
    Matter of the Contested Will of Martha Spooner, Deceased.
    
    (Surrogate’s Court, Bronx County,
    January, 1915.)
    Wills —• witnesses — contradiction of witnesses does not of itself make it incumbent on surrogate to,refuse probate — burden of proof — undue influence not presumed.
    The fact that the witnesses to a will contradict each other does not of itself make it incumbent upon the surrogate to refuse probate, particularly where the witnesses have signed an attestation clause reciting a full compliance with the statute.
    Undue influence cannot be presumed and the burden of proving it rests upon the party to the proceeding who raises that issue.
    Proceeding upon the probate of a will.
    1 George B. Class, for proponent.
    William R. Spooner, contestant in person and attorney for contestant.
    
      
       See 87 Misc. Rep. 170.— Repr.
    
   Schulz, S.

The decedent died on the 12th day of March, 1914, leaving her surviving her husband and three sons all of full age. Her alleged will bears date the 24th day of March, 1913, and contains provisions giving, devising and bequeathing all of her property to one of her sons who is also named as executor. The surviving husband and one of the surviving sons filed an answer containing the usual objections of which those to the effect that the alleged will was not executed in conformity with the statute, that the testatrix was not of sound mind and that the execution of the document was procured by unlawful and undue influence and coercion were urged upon the hearings. The three attesting witnesses were the attorney who drew it, a stenographer in his office and the wife of one of the surviving sons of the testatrix, being the son who now is one of the contestants. The alleged will has a full attestation clause attached and the signatures of the three attesting witnesses appear beneath the same.

The testimony of two of the witnesses, to-wit, the attorney and his stenographer, would lead to the conclusion that the statutory requirements as to execution were fully complied with, while that of the other witness, the wife of the contestant, would tend to show that there were serious omissions and that the steps as recited by the attestation clause which she signed were not taken. As against the testimony of the other two witnesses who substantially agree, and which I can find no reason for doubting, I cannot give much weight to the testimony of the other witness, keeping in 'mind her admissions to the effect that she and the testatrix were both present in the attorney’s office when she, the witness, signed; that the signature to' the attestation -clause which purports to be her signature is in fact her signature, and that she is the wife of the contesting son.

The fact that she contradicts the other two witnesses is not of itself a ground for refusing to admit this document to probate. The surrogate is not bound to refuse probate because one of the witnesses testifies in contradiction to the other and against the document. Code Civ. Pro., § 2612; Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Rugg v. Rugg, 83 id. 592; Matter of Pepoon, 91 id. 255; Matter of Cottrell, 95 id. 329; Matter of Bernsee, 141 id. 389; Matter of Marley, 140 App. Div. 823; Matter of Graham, 9 N. Y. Supp.122; Matter of Merriam, 16 id. 738; Matter of Seymour, 76 Misc. Rep. 371. An attorney prepared and was present at the time of the execution of the instrument and this would seem to raise a presumption of fact that the statutory requirements were fulfilled (Matter of Kindberg, 207 N. Y. 220), but even without that presumption I am satisfied from the testimony produced before me that all of the formal statutory requirements were fully complied with in the execution of the propounded document.

This leaves but two other questions to be determined. Was the' testatrix of sound mind, and, if so, was the execution of the paper procured by the exercise of undue influence and coercion!

A number of hearings were had in this matter and a large amount of testimony was taken. It will serve no useful purpose to analyze the same in this opinion. Suffice it to say that I am convinced that upon the day when this alleged document was executed by her the decedent was of sound mind, memory and understanding, and not for any other reason incompetent to make a will.

On the question of undue influence it appears that the disposition made in the alleged will is not an unnatural one, under all the circumstances. The testatrix in the document itself explains why she. preferred the son in question, over her other children. She says that in making the testamentary provision in favor of her son to the exclusion of her other children she did so in the thought of his physical infirmity and of his being in consequence, in greater need ” of her estate than any of her other children. This son is suffering from a physical infirmity and it was natural that the mother in considering the possible disposition of her property among her children, all of whom were grown up, and all of whom were no doubt dear to her, should desire, in so.far as she could do so, to help the son whose deformity made it more difficult for him to provide for himself, and hence prefer him over her other children. There are also present circumstances which explain the failure of the decedent to make her husband a beneficiary. The relations between husband and wife, as appears from the' testimony, were not pleasant. It is not for this court to decide upon whom the fault for this condition rested. The fact is that it did exist and that at the time when the document was executed, it had become such that legal proceedings between the decedent and her husband were pending or were in contemplation. In the differences existing between husband and wife, the son who is the beneficiary under this alleged will sided with his mother, the decedent, and for a time prior to her death, resided with her. It was natural that this should endear him still more to the decedent and that as a result of his faithfulness to her her affection for him was increased and her feelings of gratitude toward him aroused. But the influence of affection and gratitude upon her does not constitute undue influence, because if a' document whose. provisions are brought about by feelings of gratitude, affection or pity were for that reason void as a last will and testament, few testamentary dispositions could be given validity. Children’s Aid Society v. Loveridge, 70 N. Y. 387; Matter of Mondorf, 110 id. 450. The influence exercised over a testatrix before it can be said to be undue influence, must be such as destroys her free agency, as suppresses her independent volition, and substitutes for her will, the will of another, so that the instrument no longer expresses the wishes and desires of the alleged testatrix, but rather the wishes and desires of another person; it must amount to coercion. Van Ness v. Van Ness, 78 Misc. Rep. 592, and cases cited. Nor can I assume that there was undue influence used because the son living with the decedent may for that réason have had an opportunity to exercise it. Opportunity of itself does not justify the conclusion that the opportunity was availed of. Cudney v. Cudney, 68 N. Y. 148; Post v. Mason, 91 id. 539. Undue influence should not he presumed, and while it is true that it is not often the subject of direct proof, it must nevertheless be, the subject of proof- or there must at least be evidence from which its existence may be reasonably inferred. Loder v. Whelpley, 111 N. Y. 239; Matter of Richardson, 137 App. Div. 103; Matter of Campbell, 136 N. Y. Supp. 1086. In this matter there is no evidence which in my opinion would justify a finding that undue influence or coercion was exercised; cértainly the contestants have failed to sustain the burden of proof upon this issue which under Matter of Kindberg, supra, is upon them.

In the course of the trial the proponent called as a witness the attórnéy of the decedent who was an attesting witness to the alleged will, and questioned him as to conversations which he had with the' decedent prior to the day when the alleged will was made and which it appears were professional communications. The court admitted this testimony on the theory that by making her attorney an attesting witness to the will, the objections which otherwise could have been raised to the same were wáived. Since the submission of the matter, the court is confirmed in the opinion that the attorney having been made a subscribing witness can testify to all the circumstances attending the execution of the instrument. Matter of Cunnion, 201 N. Y, 123. There is a question, however, whether the'attorney can testify to - prof essional communications had with the decedent while acting as her attorney and which do not relate to the alleged will. Matter of Bedlow, 67 Hun, 408. I think the question is one that is open to discussion because it might very well be that testimony as to professional communications between the attorney and the decedent regarding other matters than the execution of the alleged will itself, which in nowise tends to disgrace her and which throws light upon her relations with one of the contestants, might have an important bearing upon the mental capacity of the alleged testatrix and her state of mind.toward the contestant in question, and it might be argued that by making her attorney an attesting witness, the alleged testatrix intended • that he should testify to any facts within his knowledge which would sustain her testamentary disposition. As the question, however, is a close one, and as there is so much evidence in this case which in my opinion justifies the conclusions I have reached without considering the testimony of the attorney referred- to, I have disregarded his testimony as to all professional communications with the decedent prior to the day on which the alleged will was made.

If I am correct in my conclusions it follows that the propounded document must be admitted to probate as the last will and testament of the decedent.

Probate decreed.  