
    In the Matter of the Probate of the Last Will and Testament of Jane Ann Marlor, Deceased. Seth R. Johnson, as, Executor, etc., of Jane Ann Marlor, Deceased, and Others, Appellants; Charles E. Marlor and Others, Contestants, Respondents.
    Second Department,
    October 4, 1907.
    Will:—undue influence—attorney named as executor — burden of proof.
    The, fa.ct that the testatrix names her' attorney and confidential ad viser as executor raises no, presumption of undue influence, nor does it alter the rule that the burden, of proving undue influence by clear and convincing evidence is. upon the party asserting it. The. rule holds whether the executor be made a-, beneficiary or not. •,
    Appeal by Seth B. Johnson, as executor, etc., of Jane Ann Marlor, deceased, and' others, from a- decree of the. Surrogate’s Court of-the county of Kings, entered in said,Surrogate’s Court on the. 2d day of January* ■ 1907, refusing ■■ to admit to probate an instrument propounded as the last, will and testament of • said decedent.'
    
      John Hill Morgan [Silas B. Brownell with him on the brief], for the appellants.
    
      Jerry A. Wernberg and William, D. Veeder, for the respondents.
   Hirschberg, P. J.:

The surrogate finds as facts in the decree appealed from that the instrument alleged to be the last will and testament of the deceased was not duly executed as required by law; that the testatrix at the time of executing it was incompetent to make a will; and that she was then acting under restraint and undue influence. • Not a word of proof was given on the hearing before the surrogate tending to establish any one of these three findings. On the contrary, the evidence is clear and- concl usive that the will was executed with all the formalities and requirements of the law, that the testatrix at the time of its- execution was in all respects competent," and that she was not under any restraint or undue influence whatever. In the opinion written by the learned surrogate he states.as follows: “ There is no question as to the sanity of the testatrix or that the legal formalities necessary to the execution of the will Were complied with. The sole question to be determined is as to the existence of undue influence.” (52 Misc. Rep. 263.) On the question of undue influence, the learned surrogate holds that inasmuch as the executor named in the will was the attorney of the deceased, tliat fact raises a presumption of undue influence, and he accordingly concludés from that fact alone that the attorney must have -exercised some undue influence over the testatrix, and thereupon has rejected the will. There is no authority in this State, for the proposition that the naming of an attorney or confidential adviser as an- executor is a suspicious circumstance or one which raises a presumption of undue influence.. Such an act does not operate to change the general rule that the burden of proving undue influence is upon the party asserting it and that it must be established- by clear and convincing evidence. The proponent in this case is. not a beneficiary under the will, and ■ it has been held in this State that even where the draftsman of a will is a beneficiary, the fact would raise no presumption to overthrow the will. In Post v. Mason (91 N. Y. 539) it was held that where ■ a will contained a legacy to the draftsman, an attorney who, at the time of the execution of the will was, • and" for a long time previously had been, the counsel of the testator, the fact did not raise a presumption that the influence of the attorney was unduly exercised, or that the intention of the testator was improperly controlled. In Matter of Smith (95 N. Y. 516) the court said (p. 523): “ It has been held that the fact that the beneficiary was the guardian, attorney . or'trustee of the decedent, does not alone create, a presumption against a testamentary gift, or that it was procured by undue influence. (Coffin v. Coffin, 23 N. Y. 9; Post v. Mason, 91 id. 539; 43 Am. Rep. 689; Parfitt v. Lawless, L. R. 2 Pro. & Div. 462.) The mere fact, therefore, that the proponent was the ¡attorney of the testatrix did not, according to the authorities cited, create a presumption against the validity of the legacy given by her. will.” In Haughian v. Conlan (86 App. Div. 290) this court held that the fact that the lawyer who drew the will was bequeathed legacies was. utterly insufficient to warrant the inference that the will was the result of, undue, influence. (See, to the same effect, Clarke v. Schell, 84 Hun, 28; Matter of Suydam, Id. 514; affd. on opinion below, 152 N. Y. 639.)

The decree should ‘ be reversed, with costs to- the appellants payable out of the estate,, arid the will admitted to probate.

Woodward, Jenks, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county reversed, with costs payable out of the estate, and the will ¡admitted to probate.  