
    (80 Hun, 315.)
    In re JOURNEAY’S WILL.
    (Supreme Court, General Term, Second Department.
    July 27, 1894.)
    Wills—Undue Influence.
    Solicitation and importunity do not constitute undue influence unless car ried so far as to prevent free exercise of testator’s volition.
    Appeal from surrogate’s court, Richmond county.
    Proceeding for the probate of the will of Henderson Journeay, deceased. The will was admitted to probate, and Abigail Journeay, testator’s widow, and Susan Sprague, his daughter, appeal. Modified.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Louis S. Phillips, for appellants.
    Calvin D. Van Name (Sidney F. Rawson, of counsel), for respondent Mary L. Engelbrecht.
    George J. Greenfield, for the executor.
   DYKMAN, J.

This is an appeal from the decree of the surrogate of Richmond county admitting to probate the last will and testament and codicil of Henderson Journeay, deceased. There were no objections filed against the will, and the contest arose over the codicil alone. The will was dated November 15, 1887, and the codicil bears date September 17, 1891. Both instruments were executed after the testator became blind, and he died in December, 1891, in the eighty-third year of his life. The objections against the codicil were that its execution was not the unconstrained act of the testator; that the same was not subscribed and published according to the statute; that the testator was not at that time of sound mind. The testimony on the part of the contestants was directed to the question of undue influence, but it fell far short of proving the destruction of free agency. Unless solicitation and importunity are carried so far as to prevent the free exercise of volition, they do not constitute coercion, or what the law terms undue influence. The proof of the straw 1 relations between the testator and some of the members of his family have but slight weight or influence in the case. The testator was an old man, and quite feeble, both in body and mind, but he was not imbecile, and the whole testimony shows him in the possession of his faculties down to the very last day of his life. We think the testimony was sufficient to justify the decree admitting the will and the codicil to probate, and we find no legal errors. We cannot, however, concur with the surrogate upon the question of costs. While there is always ill feeling, and perhaps improper motives, attending a controversy over a will, yet we cannot discover sufficient reason for charging the contestants with costs, and we think the decree should be so modified as to make the costs payable out of the estate, and, as so modified, affirmed. All concur.  