
    Charles P. Evans, Respondent, v. Robert Trimble, Individually and as Executor, etc., of Elizabeth T. Evans, Appellant, Impleaded with Margaret J. Trimble and Others, Defendants.
    
      (Supreme Court, Appellate Division, Third Department,
    
    
      September 15, 1915.)
    Will—Execution—Will causing intestacy as to personal property— Failure to bead instrument to testatrix—Will beneficial to attorney who drew it—Presumption of fraud.
    Appeal front a judgment determining that a will admitted to probate was not the will of the testatrix because of the execution by her of a later will. In her first will the testatrix gave to her husband the life use of her realty and household furniture, the remainder to go to her brothers and sisters or their descendants. It was shown, that the testatrix had expressed a desire to change her will because of some dissatisfaction on the part of a relative and that, she being in a critical condition and under the influence of opiates, her husband, a lawyer, drew a second will which she signed without having had the same read over to her. The second instrument disposed of the realty only, leaving her intestate as to her personal property, including $5,000 in, the hank,, which will go to her husband under the statutes of distribution. On all the evidence, held, that the husband failed to rebut the presumption1 of fraud arising from the fact that, being an attorney at law, the will was favorable to .him, and that the second instrument was not the will of the testatrix and not entitled to probate.
    Woodward, J., dissented, with opinion.
    Appeal by the defendant, Robert Trimble, individually and as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany, on the 15th day of January, 1915, upon the decision of the court, both sides having moved for the direction -of a verdict at the close of the case, and also from an order ■entered in said clerk’s office on the same day, upon which order the said judgment was entered.
    The judgment determined that a paper dated June 17, 1910, ■•admitted to probate as the will of Elizabeth T. Evans, deceased, is not the will of said decedent, because of the execution of a later will dated March 19, 1.912.
    R. H. Gillet (P. 0. Dugan of counsel), for the appellant.
    Willis E. Heaton (Alvin E. Mambert of counsel), for the respondent.
   Kellogg, J.

’The chief beneficiary prepared the will and caused its execution. The witnesses saw it signed, but the contents were not made known to them or to the testatrix at the time. Ho one hut the husband knows whether or not she understood its contents and effect. He is a lawyer. June 17, 1910, she made her will in which she only gave him the use of the house and furniture during his life, and' at his death it went to her brothers and the descendants of a deceased brother. The real estate was worth about $2,350, and she had $5,000 cash in the hank. The principal part of the money came from her deceased brother; the real estate from her mother. She was fifty-eight- years of age and had been married to her husband for ten years; part of the time they had lived separate from each other. She was taken suddenly sick, was in a great deal of pain and was put under the effect- of opiates. She had told one of the witnesses seme time before that she desired to make some changes in her will; that her brother’s son was not satisfied; that she had received a letter from him and that she would1 fix it so that he would be satisfied. This is the only evidence, aside from the will itself, of any intent upon her part to change her will. The will of March 19, 1912, now in question, directed the executor to sell the house and furniture, gave one-quarter of the proceeds to the husband, one-quarter to her brother James, one-quarter to her brother Robert and one-eighth each to John and Sarah, the son and daughter of a deceased brother. By the first will her residuary estate was to go equally to her brothers and John 'and Sarah, the children of her deceased-brother Wiliam, after the payment of some small legacies. The brother Robert is- made the executor of both wills. The principal difference between the first will and the second is that there is no residuary clause in the second will and it expressly revokes the former will, and, there being no children, she dies intestate as to her personal property, and under the law he takes it as surviving husband. The circumstances require explanation. Clearly the second will is not as favorable to her nephew, for who-m she claimed she was making the change, as the former will. If the second will had directly given the personal property to the husband, and there was a reasonable probability that she knew its contents, the situation might be different. The testatrix was in a critical condition, and might easily have been imposed upon. The husband gets the personal property by a construction of law placed upon the second will, which the testatrix could not understand. If by it he intended to get the personal property it called for an explanation to the testatrix, and he should satisfy the court that she knew the effect of the will. The will is the act of the husband, a lawyer, who has made himself the chief beneficiary of his wife, when the former will, and this will, so far as the language goes, indicates that she did not have that intention. If she intended to make him the chief beneficiary of the will we would expect the will to say so, and would expect that he would be made the executor. We would not expect it to be done by indirection, and in a manner which only a lawyer could understand. If this will had been read to the testatrix and the witnesses they would not have been able to- understand that by it the husband was getting substantially all of the personal property and was the chief beneficiary; they naturally would have understood that he was only benefited to the extent of a quarter interest in the real estate. Clearly, if she intended to give the money to her husband, she would not have framed the will in the manner in which it appears, and there would be no good reason why he should have it framed in that way. The circumstances of this will show clearly the wisdom of the rule that when a lawyer writes himself as chief beneficiary in a will he must establish that the ■will is not his will but the will of the testator.

We conclude, therefore, that the paper of March 19, 1912, is not the will of the testatrix, but was am instrument which the husband imposed upon her, and which she did not understand. It was his will, and not her will.

I favor a reversal of the judgment and order, upon the law and the facts, with costs, and a dismissal of the complaint, with costs.

All concurred,' except Woodward, J., dissenting, in opinion.

Woodward, J". (dissenting).

If section 2653a of the Code of Civil Procedure is to have any intelligent and practical operation, there can be no question that this action was- properly brought after the adjudication of the Surrogate’s Court, and the affirmance of the decree on the part of this court. (158 App. Div. 894.) The purpose of the statute was to permit interested parties to have a new trial of the issues before a jury, and it was competent for the parties to waive a jury and permit the court to determine the facts.

The learned trial court, in an opinion (88 Misc. Rep. 667), has reviewed the facts -in this case, and we are persuaded that the appellant has failed to show a case demanding a reversal of the judgment. The will of 1910, previously admitted to probate, was revoked by the subsequent will of 1912, and no question is here presented but that this latter will was executed with all of the formalities required by law. It is urged, however, that the fact that the will was drawn by the plaintiff, who appears to have been a lawyer, 'and' that it results in some advantage to himself, brings it within the rule laid down in Matter of Smith (95 N. Y. 516) and calls upon the plaintiff to establish affirmatively that the will was not the result of fraud or undue influence. But the rule as recognized in Matter of Smith does not go to the extent urged by the defendant, for it was said that the “ rule to which we have adverted seems, however, to be confined to cases of contracts or gifts inter vivos, and does not apply in all its strictness at least, to gifts by will. 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.” In the present case, while there is a suggestion that the plaintiff was a lawyer, it also appears that he was the husband) of the testatrix, living with her at the time of the execution of the will. It appears likewise that he drew the will of 1910, and that he was beneficiary under that will, and that the testatrix had previous to the execution of the will of 1912 invited two of her neighbors in to witness the execution of a will which was to change the former one. No evidence whatever appears in the case which could justify the conclusion that the testatrix was under any pressure at the time the will was executed, and. unless this husband, acting to all appearances in a natural manner, is obliged to rebut a presumption of fraud from the mere fact that he was an attorney, there is no foundation for this appeal. We think there is no such burden imposed upon him by law;' that fraud must be proved against him before he can be deprived of his rights. The mere fact of a man being an attorney does not outlaw him; he may still become the beneficiary of his wife’s will, or of her failure to dispose of all of her property by a will, and, while the court would not fail to look into suspicious circumstances', and perhaps to hold a lawyer to a higher accountability than a layman under the same circumstances, we think in the case at bar the court has properly considered the facts, and that the conclusion is one justified by the record.

The opinion of the trial court makes it unnecessary to' go further into the details of this case.

The judgment should be affirmed, with costs.

Judgment and1 order reversed on law and facts, with costs, and the complaint dismissed, with costs. The court disapproves of the fourth, fifth and seventh findings of fact and the first and second conclusions of law, and finds that the will of June 17, 1910, was the last will and testament of the testatrix and that the paper dated March 19, 1912, was not her last will and testament, and that the execution of said last paper was obtained by the husband, the party chiefly to be benefited thereby, by fraud practiced by him upon her and was not her free and ' voluntary act.  