
    In the Matter of the Probate of the Will of Adeline D. Bernsee, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Will—Probate—Failure to produce corroborating witness.
    Where the attesting witnesses to a will contradict each other as to the formalities of execution, a failure on the part of the proponents to call one of their number who was present at the time to corroborate their witness discredits such witness and strengthens the presumption that the testimony of the other witness is true.
    2. Same—Undue influence.
    Testatrix had made a former will by which she left her property to her two sons and two daughters. The will in question was made while she was living with her sons, during which time she refused to see her daughters, and by it she gave the property to her sons, and made declarations as to unfilial conduct of the daughters, which were shown to be unfounded. At the time of making the will she was nervous and excited. Held, that these facts were sufficient to show the existence of undue influence.
    (Barnard, P. J., dissents.)
    
      Appeal from decree of the surrogate of Kings county, admitting will to probate.
    
      William G. De Witt, for app’lts; William B: Syme and Daniel Daly, for resp’t.
   Pratt, J.

It is plain that these contestants cannot be deprived of their rights in the property of which Adeline D. Bern-see died seized, unless the will under consideration is in law valid.

The first question is whether a due execution was sufficiently ' proven.

The subscribing witnesses only were called upon this branch of the case, one George H. Black, a brother-in-law of one of the two beneficiaries under the will, the other Dr. Bellows, who had previously prescribed for the testatrix and attended the family of one of the two beneficiaries, and also the husband of one of the daughters of the testatrix, who was positively cut off from any share in her property.

The will was witnessed in the office of Dr. Bellows, to which testatrix, Mr. Black and Christian D. Bernsee, son óf testatrix, went together from the house of Mr. Bernsee, at which testatrix was residing at the time.

Mr. Black testified positively that testatrix told Dr. Bellows that she came there to have him witness her signature to the will which she took out of her satchel; that she signed it at the doctor’s desk, and said: “ I declare this to be my last will and testament,” and then signed it; that she requested him to sign the will as a witness, which he did; that she requested the doctor to witness the will, which he did; that both he and the doctor stood side by side looking over the shoulder of the testatrix at the paper when she signed the will.

This testimony clearly proved all of the statutory requisites for a due execution of a will.

But this witness testified with equal positiveness that Christian D. Bernsee during all of this time sat in a chair in the same room; that he did not at any time say one word about the purpose for which they came there or to the doctor about his witnessing the will. _ _ '

_ _ Dr. Bellows testified equally positively that Christian D. Bernsee produced the will; that he told him that they had come there for the purpose of having him witness his mother’s will; that he asked him (the doctor) to sign his name twice, saying that it was all right to do so; that the clause attested (meaning the attestate clause) was a regular attachment; that he took the will to the doctor’s desk, and he signed it then; that he did not read the attestate clause ; that the testatrix sat at the time in her seat in his office; that he did not see any signature of testatrix on the paper; that her name was not on the paper when he signed his name; that testatrix said nothing to him ; that she did not, according to his recollection, leave the rocking chair where she sat while in his office; that she was extremely nervous and excitable; said that she was nervous; that she did not ask him to sign the will and that her son did; positively that he did not look over her shoulder, but over Mr. Black’s shoulder; that he has no recollection of seeing her sign the will or getting out of her chair.

This testimony, contradictory in almost every particular of Mr. Black’s, if truej clearly proves that the will was not duly executed. Under these circumstances, the proponents of the will were plainly called upon to corroborate the testimony of. Mr. Black by other testimony, if within their reach. Christian D. Bernsee was credibly present during all of the interview at Dr. Bellows’ office; he was a competent witness to disprove, if he ■could, the testimony of Dr. Bellows as to his producing the will; as to his declaring the purpose for which they went there; as to his request to Dr. Bellows to witness the will; to sign in two places; as to seeing him looking over the shoulder of testatrix while she sat at his desk.

These were in no sense prohibited by § 829 of the Code of Civil Procedure. And it is doubtless correct to say that he was a competent witness to testify as to testatrix declaring to the subscribing witnesses that it was her will, and that she went to the desk and signed it. Pinney v. Orth, 88 N. Y., 447; Simmons v. Havens, 101 id., 428; Petrie v. Petrie, 25 St. Rep., 309.

This witness was not even offered as such by proponents; non constat, if he had been, the contestants would not have objected but trusted to their opportunity to develop a case of undue influence.

The failure to call this witness by proponents to corroborate Mr. Black in reality strengthens the presumption that Dr. Bellows’ testimony was true; for it must be remembered that Mr. Black was asked in his cross-examination whether Christian D. Bernsee said anything more on that occasion than to introduce him to the doctor; he said, “Nothing more.”

“ Q. You will swear to that positively ? A. Yes, sir.

“You are just as certain of that as of anything else that you. have testified to? A. I am positive of it; I will swear to it.”

If, therefore, Mr. Bernsee was competent to corroborate Mr. Black in this matter, upon which he was flatly and positively contradicted by Dr. Bellows, and he clearly was, his not being called leaves no reasonable doubt of the truth of Dr. Bellows’ testimony, and if so, Mr. Black is to be discredited upon this point, and as he is equally positive in this as in his other statements,, lie ought to be discredited in what he. says about the signing o£ the will by testatrix, without which the execution of the will was not proved

2(1. Was the will framed by undue influence?

While this fa°ct is to be proved, not presumed, the undisputed, facts tend strongly to the conclusion that such was the case.

A prior will which divided the property equally between the children of testatrix, two sons and two daughters ; uninterrupted affectionate relations between testatrix and at least one of the daughters ; her residence with the sons at the time of the making of the will; her refusal, or, at least, neglect to see either daughter .after she took up her residence with the sons; the refusal of the daughters to recognise the alleged wife of one of the sons as not married to him; the declaration in the will of unfilial conduct of the daughters against the uncontradicted proof; the failure to call the draughtsman of the will; the presence of the son at the time-of the execution, when, if Mr. Black is to be believed, he had nothing to do and did nothing; her nervous and very excited condition at the time, which is not disputed; her entire disinheritance-of her daughters and the giving of her entire estate to her sons, with whom she lived, all unexplained tend powerfully to show undue influence.

These circumstances called strongly upon the surrogate for the-exercise of his discretion in calling for the draughtsman of the-will to ascertain who prompted it and the conditions surrounding its preparation.

Upon the facts, therefore, the judgment should be reversed. There were several rulings of the surrogate in the rejection and striking out of testimony which appear to have been erroneous,, but which it is unnecessary to consider.

Decree reversed

Dykman, J., concurs; Barnard, P. J., dissents.  