
    Carrie U. McGown, Respondent, v. Mary I. Underhill and Others, Impleaded with Thomas Hughes and Others, Appellants.
    Second Department,
    November 28, 1906.
    Will — evidence—probate presumptive evidence of testamentary capacity-— burden of shpwing- testamentary incapacity — facts insufficient to show incapacity.
    When a will has been admitted to probate the record is prima facie evidence of its due attestation,'execution and validity. Thus a plaintiff bringing an action under section 2658a of the Code of Civil Procedure to have the instrument declared null and void on the ground of lack of testamentary capacity, is under the burden of overcoming the presumption of the validity of the will and it is error to charge that the burden of proof of testamentary capacity is upon the defendants.
    A plaintiff in such an action, endeavoring to invalidate a will admitted to probate, must show on the question of tlie testator’s capacity that he was not able to comprehend the condition of his property, his relation to those having natural claims upon his bounty, and the- scope and hearing of the provisions of his will. It is not enough to show that he might not have had capacity, for section 3653a of the Code of Civil Procedure, authorizing the action, raises a presumption of capacity.
    In determining testamentary capacity the court may consider the disposition of property made by the testator. , '
    
    When one-half of an estate of §10,000 was left to-the testator’s heirs at law, none of whqm was ignored, and the balance was equally divided between a brother and sister who had furnished him a home, and there is no evidence or suggestion of undue influence or mental incapacity save that the testator was eccentric, miserly and of disgusting habits, the disposition shows an understanding in the testator which establishes testamentary capacity.
    Mere expert testimony of physicians that they regarded the testator as an imbecile does not establish testamentary incapacity, for imbecility is not a disqualification for malting a will, provided the testator has the capacity which the courts require, w'hich is to be determined from his acts in reference to the particular business in hand when he makes his will.
    Appeal by the defendants, Thomas Hughes and others, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Westchester on the 14th day of October, 1905, upon the verdict of a jury setting aside the probate of a paper purporting to be the last will of John H. Underhill, deceased, and also from an order entered in said clerk’s office on the 4th day of November, 1905, denying the said defendants’ motion for a new trial made upon the minutes.
    
      Ralph Earl Prime, Jr. [John H. Ferguson and George E. Gartland with him on the brief], for the appellants.
    
      Alfred E. Smith, for the respondent.
   Woodward, J.:

This action is brought under the provisions of section 2653a of the Code of Civil Procedure to have the last will and testament of the late John Henry Underhill declared null and void, the defects urged being lack of testamentary Capacity on the part .of the deceased and undue influence. Upon the trial of the issues the court took this latter question from' the jury, and the only question submitted was in reference to the testamentary capacity of the deceased, the jury finding in favor of the plaintiff. Appeal comes to this court.

■The will bears date of December 13, 1904, the testator dying on the twenty-eighth day of the same month, and while there are some questions arising out' of the trial which .might be worthy of consideration, we shall dispose of the case upon the evidence, in the light of the well-established rule governing the determination of testar meiitary capacity. In Delafield v. Parish (25 N. Y. 9, 29) the court carefully reviews the authorities bearing upon this question, and asserts the rule, hot since departed from, that “it is essential that the testator has sufficient capacity to comprehend perfectly the condition of - his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language _of the cases, have sufficient active memory to collect in his mind) without prompting, the particulars or elements of the business to be transacted, and to hold them in' his mind a sufficient length of time to perceive at least .their obvious relations' to each other,.-and be able to form some rational judgment in relation to them. A testator who lias sufficient mental power to do these things is, within the meaning and intent, of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.” And in Horn v. Pullman (72 N. Y. 269) the court,, in speaking of incapacity, say it cannot be “ inferred from an enfeebled condition of mind or body,” and that “ such a rule would be dangerous in the extreme, and the law wisely sustains testamentary -dispositions made by persons of impaired mental and bodily powers, provided the will is the free act of the testator, and he has sufficient intelligence to comprehend the condition of his property, and the scope, meaning and effect of the provisions of the will.”

The will now before us has been admitted to probate, and under the provisions of section 2653a of the Code of Civil Procedure the record of the probate is'primatfacie evidence of the “due attestation, execution and validity of such will or codicil.” That is, the plaintiff comes, into court, in this action, alleging the invalidity of the will which the law holds prima faoie to be valitj, and she; is thus to sustain the burden of proof. She must establish the fact against the presumption. She is bound to show, on the question of the testator’s testamentary capacity, that he was not able to comprehend the condition of -his property, his relations to those having natural claims upon hié bounty, and the scope and bearing of the provisions -of liis will. It is not enough to show that he might not have had this capacity, for the law, under the Code provision which gives the plaintiff her cause of action, presumes that he had the capacity, and she must show that he did not have the capacity.

It is conceded that the estate left by the testator was of the value of $10,000, and there being no evidence of' undue influence, no evidence of fraud in the making and executing of the will, no evidence of any prompting on the part of any one in the scheme of the will, it is important to consider what the testator’s expressed intentions are, that we may judge of his capacity from his acts in reference to the particular business in hand on the 13th day of December, 1904, when this will was made and executed. In the 1st clause he directs that his estate be converted into cash. In the 2d he directs the payment of his debts and funeral expenses. In the 3d he makes a bequest of $300 to a church. In the 4th he makes a bequest of $200 to the pastor of a certain church in Yonkers. In the 5th there is a bequest of $600 to one Thomas Hughes. In the 6th, a bequest of $1,000 to the widow of Isaac Roberts of Tuckahoe, where. the testator resided. In the 7th he makes a bequest of $500 to Joseph Carson Underhill, a relative. In the 8th there is a bequest of $500 to the widow of William Roberts. In the 9th he gives to his broker, Thomas W. Thorne, $2,000, and in the 10th he gives to his sister, the plaintiff in this action, Caroline A. McG-own, the sum of $5. These bequests aggregate $5,105, or about one-half of his estate. He was unmarried, and lived with his brother, William James Underhill, and his sister, Mary Ida Underhill, . and to these two latter he gave the remainder of his estate, aggregating about $5,000. There is not the least evidence that the testator was prompted in the slightest degree by any one in reference to the disposition of his property, or as to its amount. Hone of the gifts are fantastic or unreasonable, so far as appears from the evidence. All of them were within his means, and the residuary estate, going to the brother and sister, with whom he resided, was of one-half of his property. Hone of his heirs at law were ignored, and aside from the small gift to the plaintiff in this action there is nothing to indicate even a prejudice as against any of those who might have expected to share in his bounty. A man’s testamentary disposition of his property,” say the court in Dobie v. Arm strong (160 N. Y. 584), “ is not invalidated because its' provisions áre unequal or unjust, or the result of passion, or of other unworthy br unjustifiable sentiments. It is natural and, therefore, usual to make provision for a. child ; but, tinder our governmental institutions, tio obligation to do so is imposed:' upon the parent, and the presumption of validity is not affected by the failure to'do so, alone. Nor is the presumption in favor of a will overcome by showing that the testator was of advanced age, or of enfeebled condition of mind or body.” ' „

Here we have a will showing upon its face an intelligent grasp on the part of the testator of his affairs. He has disposed of about one-half of liis property in specific legacies, and the remainder he gives to the brother and sister who have-afforded him a home. No one suggests that this is not the will which he drew or dictated ; there is no evidence whatever that any one made any suggestion as to the'beneficiaries, or. in reference to the- amount, of the property or as to the scheme of the will, which is entirely rational, and yet the jury in this case has determined that the man who made this will; com plying with all of the requirements of an intelligent disposition of property by will, was not of sound disposing mind. ; Where is the evidence to support this conclusion? Certainly it is not found in the will itself, nor in any of the stirrounding circumstances under which it was drawn and executed.

It is true, of course, that the evidence tended to show that the testator was disgustingly dirty and vulgar; that he" was eccentric and miserly in his conduct, and that he was somewhat given to drink, and two physicians testified in á very general way that they regarded the man as demented, as an imbecile, but none of the evidence, as we-read it, goes to the length of saying that the testator did not comprehend the extent and value of his property, or that he-did not, on. the day of making that will, have the capacity to make an intelligent "disposition of his money. An imbecile is neither a lunatic nor an idiot. He is defined “ as one destitute of strength, either of body oi* mind; one who is weak, feeble, impotent, decrepit. Imbecility is defined as the quality of being imbecile; feebleness of body " or mind.” (15 Am. & Eng. Ency. of Law [2d ed.], 1019.) It is not a word of exact meaning, and imbecility is not a disqualification .for making a will, provided the testator has the capacity which the law requires, and 'that is not determined by any mere generalization of the testator’s capacity, but is to be determined from his acts in reference to the particular business in hand, and in the case now before us the will itself, in connection with the conceded facts, shows that he knew all about his property, and that he had clearly in mind the. objects of his bounty, and that he intended to and did make an intelligent and, so far as appears, an entirely equitable disposition of his estate. The plaintiff, a married sister living in Mount Vernon, was given five dollars,; his brother and sister, who afforded him a home, were given the residuary estate, aggregating about $5,000, and if the disgusting tales told of the testator’s habits are true, the sister in Mount Vernon had rather the best of the transaction, for surely a mere money consideration could not compensate for having so disgusting a creature about one’s home.

It seems entirely clear to us that the court erred in charging the jury that the burden of proof of the testator’s testamentary capacity was upon the defendants; the statute clearly places that burden upon the plaintiff in a case of this character by making the production of the will and the record of its probate presumptive'evidence of the validity of the will.

We are of the opinion, however, that there was no evidence in this case to meet the issue raised by the pleadings; that there w&s no evidence to establish lack of testamentary capacity on the part of the testator, the will itself, unquestioned as to any of the details of its making and execution, showing conclusively that the testator had the capacity demanded by the law; that he was capable of comprehending the amount of his property and of intelligently disposing of the entire estate.

The judgment and order appealed from should be reversed, with costs.

Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  