
    In the Matter of the Application for Probate of the Will of Magdalena Brommer, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Will—Probate.
    Probate will not be refused, where the testatrix was a fairly intelligent person and gave instructions intelligently^ to her counsel, who read the will to her, explaining each clause, and receiving intelligent and consistent answers from her, though it appears that she was somewhat deaf and not very familiar with the English language.
    Appeal from a decree admitting the will to probate.
    
      Miller & Miller (Jacob F. Miller, of counsel), for app’lts; George F. Martens, for resp’ts John Brommer and Frederick Brommer, Thomas J. Farrell, for resp't Helena Hoffman; Henry D. Van Or-den, for resp’ts Rebecca Ridderhoff and others.
   Pratt, J.

I have been much entertained with the ingenious and admirable presentation of this case by the appellant, but, upon careful reflection, it seems to me that the reason assigned by the learned surrogate for his conclusion to admit this will to probate are entirely satisfactory. The will is dated and was executed May 8, 1879,—18 years before the death of the testatrix. The proofs show that the draughtsman had been counsel for the husband of the testatrix, and drew his will. He bad been counsel for her husband’s executors. His professional relations with the family had been continued. It was therefore natural that she should send for this lawyer when she determined to make a will herself. True, he had not seen much of testatrix, herself, after her husband's death; but there is no evidence that she bad any occasion to confer with counsel in the mean time, or that she ever saw any other counsel for any purpose. It is therefore apparent that no inference of fraud or undue influence should be drawn from the fact that this lawyer was selected. The choice of counsel seems to have been her own. She evidently'determined for herself to make a will When the counsel came to her, she stated the business on hand herself, and gave her own instructions to him. After receiving the same, he made an appointment to call at her house to execute the document, and instructed her that she must provide witnesses for that purpose. When the draughtsman came with the draught, he found that two witnesses were present, evidently chosen and invited by her. It does not appear that she personally requested the attendance of the two witnesses, but one of them (Mr. Bremer) testified that when he arrived the testatrix herself told him “to come as a witness.” The other witness (Mr. Ring, since deceased) was present when Mr. Bremen arrived. He was about 62 years of age, and was in good health. Mr. Bremer had formerly lived in the family with testatrix and her husband, and had been a clerk for her husband in his grocery business. After the paper was executed, it was delivered to the draughtman, who took and kept it for her. She subsequently spoke to others of the fact that she had made a will, evidently referring to this occasion and this paper. It is therefore plain that she began and carried out this business understandingly,—so far at least, as the matter of making a testamentary disposition of her property was concerned, and selecting natural agencies to carry out her purposes. It also appears that the will was executed with all due formality. She thereafter lived for some thirteen years, conscious of the fact that she had made a will; and none of the contestants seem, to have raised any question of her capacity,' although some of them knew that she had made a will.

The next question relates to her' knowledge of the contents of the document. On this point there was rather more than the ordinary amount of proof. The paper was read over to her by the draughtsman, who was one of the witnesses, in the presence of the other two witnesses, whom she had herself selected for that purpose,—Mr. Bremer and Mr. Eing. There is not the slightest suggestion that the document was not fully and fairly read to her. Indeed no-motive is suggested for any fraud or imposition in this respect. The only suggestion of want of knowledge of its provisions on her part is predicated in the allegations—First, that she did not understand the English language; and, secondly, that she was too deaf to understand what was read to her, even if she had been able to understand the language. On the first point,—tier alleged ignorance of the language,—there certainly was evidence that she 'spoke English, and understood the speech of others when they spoke English. True, there were some suggestions in the evidence to the contrary ; but it is sufficient to say that there was fair conflict of evidence on this point, and therefore the finding of the learned surrogate ought hot to be disturbed. The second point is met by a like condition in the proof. There certainly was - evidence that, while this testatrix was hard of hearing, she nevertheless could hear what was said to her when people spoke with their lips from six to twelve inches from her ears, and in fairly loud tones. One witness, as the result of considerable experience with -her, testified that when she spoke in ordinary tones, near to her ears, she seemed to understand better than when she spoke loudly. She attended to her ordinary duties about the time of the execution of this paper, receiving communications in that way in relation to everyday affairs of life; answering and otherwise acting intelligently. Mr. Martens, the draughtsman of the will, and Mr. Bremer, the survivor of the two witnesses invited by the testatrix, each testified that the former read over the will, clause by clause,- pausing occasionally to make explanations, as he read; that he spoke loudly, with his lips within about 12 inches of her ears ; and that her answers were intelligent and consistent. There wasjherefore sufficient evidence to sustain the findings of the learned surrogate that she heard the contents of the will read, and understood the explanations, and there certainly was no such weighty mass of evidence to the contrary as to justify us in overuling his conclusions on this questioh of fact.

We thus reduce this case to the simple question whether or not this paper attests such an unnatural disposition of property as, of itself, to indicate undue influence from somebody. It seems to me that this question is pretty much answered by what lias been already said. This lady was a fairly intelligent person, who knew what she was about; who intelligently gave her own instructions to counsel of her own selection, and there is no question but that they were fairly expressed in this document. It is of no moment that counsel could not, as a mere act of memory, recall the details or substance of thó conversation in which the instructions were given, independently of the will itself. That was not remarkable, after the lapse of 13 to 15 years. Indeed, it would have been more remarkable if he had undertaken to detail such conversations after such a lapse of time. He was intrusted with the custody of the document for safe-keeping, and hence there was a special occasion why he should have preserved his memorandum of the original instructions. Under these circumstances, the paper attests her will; and neither courts nor individuals have a right to speculate upon the reasons why she chose this or rejected that relative as an object of her bounty. Taking the whole case together, I think the evidence showed that this lady possessed fair testamentary capacity ; that she clearly understood the contents of the instrument, and freely executed it. Under these circumstances we ought not to interfere. The decree of the surrogate should therefore be affirmed, with cost of the appeal against the adult contestants but not against the infants.  