
    Matter of the Probate of the Last Will and Testament of Lena Brunor, Deceased.
    
    (Surrogates Court, Kings County,
    April, 1896.)
    1. Will — Undue influence.
    The existence of undue influence by physical coercion, threats or duress must be shown affirmatively by the party who asserts it, and its execution upon the very act must be proved.
    8. Same..
    . About three months before her death testatrix made a will leaving her entire estate to her husband. She called alone on her attorney, with whom her husband was not well acquainted, and gave instructions as to drawing the will, and about a week later called with her husband and executed it. It appeared that testatrix, who was a large, masculine looking woman, had frequent quarrels with her husband and finally committed suicide, but it was shown that she was able to take care of her property and transact her own business; that her husband took no part in the execution of the will and that she kept possession thereof. Held, that no undue influence was shown.
    Pbobate of will.
    Eugene Cohn, for proponent.
    Herman Frank, for contestant.
    
      
       Received too late for insertion in proper place.— [Rep.
    
   Abbott, S.

Lena Bunor died- on the 25th day of June, 1895,' from the effects of poison self-administered.

In early life she married one Herman Falk, with whom she lived ' happily for twenty-five years, and by thrift and economy they amassed a snug fortuné of some $40,00Q, all of which, they being childless, was left to the wife Lena by the will of the husband, who died in 1893. About one year after the first husband’s' death, to-wit, on the 1st day of August, 1894, she was introduced by a matrimonial agent to one Martin Brunor, and two days afterward, on August 3d, she was married to him. On December 31,. 1894, she executed deeds which convéyed all her real property to herself for life, with remainder to Emil Brunor, her stepson.

On March 23, 1895, she executed a last will and testament leaving everything to her husband, Martin, Brunor, the proponent herein. „ ■* _ '

On June 24, 1895, she had a violent quarrel with her husband, and in the afternoon of that day she took paris green, from the effects of which she died. Upon the trial all the objections were brushed away except that of undue influence, but that was strenuously insisted upon; and the contestants urgently claim that the results' recounted in the foregoing statement of facts could not have been accomplished except by influence that was undue. This array of facts would perhaps seem on first thought to give some color of probability to this contention, but a close analysis of the evidence renders the proposition extremely doubtful

In the case of Marx v. McGlynn, 88 N. Y. 357, Judge Earl says, at page 370: . “Undue influence may be exercised by physical coercion or by threats of personal harm and duress, by which a person is compelled, really against his will, to make a testamentary disposition of his property. That kind of undrie influence - can never be presumed. It must he shown hy evidence legitimately proving the facts, and where it-is established, the will cannot be admitted to probate, for the reason that it, is not.the will of the testator. There is - another kind of undue influence more common than that just referred to, and that is where ther mind : and the will of the testator has been overpowered and subjected to the will of another, so that while the testator willingly and intelligently executed a will, yet it- was really the will, of another,, induced by the overpowering influence exercised upon a weak or impaired mind.- Such a will may be procured by working upon the fears or the hopes of a wéak-minded' person.”

We will first discuss the testimony bearing upon the first kind of undue influence described by Judge Earl, supra.

That the proponent frequently quarreled "with and often maltreated his wife is sufficiently established by the evidence produced by the contestants, but I think it also appears that the wife did not- ' tamely submit to his abuses, and was able to and did take her own part against him. Her picture, introduced in evidence, portrays her as a large, masculine-looking woman; while the proponent is a small, rather undersized man, and it is my impression that he did not always come off first best in their encounters.

I do not think that the evidence legitimately proves the fact that the proponent compelled the making of this will by physical coercion, or threats or duress.

The existence of this kind of undue influence must be shown affirmatively by him who asserts it (Matter of Martin, 98 N. Y. 193), and, moreover, the exertion of the influence upon the very act must be proved, and it will not be inferred from opportunity ox-interest. Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191; Cudney v. Cudney, 68 N. Y. 148. It appears that the testatrix on the 18th day of March, 1895, a week before the will in question was executed, went over alone to the offices of the attorneys who had done, business for herself and her first husband for years, and who were, at this time, not well known to the proponent, and saying that her relatives had troubled her, gave the instructions for this will leaving all hex- property to her husband. On the 23d she went over again accompanied by her husband, and the paper was executed, but he appears to have taken no part in the proceedings. I do xxot find here any affirmative evidence that any undue influence was used by the proponent to compel the testatrix to perform this act. On the contrary she seems to have acted entirely independently of him.

From the testimony of the subscribing witnesses, who are lawyers absolutely disinterested, I cannot believe this woman was compelled by brute force, or was in fear of bodily harm, or was under duress of any kind when she gave the instructions for the will or when it was executed.

The other kind of undue influence defined by Judge Earl (supra), supposes a testator of weak or impaired mind, and this may, sometimes, be circumstantially proved. But no such hypothesis exists in this case. It is shown beyond peradventure that this woman was no weakling, either mentally or physically.

She was able to take care of her property and transact her business and to do it. well. The cause of the quarrel which drove her to suicide was that her husband refused to whitewash a room in her house, so that she1 might' Save the amount necessary to employ a painter.

Much of the testimony adduced by the contestants was given by female witnesses, some of whom were apparently very hostile to the proponent on account, of business relations: and others, who evidently disliked him on account of his bad treatment of his wife at times, but I do not think it strong enough to substantiate the claim of the contestants.

The testatrix had no Children and the' will is contested by a brother living in Hew York "city, and a sister residing' in Germany, with neither of whom were'her relations particularly close, in which aspect her will need not be considered unnatural.

The “ fifth ” paragraph of .the will sufficiently indicates the feelings of the testatrix toward her cousin, Bertha Hirsch, and her reason for not leaving her anything, and comment is unnecessary.

After the will was executed it was handed to Mrs; Branor, and was taken home and placed by her in á little desk in her room, where it was accessible to her at all times down to the very day of her death." - .. ■ ’

If she had any such permanent hard feelings against her husband" as is- claimed by the contestants, how easy it would have been for her to have destroyed this instrument at any timé, after it was executed. She could have destroyed the will more easily perhaps than have taken the poison. While the record discloses many remarkable and peculiar circumstances, I am not satisfied that the proof of. undue influence is sufficiently strong to warrant me in setting ásid'e the will,

Decreed accordingly.  