
    Sarah S. Primmer and Others, Appellants, v. Clara E. Primmer, Individually and as Executrix, etc., of John D. Primmer, Deceased, Respondent.
    
      (Supreme Court, Appellate Division, Third Department,
    
    
      March 3, 1915.)
    Will—Execution—Instrument Must be Read to Blind Testator— Statutory Action to Test Validity of Probate—Evidence—Burden of Proof.
    On a proceeding to probate a will the proponent must satisfy the surrogate that it was executed with all the formalities required by law and, if the testator was blind, he must show that he was made aware of the full contents of the paper he was executing. This rule, however, refers to the probate of a will by the surrogate.
    Where an action is .brought under section 2653a of the Code of Civil Procedure to test the validity of such probate, the decree of the surrogate admitting the will to probate is declared by the statute to be prima facie evidence of due execution and of the validity of the will. Hence, the burden is shifted to the plaintiff in sueli action to show lack of due execution and validity, and where he claimed that the testator was blind and that the instrument was not read to him, he is under the burden of showing such facts. The proponent-defendant is not under the burden of showing that the will was in fact read over to the testator.
    Appeal by the plaintiffs, Sarah S. Primmer and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Otsego on the 15th day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1914, denying the plaintiffs’ motion for a new trial made upon the minutes.
    Pierce H. Russell, for the appellants.
    Gibbs, Holmes, Waterman & Holmes (Clarence E. Holmes of counsel), for the respondent.
   Woodward, J.—

John D. Primmer died at the city of Oneonta in March, 1912, leaving a last will and'testatment. The will was dated July 19, 1899, and subsequently and on the 17th day of March, 1911, nearly one year before his death, the decedent made and executed a codicil to such last will and testament. Both of these papers were duly probated by the surrogate of Otsego county, and this action was brought under the provisions of section 2653a of the Code of Civil Procedure to test the validity of such probate.1 The case was tried and submitted to the jury upon the single question of the testamentary capacity of the decedent at the time of executing the codicil to the will, the learned court having held that there was no evidence to support the allegations of undue influence, fraud, etc., alleged in the complaint. The jury found in favor of the defendant, sustaining the codicil, and appeal comes to this court.

There can he no question that there was evidence to support the contention of the defendant. The change made in the will was not an unnatural one; it merely changed, so far as the effect of the will is concerned, the disposition of a single piece of real estate, which was given in fee to testator’s daughter, who lived at home with him, in the place of a life use as fixed in the original will. This daughter had remained unmarried and attended to the household duties of the father, and it is entirely natural and proper that he should, after years of such service, conclude that she was entitled to the fee rather than to a mere life use, and especially so as there appears no good reason why the other children should he preferred. There was some evidence that the testator, who was eighty-two years of age at the time of making the codicil, was then in the early stages of senile dementia, but there was likewise evidence fairly tending to show that he fully comprehended what he was doing, and the verdict of the jury ought not to be disturbed in the absence of error in the conduct of the case.

The only question necessary to consider is the charge of the court, it being urged on the part of the plaintiffs that there was error in refusing to charge the plaintiffs’ request as to the burden of proof. The court had charged the jury that there was but one issue to be determined and that was the testamentary capacity of the testator on the 17th day of March, 1911. Ro exception was taken to the charge as made; there was no suggestion that there was any other issue to be submitted, except that counsel for plaintiffs, after the close of the charge, asked the court to charge “ that if the jury believe John D. Primmer could not see to read on the 17th of March, at the time of the execution of the alleged codicil, that it was incumbent upon the .proponents or defendants in this case to show that the paper was read over or was made known to him before he executed it.” The court asked if there was any evidence tending fo show that he could not read, and counsel responded that there was ■ evidence that he could not see, and the court responded, “ If there is such evidence I will charge that.” Counsel then continued and requested the court to charge “ that there is no evidence in the case to show that this was done, and that as matter of law if they believe it was not done, then the codicil cannot be sustained.” The court said: “ There is no evidence in the case to show it was not done,” and counsel responded: “ Tes, sir; if they believe he could not see ánd the contents of the will was not made known to him at the time of the execution, then as matter of law the codicil cannot be sustained.” The court admitted that this was true as an abstract proposition, but added, “ there is no evidence in the case tending to show that it was not done. I think the presumption is that [it] was done by the attorney who drew it.” Ro exception was taken at this point, and counsed continued: “Also to charge that it was incumbent upon the proponents to show that the testator knew what the paper was he was signing and what it contained.” The court responded that if “ he was blind it would have to be read to him; that is the rule. You are right about the rule, but there is no evidence in the case" showing or tending to show it was not done.” Eo exception was taken here, and counsel continued: “ To charge that the burden was upon the other side to do that; they seek to sustain the will.” The court responded: “ Eo, the burden is upon you to show it was not done,” and to this the plaintiffs took an exception.

The plaintiffs had acquiesced in the charge of the court limiting the submission to the testamentary capacity of the-testator, and this exception relates wholly to a detail in the execution of the will, going to ■ the question of fraud in its inception. Whether it is important to consider the question of the burden of proof as to an issue not submitted to the jury, it may not be worth'"while to determine now. There can be no doubt that the proponent of a will must sátisfy the surrogate, as a condition of probate, that the same was executed with all the formalities required by law, and that if the testator was blind, it would be necessary to1 show that he was made aware of the full contents of the paper which he was executing, but these rules relate to the probate of the will hy the surrogate. Section 2653a of the Code of Civil Procedure gives contestants an opportunity for a new trial of the issues, but it is provided that on the trial of such issue the decree of the surrogate admitting the will or ■ codicil to probate shall be prima, facie evidence of the due attestation, execution and validity of such will or codicil.” “ Due attestation, execution and validity ” means lawful attestation, execution and validity; the decree of the surrogate, unless overcome by evidence, stands. The burden of proof is, therefore, upon the party asserting that such codicil is not duly attested, executed, etc.; he is bound to produce evidence tending to show lack of “ due attestation, execution and validity,” and in the absence of such evidence there is no issue presented. There has been one adjudication upon the question of due execution; ordinarily that would be conclusive in the absence of an appeal, but section 2653a has provided a further opportunity for trying the issues before a jury, but it has made it a condition of such an action that the plaintiff must take upon himself the burden of showing that the original adjudication was wrong, and if there was any question as to the due execution of this will, it, was for the plaintiffs to show the facts; the defendant, standing upon the original adjudication, was not bound to go over this ground again unless the facts on which the adjudication was made were challenged. The difficulty with the plaintiffs’ position is that there is an effort to apply rules governing the original probate proceeding to a special statutory privilege, where the Legislature has established different rules; and the proposition is elementary that where the Legislature has granted a privilege, subject to conditions, the privilege cannot be accepted and the conditions be rejected. (Matter of Board of Water Supply, 211 N. Y. 114, 183.)

The rule of law governing this case was correctly stated by the court, and the judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  