
    In the Matter of the Revocation of Probate of the Last Will and Testament of Julia Murphy, Deceased. Rosa F. King, Individually, and as Executor, etc., of Julia Murphy, Deceased, and Joseph Clark and Nellie Clark, by William H. Shaffer, their Special Guardian, Appellants; Ellen Clark, Respondent.
    
      Will — test of testamentary capacity — undue influence must be established affirmatively.
    
    Eccentricities, perversity of temperament, peculiarities in daily life and the enfeeblement of old age are not in themselves sufficient evidence of incapacity to overthrow the will of a testatrix.
    The test of testamentary capacity is whether the testatrix appreciated the amount and condition of her property and the claims of those who were the objects of her bounty, and whether she understood the provisions by which her property was to pass.
    Undue influence must he established affirmatively, and its existence will not be inferred from the mere presence of opportunities for its exercise.
    
      Appeal by Rosa F. King, individually and as executor, etc., of Julia Murphy, deceased, and Joseph Clark and Nellie Clark, by William H. Shaffer, their special guardian, from a decree of the. Surrogate’s Court of Monroe county, entered in said Surrogate’s, Court on the 20th day of January, 1899, revoking the probate of a. paper propounded as the last will and testament of Julia Murphy,, deceased.
    The will was executed September 14, 1897. Decedent died July 14, 1898. The will was admitted as a will of personal estate July 18, 1898, the next of kin waiving.the issuance of citation and assenting to the making and entry of the decree of probate proceedings. The next of kin subsequently applied for a revocation thereof. A trial was had; and,-on the 20th day of January, 1899, a decree of the Surrogate’s Court was entered revoking the same and annulling the letters testamentary issued upon the admission of the will.
    The testatrix was an unmarried woman, upwards of seventy years of age, and her sister was her only next of kin. By her will she bequeathed $500 each to two grandchildren of this sister, $200 for her burial expenses and a monument, $100 “ for masses for the repose of my soul,” and all the residue to Mrs. Rosa F. King, subject to the payment of $200 for the burial expenses of her said sister, in case the latter did not leave means adequate for that purpose. The residuary legatee was also named as sole executrix.
    The amount of property left by Miss Murphy was $4,300.54, all cash.
    
      John Van Voorhis, for the appellant King.
    
      William H. Shaffer, special guardian, appenant.
    
      Richard E. White, for the respondent.
   Spring, J.:

The testatrix was an old lady, but, except for a lameness caused by an accident, was in good physical strength until long after the execution of the will revoked. She was born in Ireland, was illiterate, was thrifty and penurious, and in the management of her property up to the time of her death there was no abatement of this economy and good judgment. She was eccentric, of violent temper, slatternly in her household duties and in her dress, but these pecuParities existed in her Pfe as far back as the witnesses go. The facts narrated warrant no finding of mental unsoundness adequate to overturn her will.

Mr. Husbands, the secretary of the Rochester Savings Bank, testified he had been the administrator of the estate of Miss Murphy’s sister Margaret, and, in the conduct of the estate, he became acquainted with the decedent; that upon a settlement of his account he had deposited the funds in the Monroe County Savings Bank for the distributees, and that as the testatrix, six months after, came with Mrs. Clark, another sister, to withdraw the money, they were told they must be identified, and Mr. Husbands was called in for that purpose. What identification signified was Greek to those ignorant old women, little used to the routine of banks. The circumstance which undoubtedly startled them -was that, upon presentation of their checks, they could not immediately get their money. They evinced their excitement and displeasure in loud, boisterous talk, but when Mr. Husbands explained the situation they calmed down. The banker, however, says those acts were, to his mind, 'irrational. They might have been had the testatrix been, in her past Pfe, a, methodical woman and way-wise in business, but the fright was to-be expected of women in their sphere of Pfe, and ebullitions of temper were usual with them. Other witnesses testify that the old lady was pestered by the street gamins, who rejoiced in exasperating her; that she chased them, swore, and threw stones at them. These acts show lack of refinement, but she was not a cultured woman. One of the witnesses, a notary, went with an attorney to take her acknowledgment to a waiver of a citation, and the old lady asked the attorney if he had brought her a husband, but she seems to have executed and acknowledged the execution of the papers presented, and the gentlemen evidently regarded her as in the possession of sufficient mental strength to do these acts satisfactorily to them. She drove callers and boys delivering groceries and other articles, from the house; she was uncivil and profane in her speech; she often talked and muttered to herself, and, in her old country fashion, kept her chickens in the house, and on one or two occasions was-intoxicated. These and other similar acts were detailed by the witnesses, indicating she was violent and intemperate in speech and conduct, but she was not an imbecile, and there was no lack of testamentary capacity justifying the revocation of her will. Assuming all the stories recounted in opposition to her will to be true, they show nothing more than idiosyncrasies of disposition, in no way reflecting upon her ability to manage her property and to make a proper will.

Dr. Benford, her physician for years, and other acquaintances, are explicit in their statement of acts showing she was in full possession of her faculties. There is no evidence tending to show she ■did not husband and guard her property well; that she did not understand its management in her latter life as well as at any time.

The law of wills is made for all classes of people, and those in ■every condition of life. A person of limited education, who, by ■dint of close saving, has acquired a small property, should, of all people, be unrestrained in his right to dispose by will of his little accumulations. Perversities of temperament, quirks in daily life and even the enfeeblement of old age are not to be invoked to overthrow the will of a testator. Courts properly scrutinize very carefully any endeavor to interfere with the right of disposition by will. The test in considering the mental fitness of a person executing a will is, did she appreciate the amount and condition of her property and the claims of those who were the objects of her bounty and understand the provisions by which her property is to pass ? (Matter of Snelling, 136 N. Y. 515 ; Horn v. Pullman, 72 id. 269; Matter of Folts, 71 Hun, 492.)

There is nothing in the life of this shrewd, rugged old woman, with her parsimonious clinging to her property and with her whims •and filth, which, under this standard, fails to show full testamentary ■capacity.

2. The proof as to the exercise of undue influence rests wholly upon inference. The chief beneficiary, Mrs. King, had long been a friend of testatrix ; she had cared for her in sickness, and evidently was closer to her than any of her own kindred, except the sister Ellen. The latter had one son, a profligate, with whom Miss Murphy was not on friendly terms, and the widowed sister had been the recipient of $2,000, upon the death of their sister Margaret. Mrs. King made the engagement with the attorney who prepared the will •■and was present at the time it was drawn and executed, and these are the only circumstances upon which a suggestion of impropriety can be hinged. The will was prepared by a respectable lawyer. Great care was exercised in its drawing; and the subscribing witnesses are not only explicit in testifying she possessed testamentary capacity, but their narration of the transaction shows the old lady was clear and positive in her wishes as to the disposition of her property. Undue influence must be established affirmatively by circumstances, by acts, and in such a way that the court can see clearly that the will of another has overborne that of a testator. Mere opportunity will not suffice. (Thomas Law of Estates Created by Will, 1191 et seq.; Cudney v. Cudney, 68 N. Y. 143; Matter of Shannon, 11 App. Div. 581; Matter of Snelling, 136 N. Y. 515 ; Matter of Rohe, 22 Misc. Rep. 415.)

The will itself is not radically unjust. The grandchildren of the sister are given $1,000, and Mrs. King is the residuary legatee. She was a stranger in blood, but had been sympathetic and thoughtful of this old woman, who, evidently, had few friends, none to whom she was under special obligations. We cannot say, because she recognized the claims of gratitude and affection as superior to those of her sister, her desires are to be annulled. The secret motives prompting a person to make a will in a certain way may be difficult to ascertain, but they belong to the testator; and, whether right or wrong, his production must be respected. This was the testatrix’s property; she was disposing of it, and her wishes are supreme.

The decree revoking the will is reversed, with costs of the executrix, appellant, against the respondent personally, and the costs of ■the appealing infants to be paid out of the estate.

All concurred, except Follett, J., not sitting.

Decree of the Surrogate’s Court reversed, with costs of executrix, appellant, against the respondent personally, and with costs of the appealing infants payable out of the estate.  