
    Anna Isabelle Hutchinson, Respondent, v. Joseph T. McCaddon and Theodore D. McCaddon, Individually and as Executors of and Trustees under the Last Will and Testament of Ruth Louisa Bailey, Deceased, and Lillie Elizabeth Harper, Appellants, Impleaded with Ralph Gage Spencer, Respondent, and Anna Louisa Hutchinson and The Woodlawn Cemetery, Defendants.
    Second Department,
    July 30, 1915.
    Will — evidence insufficient to establish, undue influence.
    Plaintiff brought an action to contest the validity of her sister’s will upon the ground that it had not been properly executed, and that the testatrix was of unsound mind and physically weak, but the only issue submitted to the jury was the question whether or not the execution of the will had been procured by the undue influence of a brother of the testatrix. A verdict in favor of the defendants was set aside for the erroneous admission of statements by the testatrix subsequent to the execution of the will as to why she did not make the plaintiff “an heir” and as to the criticisms upon the conduct of her nephews subsequent to the execution of a prior will. Held, on all the evidence, that the plaintiff did not sustain the burden of proof which was upon her, even though the evidence claimed to have been erroneously admitted, be disregarded, and that the verdict should be reinstated.
    Appeal by the defendants, Joseph T. McCaddon and Theodore D. McCaddon, individually and as executors and trustees, and another, from an order of the Supreme-Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of February, 1915, setting aside the verdict of a jury in their favor, and granting plaintiff’s motion for a new trial.
    
      Delevan A. Holmes [Charles P. Rogers with him on the brief], for the appellants.
    
      Arthur M. Johnson [John T. Bottom with him on the brief] and J. H Auchincloss, for the respondents.
   Jenks, P. J.:

The plaintiff contests the will of her sister, Ruth Bailey. Upon the sole issue submitted, namely, whether the will was procured by the undue influence of the defendant J. T. McCaddon, who was a brother of the said testator, the jury found for the defendants. But the learned justice who presided set the verdict aside for erroneous admission of testimony. The testimony was of statements made by the testator subsequent to the execution of the will, why she did not, as she once expressed it, make the plaintiff ££ an heir,” and which involved strictures upon the conduct of her nephews subsequent to the execution of a prior will. The issues originally tendered by the plaintiff comprised failure of proper execution of the will and the unsound mind and physical weakness of the testator to the extent of testamentary incapacity. As we understand it, the learned trial court thought it erred because, at the close of the plaintiff’s case, it had announced that it would submit to the jury only the question of undue influence, and, therefore, that such testimony was inadmissible on the question of fraud or duress. (Waterman v. Whitney, 11 N. Y. 157; Smith v. Keller, 205 id. 39.)

We think that the verdict should be reinstated, because it is obvious that with such testimony rejected the plaintiff should not have gained a verdict. (Rogers v. Wheeler, 52 N. Y. 262; McGean v. Manhattan Railway Co., 117 id. 219; 38 Cyc. 1437.)

The testator was the childless relict of Bailey, who accumulated a large fortune as a showman; The will was made in 1908, and the testator died in 1912. After some comparatively small bequests, she conveyed the residuary estate of about $1,500,000, to her two brothers as trustees, with directions that in the event of the survival of the plaintiff they should provide for a life annuity to her of $10,000 per annum; that upon her death the corpus set apart for such annuity should revert to the residuary estate. She provided that the residuary estate should be paid absolutely and equally to her said two brothers and her sister, Lillie Harper, with directions that in case of the death of any of them without issue, there should be equal distribution to the survivors.

The general scheme was in recognition of natural claimants, and it was abnormal only in the discrimination against the plaintiff. The effect of that discrimination was to cut off the children of the plaintiff from any benefit under the will, or through any disposition which the plaintiff might make .if any absolute estate had been given to her. The plaintiff shows that in 1906 the testator made a former will, whereby she provided for the plaintiff as for her other brothers and sisters. She adduces proof to show the testator’s feelings towards her nephews and towards McCaddon respectively. She adduces proof that McCaddon lived with the testator, was always at her elbow, had a large part in the management of her affairs, and that he was bitter against his said nephews. The nephews had risen to responsible positions in the employ of the testator’s husband. And there is proof that he and the testator for a long time held them in high affection. There is proof that McCaddon once had left such employ to set up a rival show, and that the testator and her husband condemned what they considered his disloyalty in unmeasured terms. But there is also proof that permits the inference that, prior to the death of the testator’s husband, he, the testator and McCaddon were on friendly if not intimate terms. And there is proof that during the period that intervened the making of the first will and the last will, the testator became much displeased with her said nephews because they opposed and sought to thwart her desire to have McCaddon made a director in the corporation which maintained the show, in order that he might co-operate with them, and that this displeasure was great. The testator tried to bring her nephews and McCaddon in harmony, but apparently they could' not work together. During that interval the nephews left the corporation and entered upon other ventures of a similar character, but McCaddon remained until the sale of the corporation.

The facts that the testator once held her nephews in warm affection and once was incensed against her brother, do not import that this woman could not suffer a change of heart. Such change might be ascribed to caprice without the influence of McCaddon. And it might, updn thS evidence, be attributed to this subsequent conduct as viewed by the testator. For the proof permits the inference that, as time went on, McCaddon made peace and the nephews made strife, both with the testator.

McCaddon had the opportunity, and the proof permits the conclusion, that he had the animus to deal his nephews, a blow through the will of the testator. But that is not enough. There is no contention that he exercised any physical restraint upon the testator. And, although the plaintiff could ' establish indirectly undue influence, there are no circumstances which permit no other inference than that the testator wrote, not her own will, but that of McOaddon under his coercion and duress. She is described as a woman of strong mind and will, and there is not a bit of evidence to indicate that McOaddon dominated her or effaced her in any way. Undoubtedly she was warmly attached to the plaintiff, but the plaintiff personally is amply provided for as long as she lives. We conclude, then, that the plaintiff did not sustain the burden which was upon her, even though the evidence referred to by the learned trial court is stricken from the record.

The order is reversed and the verdict is reinstated, with costs to the appellants.

Carr, Stapleton, Rich and Putnam, JJ., concurred.

Order reversed and verdict reinstated, with costs to the appellants.  