
    In the Matter of Probate of the Will of Mary Murphy, Deceased.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      Filed December, 1895.)
    1. Will — Execution—Knowledge of contents.
    Where the will of an illiterate testatrix was read over to her by the scrivener before execution, it will be assumed that he read it correctly, and all of it, and that her statement that it was all right was made with knowledge of its contents.
    2. ¡Same — -Peobate.
    Where the will was signed by testator’s mark and one of the witnesses has died, the handwriting of the latter may be proved and the testimony of the surviving witness, who saw the mark made, will be sufficient to prove due execution.
    3. Same — Publication.
    Publication of a will may be made by an affirmative answer to a question or even by a sign.
    4. Same.
    The publication and a request to the witnesses to sign may be incorporated in the same words or acts.
    5. Undue influence — Master and servant.
    Undue influence will not be presumed from the mere existence of the relation of master and servant between the testatrix and legatee, where it appears that they were relatives, sustained close and friendly relations, that the services, of testatrix were performed voluntarily, fom motives of love and affection, and that she received no salary.
    Application for tbe probate of tbe will of deceased. Objections were filed thereto upon the ground that the said will was not properly executed; also upon the ground of fraud and undue influence.
    Mary Murpby was a native of Ireland, and came to T'roy in 1835 and resided there at the time of her death, which occurred February 25, 1895, aged about eighty years. The paper offered for probate was made about five years before her death, and is dated March 31, 1890. The deceased could neither read nor write. She had been married, but her husband died about twenty years prior to her decease. There was no issue of her marriage. The deceased left her surviving a brother, John Ahearn, and two sisters, Mary Boyle and Elizabeth Kelly, and several nephews and nieces who resided at Troy, and a sister, Helen Grady, residing in Boston, Mass., and a niece in Ireland. She and her husband took 'a female child in its infancy, named Julia, and cared for it down to the time of her husband’s death, when the child was about eleven years of age, after which time she ceased to live with testatrix. Subsequently Julia, when about nineteen years of age, married one John Cummings. The child was not legally adopted, but was given the family name, and was known as Julia Murphy. The testatrix was at service and lived with her brother, Michael Ahearn, at the Union House, a hotel in the city of Troy. Michael Ahearn died about twenty years ago, and upon his decease Peter Buckley, the husband of Mary Buckley, the proponent, leased the house and continued its occupation until after the death of testatrix. When he took charge of the house the testatrix, who was previously employed as cook at that place, continued in the service of Mr. Buckley and his wife, Mary Buckley, who was a niece of testatrix, and remained in such service until the time of her death. It does not appear that any contract was made between the Buckleys and testatrix for her service during her stay there, or that any regular wages were exacted or paid to her by them during her entire service there. They made her presents of clothing and she received small sums of money from time to time.
    The will, after giving her brother, Andrew Ahearn, residing in Ireland, and who has since died, and to Helen Grady the sum of $100 each, gives the balance of her property, consisting of money in bank, something less than $3,000, to Mary Buckley.
    There were two subscribing witnesses to the will, one of whom was James H. Ryan, a lawyer, and the draughtsman thereof, who died more than a year before the death of the testatrix; Peter Buckley, the other subscribing witness, is the husband of the proponent and principal beneficiary. Buckley alone gave testimony in regard to the execution of the will.
    The remaining facts appear in the opinion.
    Frank S. Black, for executrix, Mary Buckley, proponent, and for Ellen Murdock, Fannie Boyd, Kate Cratty and Mary Buckley, individually; Martin & Kelly, for John Ahearn, Elizabeth Kelly, John F. Ahearn, William H. Ahearn, Helen Grady, Agnes Frelick and John Ahearn; Frank T. Noonan, for Helen Grady.
   Lansing, S.

Two important questions are presented for 'decision in this case. The first relates to the execution of the will. The second involves the charge of fraud and undue influence in procuring its execution on the part of the principal beneficiary. It is claimed on the part of the contestants that the will was not properly published by the deceased, and also that the deceased was. not advised of the contents of the will prior to its execution. There is no claim made that she was not a woman of fair intelligence and of sound mind, but it is claimed that since she could neither read nor write it was necessary for the due execution of this instrument to show that it was read to her, or, at least, that she understood its contents. This is undoubtedly the law. Matter of Lansing, 17 St. Rep. 440. The body of the will is in the handwriting of James H. Ryan. The signature of James H. Ryan, as a witness to the will, was proven. The will was signed by the testatrix by making her mark. Peter Buckley, the sole surviving witness, testified that lie signed his name to the instrument as a subscribing witness in her presence and at her request, and that he saw Mr. Ryan attach his name and make the cross between the words “Mary” and “Murphy,” Mrs. Murphy touching the pen; that afterwards Mr. Ryan asked Mrs. Murphy, who was sitting at the table at his side, “if she wanted Mr. Buckley and him to witness the will, and she said, ‘Yes.’ ” Mr. Buckley also testified that Mr. Ryan was preparing the will when he entered the sitting room, had it nearly finished, and that he saw or heard Mr. Ryan read the will to testatrix; “she said it was all right;” that, after its execution, Mr. Ryan said, “Mrs. Murphy, I will take this will and put it in my safe.” Although Mr. Buckley’s testimony is not very explicit or satisfactory as to what he heard or remembered in regard to the contents of the will when he heard it read to testatrix, yet I think it appears satisfactorily that Mr. Ryan did read the will to the testatrix, and that she knew its contents prior to its execution, unless a fraud was perpetrated upon her by Mr. Ryan in failing to read some portion of it to her, or in pretending to read what was not in the will. Mr. Ryan was a lawyer of considerable experience, and had been engaged for many years in the practice of law in Troy. There is no charge of any deception or wrongdoing upon his part in the matter, and I do not think I have the right to assume any misconduct on his part in the performance of his duty. On the other hand, I think that, when it appears that Mr. Ryan was engaged in the act of reading the will to her, I must assume that he read it correctly, and all of it, and that, when she stated it was “all right,” she understood its contents, and approved of it. Buckley was not called to hear the will read, or to be advised of its contents. If I am correct in the conclusion I have drawn from this testimony in respect to the execution of the will, I think it was formally and duly executed.

It is well settled in this State that a will may be properly executed by the mark of the testator; and, where one of the subscribing witnesses is dead, his handwriting may be proved, and thq testimony of the surviving witness who saw the mark made will be sufficient to prove the due execution of the instrument. Matter of Kane, 2 Connolly, 249; Matter of Dockstader, 19 St. Rep. 245; Matter of Hyland, 45 Law Journ. 209; Matter of Wilson, 76 Hun, 1. No particular form of words is required to constitute the due publication and request. It is a substantial compliance with the statute if in some way or mode the testator indicates that the instrument the witnesses are requested to subscribe as such is intended and understood by him to be his will. Matter of Hunt, 110 N. Y. 278, 281.

The declaration may be made in answer to a question, or even to a sign. Coffin v. Coffin, 23 N. Y. 15.

Publication and request may be incorporated in the same words and acts. Matter of Kane, supra; Coffin v. Coffin, supra.

The words of request or acknowledgment may proceed from another, and will be regarded as those of the testator if the circumstances show that he adopted them, and that the party speaking them was acting for him with his assent. Gilbert v. Knox, 52 N. Y. 125, 129.

The publication and request are both, I think, embraced in the language which Mr. Ryan used to testatrix when he asked her “ if she wanted Mr. Buckley and him to witness the will,” which was then present, and had been prepared by him in her presence, and executed by her; and, if I am right in my conclusion that she knew the contents of the will, I think the will was sufficiently executed to meet the strictest requirements of the statute.

The remaining question, namely, whether this will was the result of fraud and undue influence, is the more serious one, and requires a somewhat careful examination of the evidence and the law applicable thereto. The testatrix was about seventy-five years of age; had received a somewhat serious injury irntthe breaking of her arm abo-ut a year before the making of her will; was somewhat feeble in health; but, as far as appears, was not affected by any weakness of mind or memory. -The evidence tends to show that she knew who were the obj eecs of her bounty, and that she had sufficient mind and memory to decide between them, and also knew the amount and condition of her property. But the contestants, while not assailing the general proposition above stated, insist that the relation between the proponent and testatrix was that of master and servant; that there was dependence on the one hand, and control upon the other; and that in such a case the law will presume coercion, undue influence, or fraud unless the contrary appears by the most clear and satisfactory evidence. There is, undoubtedly, ample authority in support of this proposition if the fact shall be so found. Sears v. Shafer, 6 N. Y. 268; Ford v. Harrington, 16 N. Y. 285. They further insist that the will is an unnatural one, since the testatrix, by this instrument, gave the body of' her estate to a single niece, and thereby ignored the claims of those who were the natural objects of her bounty — her brothers and sisters; and they insist that, at least, a more wide distribution of her property among her numerous relatives, including those of a like degree of relationship as Mrs. Buckley, would have been more natural, and more in accordance with the presumed state of her affections.

On the other hand, the proponent insists that the relation of master and servant, as those terms are used and that relation is understood and treated in law, did not exist between these parties; that they were kindred by blood, and that such relationship was recognized between them in their intercourse with each other, and that their relations, from their long residence together and the intimacy of their intercourse, was more like that of mother and daughter; that, at least, they were, in addition to their kinship, very close friends and associates, between whom the most confidential and affectionate relations existed; and that the relation of master and servant was not recognized by them, or either of them, and did not in fact exist between them (whatever their outward or apparent relations were), and therefore the presumptions growing out of the relation of master and servant cannot be claimed in this case. Tbe proponent further insists that the testatrix’s relations with her brothers and sisters and other relatives, except the sisters of the proponent, were neither cordial nor close; indeed were hardly friendly, and that with one of them (Mrs. Powers) she was not on speaking terms, ,and that the same is true of her relations with her adopted daughter, with whom she had a serious difficulty, and to whom she had not spoken for five years prior to her decease; that a knowledge of the testatrix’s relations with other kindred (aside from Mrs. Buckley and her two sisters, Mrs. Boyd, formerly Ahearn, and Mrs. Murdock) would have at once suggested the conclusion that Mrs. Buckley would be the principal recipient of her bounty.

The law applicable to the various relations between these persons, as claimed by the contending parties, is well settled. If this instrument was solely the offspring of love and affection, however the same may have been prompted or caused, it should stand as the will of the deceased. Tucker v. Tucker, 45 St. Rep. 458; Coit v. Patchen, 77 N. Y. 533, 539; Matter of Green, 67 Hun, 527.

If, on the other hand, it was the result of dependence upon the part of the testatrix, and of control on the part of the principal beneficiary, it is, in law, the product of fraud, imposition, or coercion, 'and its probate should be refused. Matter of Green, supra; Tyler v. Gardiner, 35 N. Y. 559.

This leads us to an. examination of the evidence to ascertain what was the actual relation existing between these parties (proponent and testatrix) at the time of the making of the will, for the purpose of determining (1) where the burden of proof rests in this case, and (2) of determining whether the party upon whom the burden rests has sustained the same.

The testatrix lived with the proponent many years, and, doubtless, performed the duties of servant, although it appears to have been of her volition, without contract or compensation for her services. She was at the same time a friend and a relative.

There was a sharp contest between these parties upon the trial as to what were the real relations between the testatrix and her niece, Mrs. Buckley. The evidence upon the part of the contestant tends to show that she was a mere servant, a drudge in the kitchen, getting up early, working hard day in and day out; that she occupied the servant’s quarters, was not introduced to friends of the family, did not sit at the table with the family— in fine, was treated as a servant and was such; that the testatrix was old, somewhat feeble in health, was ignorant, could neither read nor write, and was therefore easily the subject of fraud and imposition, and that her situation and relations with Mrs. Buckley were such as to afford her ample opportunity to alienate the affections of the testatrix from the balance of her kindred, and center them on herself; that the manner of the production of the will, as shown by the testimony, indicated fraud, if not coercion, in its production; that Mr. Ryan was comparatively a stranger to testatrix, and the will was prepared shortly after a serious quarrel with her adopted daughter in relation to the custody of the bank books; and that the proponent took advantage of the testatrix’s natural resentment and of its influence over her to obtain from her this .will. There is no direct evidence of any fraud or coercion in making this will, and I fail to find anything growing out of the manner of its immediate production which indicates that any undue advantage was taken of her by the proponent. It is true Mr. Ryan was a comparative stranger to her, but she had employed him to procure her bank books from her adopted daughter, Julia Cummings, who refused to give them up. It appears that, shortly after obtaining the books, she requested Mr. Ryan, in the presence of Mr. Be Groot, his clerk, to draw her will, and in a few days afterwards her will was drawn under the circumstances above narrated. Mrs. Buckley appears to have been in or about the room when the will was drawn, for, when it was partially completed, she went, and called her husband, Mr. Buckley, who was asleep in another part of the house, to come and witness the will. Nothing appears from the circumstances attending the making of the will to show that the instrument was not the result of an intelligent mind, acting without restraint or undue influence. As to the relations between these parties, testatrix and proponent, it is safe to say that they were apparently those of master and servant, whatever their real relation might be. The testatrix was unlettered, mingled but little with the world, had been in the kitchen of the proponent for twenty years. She was also quite advanced in years, had been in ill health for some time, and, under snch circumstances, would, doubtless, look to Mrs. Buckley for advice and counsel.

I am of the opinion, therefore, under the circumstances, that the insti’ument should not be admitted to probate upon the bare proof of its formal execution, but that it was the duty of the proponent to go further, and show that, while their apparent relations were those of master and servant, their real relations were otherwise, or, at all events, that proponent had taken no advantage of her relations with' testatrix; and the burden of proof, I think, was therefore upon proponent to show the will was. the result of testatrix’s own free act. Van Pelt v. Van Pelt, 30 Barb. 134; Loder v. Whelpley, 111 N. Y. 239.

This, proponent has essayed to do, and has introduced very considerable testimony tending to> show that the .relations between her and testatrix were not those of master and servant, but were those of kindred and close, intimate friendship; that the testatrix was never treated in the family as a servant; never ordered or directed as to her work; that no wox*k was exacted of her more than she desired to do; that she performed her duties from motives of love and affection, rather than for pay; that she was counseled with, advised, and treated as a mother would have been had she been performing the same duties for her daughter; that testatrix roomed with the sister’s of the proponent, and with proponent’s own daughter, was nursed, when sick, by proponent and her family, and was in all respects, so far as consistent with her employment, treated as a friend and relative; that the testatrix served -without compensation other than such as one member of a family would naturally give to another by presents and voluntary purchases of articles of clothing, from time to time, as. affection on the one side and apparent needs- upon the other prompted. The proponent also offered considerable testimony tending to show that the relations between the testatrix and her brother and sisters were not cordial; that her intercourse and association with them was infrequent; and that, with the exception of her sister in Boston (Mrs. Grady, who had a pension), they were all in comfortable circumstances. It further appears from the evidence in this case, the most cogent of which was furnished by Mrs. Boyd, a witness called by the contestants, that the relations between the testatrix- and proponent were more intimate and affectionate than those between the testatrix and any of her other relatives. Indeed, Mrs. Boyd testified that she roomed with testatrix for many years when she resided with her sister, the proponent; that she learned in her intercourse with testatrix that her affections were centered upon the proponent, and that the proponent was her favorite among all her relatives; that she was also greatly attached to the proponent’s family, and was exceedingly kindly treated by them. Mrs. Boyd’s testimony, which appears to be frank and unbiased (since she had some reason to expect from her relations with the testatrix that she would be remembered in her will), furnishes satisfactory evidence, in connection with the other facts and circumstances in the case, that the will was made in accordance with the affections, and unbiased inclination of the testatrix.

In conclusion, this instrument, following the lead of the testatrix’s affections, and being offspring of an intelligent mind, unaffected by fraud or coercion, however partial it may appear or unjust in discriminating against her other relatives, is fully established as the will of the deceased, and must be admitted to probate.

Decreed accordingly.

Note. — A request to the witnesses to sign, made by a person vdio is superintending the execution of a will, within the hearing and with the silent permission of the testator, is equivalent to a publication and request by the latter. (Matter of McGraw, 9 App. Div. 372.)

A statement that the paper is a “document” or “instrument” is insufficient. (Matter of Tyrrell, 28 Misc. Rep. 106; affd. 47 App. Div. 560; Matter of Delprat, 27 Misc. Rep. 355.)

Knowledge of the contents of the will may be presumed from the facts that the draft from which it was prepared was submitted to the testatrix, and that she retained the will until her death. (Matter of Rohe, 22 Misc. Rep. 415.)  