
    In the Matter of the Proof of an Instrument Purporting to be the Last Will and Testament of Stephen Y. Groot, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    Will—Pkobate.
    Decedent by his will left all his property to the sister of his deceased wife, she having sustained the relation of daughter to him, and resided with him at the time of his death. The estate was not large, the will was properly executed, deceased competent to make a will, and no undue influence was shown. Deceased left no relatives nearer than nieces and nephews. Held, that the will was properly admitted to probate.
    Appeal by Helen M. Tallman from a. decree of the surrogate’s court of the county of Cayuga, admitting to probate the will of Stephen Y. G-root.
    
      Frank S. Coburn, for app'lt; S. C. Payne, for resp’t.
   Lewis, J.

Stephen Y. Groot died at the city of Auburn on. the 24th day of December,, 1891, leaving an instrument purporting to be his last will and testament, which was executed on the 20th day of October, 1890. The sole beneficiary under the will is the proponent Lilla A. Payne, and she was by the will appointed sole executrix. The instrument was, upon Mrs. Payne’s application, admitted to probate as the will of the decedent by the special and acting surrogate of Cayuga county. Its probate was contested by a niece of the decedent, Miss Helen L. Tallman of the city of Hew York. The grounds of the contest were that the alleged execution' of the will was not the decedent’s freé and unconstrained or voluntary act, but was made and executed by the intervention of force and fraud and by undue influence and by misrepresentation, deceit and mistake, and that the decedent was not of a sound and disposing mind and understanding, and that the instrument was not executed in conformity with the provisions and requirements of the statute, and was, therefore, invalid as his last will and testament. Decedent had been a resident of the city of Auburn for many years. Up till about twenty years prior to the time of his death he was engaged in the grocery business, and had by industry and economy accumulated a small amount of property consisting of two dwelling houses, in one of which he was residing at the time of bis death; the other he had rented. The balance of his estate consisted of personal property. About twenty years prior to his decease he had, because of failing health, sold out his grocery and retired from business. He was at that time extremely nervous and his nervousness increased somewhat up to the time of his death. The decedent had a wife who died in the month of October, 1890, about four days prior to the execution of the will in question. They had no children. The beneficiary, Mrs. Payne, was not an heir at law or next of kin of the decedent, but when three years of age she became a member of his family and continued as such up till the time of her marriage. Thereafter and for a short time she resided with her husband and was not a member of the decedent’s family; but shortly after her marriage she became a widow and immediately thereafter returned and remained as a member of decedent’s family until the time of his. death. The family -consisted, prior to and up to the time of" the death of Mrs. Groot, of the decedent, his wife, Mrs. Payne and her 'mother, Mrs. Fleet-wood. After the death of Mrs. Groot, Mrs. Payne and her mother managed the household affairs.

The evidence tends to show that the will was duly and properly executed. Its provisions were very simple, the entire estate being given to Mrs. Payne. It was drawn by Mr. Turner, who was a practicing lawyer in Auburn, and who after the execution of the will became the surrogate of the county of Cayuga, and he was holding that office at the time the will was admitted to probate, and for that reason the proceeding was heard by the special surrogate, B. F. Huff. Mr. Turner was present at the execution of the will, and had charge of its execution. Mr. and Mrs. ■Chamberlain were present and became witnesses to the will at the personal request of the decedent. They were his near neighbors. When they arrived Mr. Turner had about finished drawing the will, and when he had completed it he read the attestation clause in the presence of the decedent and the witnesses, and the decedent then signed it and declared in their presence that it was his last will, and at his request they became subscribing witnesses thereto. While the contents of the will were not at the time of its execution disclosed to the witnesses, it is apparent from the= evidence that the decedent was aware of its provisions. The evidence tended to show that the decedent was all through his lifetime an exceedingly nervous man, and, in some respects, peculiar. His peculiarities and eccentricities became somewhat exaggerated in the latter part of his life; the evidence tends to show that his. eccentricities existed during the time he was engaged in business. He was very diligent in business, exceedingly particular, especially in small things about the store. He became somewhat addicted, during the latter years of his life, to the use of stimulants to such a degree ns to sometimes become intoxicated. But we think the-surrogate’s finding that the decedent was of a sound and disposing mind when he executed the will is fully sustained and warranted by the evidence.

The case is quite barren of evidence tending to sustain the allegation of undue influence. The evidence tends to show that Mrs. Payne, her mother and the deceased resided in the same-house as members of one family and upon terms of great friendship; the decedent frequently spoke of them in terms of affection and esteem. The case is barren of evidence showing any acts-on the part of Mrs. Payne or her mother to influence the decedent to make the will. The heirs at law and next of kin of the deceased consisted of eleven nieces and nephews. His relations with them, while not unfriendly, were not shown to have been of a very intimate character. Mrs. Payne had sustained the relation of a daughter to the deceased. She was a sister of the deceased’s wife. A few years prior to the making of the will in question he-had executed a will devising and bequeathing all of his property to his wife. Four days after her death he executed the will in-question, and the evidence failed to raise a reasonable presumption that its execution was brought about by any undue influence brought to bear upon him by any one. The disposition he made of his property under all the circumstances appears to be natural and proper. The estate was not large, consisting, as stated, of the dwelling houses and a small amount of personal property, the income from which was barely sufficient by economy and frugality to support his family; and he naturally under the circumstances concluded that the proper disposition to make of his estate was to devote it to the support of Mrs. Payne and her mother. We find nothing in the record justifying a reversal of the decree appealed from. It should be affirmed, with coste against the appellant.

Haight and Bradley, JJ., concur.  