
    (67 Hun, 408.)
    In re BEDLOW’S WILL. In re STILWELL.
    (Supreme Court, General Terra, First Department.
    February 17, 1893.)
    1. Wills—Undue Influence—Presumption.
    The fact that testator was weak and easily influenced, and that opportunity of exercising undue influence over him has been afforded those benefited by his will, raises no presumption that such undue influence was exercised.
    2. Same—Misinformation of Testator.
    The fact that one who disinherits his family was mistaken in reference to their conduct towards him is no ground for setting aside the will.
    8. Same—Probate—Evidence.
    While, on the probate of a will, it is error to allow the attorney who drew the will to testify to transactions of a professional character between himself and deceased, other than the circumstances immediately surrounding the execution of the will, of which he was a witness, this is not ground for reversal, where the exclusion of such evidence would have in no way affected the conclusion; Code Civil Proc. § 2586, providing that the hearing on appeal from the surrogate shall he de nova, and section 2545 providing that no decree of a surrogate shall be reversed for error in rulings on evidence, unless exceptant was necessarily prejudiced thereby.
    4. Witness—Transactions with Decedent.
    The mother of a beneficiary under a will is not an interested party, within Code Civil Proc. § 829, providing that where the executor, administrator, or party deriving title or interest, is examined in his own behalf concerning transactions with decedent, the adverse party may testify in regard thereto.
    5. Same.
    Where testamentary disposition' is shown, parties interested in resisting such disposition ■ have no right to testify to personal transactions with testator tending to show that the facts stated by testator as the reason for his testamentary disposition were untrue.
    Appeal from surrogate’s court, New York county.
    •Petition of Sarah A. S til well for probate of the will of Alfred Bedlow, deceased. From a decree admitting it to probate, the widow and children of deceased appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    
      Deyo, Duer & Bauerdorf, (W. A. Duer, of counsel,) for appellants.
    Chas. C. Keeler, (G. W. Stephens, of counsel,) for respondent.
   VAN BRUNT, P. J.

On the 16th of May, 1891, Alfred Bedlow died in the city of New York, leaving, him surviving, his widow and three children. He left a will bearing date the 4th day of August, 1890, whereby he appointed one Sarah A. Stilwell the sole executrix of the will, and, after giving his wife and children one dollar apiece, he left a legacy to his niece, and the residue of his property he devised and bequeathed to said Sarah A. Stilwell. The probate of the will was opposed by the widow and children of the testatrix upon the usual grounds. None of these grounds, however, seem to be insisted on upon this appeal, except that the execution of the will was procured by undue. influence; and in the discussion of this question it is necessary that the court should consider the circumstances surrounding the testator at and about the time of the execution of the will, and subsequent thereto.

It is urged that the testator was weak, and easily influenced by those who surrounded him, which fact is a circumstance, undoubtedly, to be taken into consideration with the other evidence. But the mere fact that he was weak, and easily influenced, does not, in itself, raise the presumption that such influence was exercised simply because a will such as was satisfactory to the appellants had not been made by the testator. Upon examination of the evidence in this case it does not seem to have been satisfactorily established that the testator was so unusually weak as is claimed by the appellants. It is true that several witnesses testified that he was weak and vacillating, and so impressed with those he was with that he was very apt to do as they told him. But it also appears from the evidence in respect to his relations with his family that he had, to a very large extent, a will of his own, and a pertinacity of purpose which was quite the reverse of the weak, vacillating, and easily influenced mind which the testimony of some of the witnesses would lead us to believe the testator possessed. And, while it is undoubtedly true that it is always difficult to produce testimony showing undue influence over a testator, yet the mere fact that the opportunity of exercising undue influence has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence, by no means raises a presumption that such influence was exercised.

It is assumed by the argument of the learned counsel for the appellants that because the counsel for the testator was the counsel for the beneficiary under the will, and because such counsel might be interested in the maintenance thereof, therefore there is a presumption arising which it is necessary for the beneficiary to rebut. In this he confuses the rule which pertains to contracts or gifts inter vivas, which does not apply to gifts by will. It is true that transactions inter vivas between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, naturally excite suspicion, and, when the situation is shown, then there is cast upon the party claiming the benefit or advantage the burden of relieving himself from the suspicion thus excited, and of showing that the transaction was free from undue influence, and that the other party acted without restraint, and without coercion or pressure, direct or indirect, of the party benefited. But, as already said, this rule does not apply, in all its strictness, at least, to gifts by will. And in Re Smith, 95 N. Y. 516, it was held that the mere fact that the proponent, who had benefited by the will, was the attorney of the testatrix, did not create a presumption against the validity of the legacy given by her will. But in that case, it being shown that the testatrix was a person of advanced years, and .infirm mentally and physically, and had made her attorney the principal beneficiary, and it appearing that this was contrary to previously expressed testamentary intention; that the attorney was the draughtsman of the will, and took an active part in procuring its execution; and that the testatrix acted without independent advice,—it was held that the burden was imposed upon the attorney of satisfying the court that the will -was the free, untrammeled, intelligent expression of the intention of the testator,—a situation very different from that which the proof in the case at bar discloses. It appears in the evidence in this case that on the 5th of June, 1890, a short time prior to the execution of the will in question, the testator had executed a will of a similar import; that he had been upon bad terms with his family for a considerable length of time; that attempts at reconciliation were resorted to, and contrition expressed on both sides, hut without resulting in anything except further or more complete estrangement, —a striking illustration of which is presented by the letter of the wife of the testator bearing date the 4th of August, 1890, and the reply of the testator of the 6th August, (claimed to be 1891, but which must have been 1890, as the testator died in May, 1891,) which resulted in a reference of the matter to the wdfe’s attorneys. It is true that in 1886 he executed a trust deed in which he claimed he attempted to make provision for his family. But he also endeavored to set this trust deed aside, and litigation was had, arising from the claim of improper treatment by his wife and family; and, for the purpose of explaining the reason why no provision was made for them, he expressed his sentiments in the will in question, and this was in harmony with other statements which had been made by him. It'is entirely immaterial, so far as the question as to the validity of this will is concerned, whether he was or was not mistaken in reference to the conduct of his family towards him. The validity of a testator’s will does not depend upon the correctness of the information as to his surroundings at the time of making the will. If any other rule prevailed, it certainly would open a wide field of investigation, in the case of the probate of a will, to ascertain whether the testator was correctly informed as to the conduct of every person who might think he had a claim upon the testator’s bounty. This point is strikingly illustrated by the case of Clapp v. Fullerton, 34 N. Y. 190, in which it was held that it was not sufficient, to justify the rejection of a will, that the testator, in other respects competent, entertained the mistaken idea that one of his daughters was illegitimate, if it was not the effect of insane delusion, but of slight and inadequate evidence acting upon a jealous and suspicious mind; and an examination of the facts of that case shows how far the court has gone for the purpose of upholding a will in the absence of evidence showing the exercise of undue influence. It is said:

“The right of a testator to dispose of his estate depends neither upon the justness of his prejudices nor the soundness of his reasoning. He may do what he will with his own, and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.”

But it is claimed that the decree should be reversed because of improper rulings upon the part of the surrogate in reference to the admission and exclusion of testimony. It seems to us that error was committed in permitting the evidence of Mr. Keeler, who was the attorney who drew the will, and was the counsel for the testator, in reference to personal transactions between himself and the deceased, of a professional character, other than the circumstances immediately surrounding the execution of the will, of which he was a witness. Loder v. Whelpley, 111 N. Y. 239, 18 N. E. Rep. 874. But this does not necessarily7 call for a reversal of the decree, if it be apparent, upon the whole case, irrespective of the evidence improperly admitted, that the testator was competent, and that the will was properly admitted to probate. It was held in Clapp v. Fullerton, supra, that, on appeals from the decrees of surrogates, the supreme court succeeds to the jurisdiction and authority of the old court of chancery. The review is in the nature of a rehearing in equity, and the admission of improper evidence on the original hearing furnishes no ground for a reversal of the decision, if the facts established by legal and competent testimony are plainly sufficient to uphold it. Schenck v. Dart, 22 N. Y. 420. This rule is also recognized in the case of Foote v. Beecher, 78 N. Y. 158, in which it is stated that, upon an appeal from a surrogate’s decree upon the probate of a will, the hearing is de nova, and the case may be determined upon the competent evidence appearing, disregarding such as is incompetent. Code Civil Proc-. § 2586. In Re Smith, 95 N. Y. 516, the change in the law introduced by the Code is noticed. The last clause of section 2545 of the Code declares that no decree or order of a surrogate shall be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. Be-, fore the Code, the admission of incompetent evidence was presumptively7 injurious. But the section in question seems to have changed this presumption. In the Case of Smith it is said, under this section, that when the court of review finds that incompetent evidence has been received, or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot see that, notwithstanding the error, the judgment is right, or they entertain a reasonable doubt upon the subject, then a case is presented where the party excepting is clearly prejudiced, within this section. He was deprived of the opportunity of having his case decided upon competent and material facts. Now, if we strike out all the testimony of Mr. Keeler in reference to personal transactions between himself and the testator, it in no way affects the conclusion which- must necessarily be arrived at from the evidence which properly stands. In speaking of the exclusion of the testimony of Mr. Keeler, we do not intend that the affidavit of Mr. Bedlow, sworn to on the 16th of March, 1891, was improperly admitted. That was evidence independent of testimony of any personal transactions between Keeler and the testator, as a declaration, in the form of an oath, of the feelings which the testator entertained towards his family.

It is further claimed that the exclusion of the evidence of the appellants herein, of personal transactions -with the testator, was error, because they had a right to show that the testator was mistaken in respect to their attitude towards him, and had no grounds or reason for the statements contained in his will, and that the widow and children were entirely justified in their course. But we fail to find any authority for the reception of any such evidence. Section 829 expressly provides the only cases in which a person interested in the event may be examined concerning personal transactions or communications between the witness and the deceased; and they are, so far as applicable to this case, only where the executor or administrator or person so deriving title or interest is examined in his own behalf concerning the same transaction or communication. In the case of Smith v. Christopher, 3 Hun, 585, which is referred to as an authority to support the right of these contestants to testify, all that was held was that, if a party mentioned in (as it was then) section 399 of the Code testifies to declarations of a deceased person in his own behalf, the prohibition does not apply to counter declarations offered by the adverse party. There was no evidence of any person interested in this proceeding, if we except that of the attorne}*-, (which evidence the court has already stated should not have been admitted,) showing declarations upon the part of the testator in favor of his testamentary disposition. It is true it is claimed by the appellant that Mrs. Stilwell, the mother of the chief beneficiary under the will, comes within the prohibition of the section, because of her relationship to the beneficiary. But we fail to find that the courts have by judicial decision legislated to the extent claimed. . The language of the section of the Code upon this subject certainly embraces nobody but the parties in interest, and relationship has never yet been held as a disqualification. Attention is called to the case of Potts v. Mayer, 74 N. Y. 594, as an authority in favor of the contention of the appellants. But in that case the testimony of a deceased party, taken upon a former trial, was read in evidence; and it was because such testimony was read in evidence in regard to the transaction which was under consideration that the witness was allowed to testify in respect thereto. The case of Lewis v. Merritt, 98 N. Y. 206, has no application to the case at bar. In that case the executor, bringing an action in his representative capacity, testified .to the existence of a certain state of things, "and the defendant was refused the opportunity of showing by his own testimony that such state of things did not exist; and the court held that to be error, upon the ground that the prohibition of section 829 does not extend so far as to prevent a party from testifying to extraneous facts and circumstances that a witness for the adverse party has testified to, even though he is thereby called upon to negative the existence of personal transactions and communications between himself and the deceased. In the case of Marsh v. Brown, 18 Hun, 319, which was an application by a child for his share in his father’s estate, the executor claimed to deduct a sum alleged to have been advanced to him, and to prove such advance produced an entry made by the testator in one of his books; and it was simply held that the child was entitled to testify in reference to such advancement, and to explain or deny the entry. But we nowhere find any authority for the proposition that where testamentary disposition is shown the parties interested in resisting such disposition have a right to testify themselves as to personal transactions between the testator and themselves, tending to show that the facts stated by the testator as the reason for his testamentary disposition were untrue. We do not think, therefore, that any error was committed by the court below which calls for a reversal of the decree in question, and it should be affirmed, with costs. All concur.  