ It was there decided, and with the decision all the cases in our own courts agree, that in ordinary cases where there is execution and capacity, the validity of a will is established; but when the will is prepared by the party principally benefited an exception prevails and it is necessary to prove that the testator had full knowledge of the instrument and its contents and executed it freely and without undue control, especially if the circumstances are suspicious.”

I do not deem any further discussion necessary to show that the explanation which the courts have uniformly held to be necessary in this class of cases is wanting here.

Each of the authorities cited in the oral opinion of the learned surrogate is readily distinguishable from the case at bar. In Cudney v. Cudney (68 N. Y. 148) the party charged with having exercised undue influence was a son of the testator. In The Matter of Mondorf (110 N. Y. 450) it was held that the simple fact that all of a testator’s estate was given to a stranger in blood did not warrant the inference that the gift had been obtained by undue influence. It is to be noted that in the case cited the' will was read twice to the decedent; that he left all his property to a lady with whom he had boarded for several years, having become estranged from his wife, and that the court said there was not the least evidence that this lady ever attempted to influence him in the disposition of his estate.

In my opinion, the decree, so far as appealed from, should be reversed and an order should be made directing the trial by a jury of the material questions of fact arising upon the issues between the parties to the proceeding.

All concurred.

Decree of the Surrogate’s Court, so far as appealed from reversed, and issues of fact directed to be tried by a jury, costs to abide the final award of costs.  