
    
      In re Rosecran’s Will.
    
      (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    Wills—1’raud and Undue Influence.
    A will gave all testatrix’s property to her minor grandson, who was her sole descendant, and directed that on his death without issue the property should he divided among testatrix’s brothers, sisters, and nieces. Testator’s brother was named sole executor, with authority to sell or lease real estate in his discretion, and to educate and support the grandson until he became 21 years of age, “and after that, if it be necessary. ” Testatrix had full confidence in the brother named as executor, and had an unfavorable opinion of the business capacity of the grandson’s father. Testatrix was 52 years of age at the time of executing the will. Held, that the will was not the result of fraud or undue influence.
    Appeal from surrogate’s court, Sullivan county.
    Application by Charles H. Porter by Melvin Porter, his general guardian, to revoke the probate of the will of Nancy Rosecrans, deceased. David B. Smith, the executor, and' others, who were named as legatees and devisees in the will, were cited as parties defendant. Charles H. Porter was the grandson and sole descendant of Nancy Rosecrans. The probate was confirmed, and petitioner appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      T. F. Bush, for appellant. J. 8. Van Cleef, (Thornton A. Niven and It. R. Jelliff, of counsel,) for respondent David B. Smith. Thornton A. Niven, for respondent Samuel N. Smith.
   Ingalls, J.

We have carefully examined the evidence in this case, and are convinced that the surrogate has decided the case correctly, and the opinion which he has submitted indicates that his decision was the result of deliberate consideration. The evidence fails to show that the testatrix was induced through fraud, or undue influence to make the will in question. We do not perceive that such will is materially at variance with the statements made by her previous to the execution thereof in regard to the provision which she intended to make for her grandson, Charles Porter. Doubtless she regarded him as the primary object of her bounty, and we think that the provisions of the will in his favor are in entire harmony witli such view. The will is as follows: “In the name of God, amen. I, Nancy Rosecrans, of the Town of Neversink, Sullivan county, and state of New York, being of the age of fifty-one years, and of sound mind and memory, do make and publish this my last will and testament, as follows, viz.: First. I give and bequeath all my estate, both real and personal, as follows: I give all my property of every kind whatsoever to my grandson, Charles Porter, under the following conditions: Second. If said Charles should die without issue,— that is, without leaving children,—then and in that case I direct and give my entire estate as follows: One-third to my brother David B. Smith, the balance between Anna Porter, Cornelia Hansee, Bmeline Porter, sisters, and Nathaniel D. Smith and Samuel N. Smith, brothers, and Susan Puller and Emily Porter, nieces, making seven to share alike equally. My said estate to be managed by my executor, who is authorized to sell or lease said real estate as his judgment may direct. And my said executor is authorized to furnish my grandson, Charles Porter, all that may be necessary to educate, clothe, and take care of him until he arrives at the age of twenty-one years, and after that, if it be necessary. And, lastly, I do hereby nominate and appoint my brother David B. Smith to be my sole executor of this my last will and testament, hereby revoking all former wills by me made. In witness whereof I have hereunto set my hand and seal this- fifth day of January, in the year of our Lord one thousand eight hundred and eighty-eight. Nancy Rosecrans. [l. s.]” The will was properly executed in all respects, in regard to form. Construing the will in the light of the circumstances proper to be considered, we extract the following as the scheme which the testatrix probably had in her mind, and intended to ■carry into effect, by her will: She purposed to provide for the support and ■education of Charles Porter until he became 21 years of age, when, she probably assumed, he would be able to care for himself, and she intended that he •should; but to provide against any failure in that respect, arising from sickness, accident, or misfortune, she directed that out of said fund he should receive such further assistance as should be necessary to secure him a support ■during his natural life. The will provides in that respect as follows: “And the said executor is authorized to furnish my grandson, Charles,Porter, all that may be necessary to educate, clothe, and take care of him, until he .arrives at the age of twenty-one years, and after that, if it be necessary.” The will further provides, in substance, that in case Charles Porter should die without leaving issue him surviving, that the residue of the fund should go to, and be divided among, the brothers, sisters, and two nieces of the testatrix, who are named in such will, and in the proportions therein specified. By such provisions of the will the testatrix seems to have carried out substantially all that even the evidence relied upon by the appellant would seem to indicate was her intention in regard to the provision for Charles Porter out ■of her estate. It is true that by the terms of the will the entire estate of the testatrix has not become directly and unconditionally vested in Charles Porter, and it seems quite evident that she did not intend that it should so vest. For some reason, whether well founded or otherwise, it is quite evident that she entertained an unfavorable opinion in regard to the business capacity of Melvin Porter, the father of Charles Porter, and as to his ability to providently manage property; and, entertaining such views, she would not be likely to subject to his control property designed for his son. In regard to the other persons named in the will as the objects of the bounty of the testatrix in the event that Charles Porter should die leaving no issue, we do not perceive but that such selection was natural, and consistent with the relationship which they bore to her, and no inference, we think, should be indulged that such selection was the result of fraud or undue influence. The testatrix derived her estate from her husband, Charles H. Rosecrans, who, by his will, as we infer from the evidence, devised and bequeathed to her his entire estate unconditionally, subject only to the payment of a legacy of $500 to Charles Porter. We may therefore assume that the testatrix was left free to dispose of her property as she saw fit, and it would seem quite natural that, after properly providing for the grandchild, who was obviously an object-of affection to the grandparents, that she would next remember her own relatives in the bestowment of her bounty; and that is what she did by her will.

The foregoing considerations in regard to the manner the testatrix disposed of her estate by her will are only material in so far as they reflect upon the question whether such disposition was the result of fraud or undue influence. David B. Smith, a brother of the testatrix, was selected and named in the will as the sole executor thereof. We fail to discover, in view of the facts disclosed, anything unnatural or seriously objectionable in'such selection, as it is apparent that the testatrix placed in him the fullest confidence. On the 24th of October, 1886, she executed to him a power of attorney conferring upon him authority as follows: “To transact my business in collecting debts, loaning money, and looking after and doing anything that may be necessary i.n his judgment for my interest,” etc. The testatrix was about 52 years of age when the will was executed, and we fail to discover anything which indicates on her part weakness of mind, or a perverted judgment, Regarding the nature of the will, the relation of the parties, and the character of the duties imposed upon the executor and trustee in reference to the management of the fund, we conclude that no substantial or sufficient reason has been shown which should induce this court to interfere with the decision of the surrogate. The duties which are by the will devolved upon the executor, and which he will be required to discharge in the character of trustee, are of such a nature-that the court can be invoked at any time to prevent any abuse of the trust, and to protect the rights of Charles Porter, should any such exercise of authority become necessary. We are satisfied that the facts of this case do not. demonstrate even a well-founded suspicion either that the will was the result of fraud or undue influence, or that the executor will prove false to the trust which has been committed to him. The decree should be affirmed, with costs in this court to be paid out of the fund.

Landon, J.

I concur, but I do not think it necessary to construe the will.

Learned, P. J., concurs.  