
    In the Matter of the Probate of the Last Will and Testament of David Drake, Deceased. Joseph H. Drake and Others, Contestants, Appellants; David H. Drake and Alonzo T. Drake, as Executors, etc., of David Drake, Deceased, Respondents.
    
      Appeal from a sui’rogatds decree — decision of questions of fact by the Appellate Division — rule as to proof of. undue influence — when the case will be sent to a. jury.
    
    Where an appeal from a surrogate’s decree is taken upon the facts, under section 2586 of the Code of Civil Procedure, the Appellate Division has the same power as the surrogate to decide the questions of fact.
    Where a will is alleged to have been obtained'by undue influence, the burden rests upon the party making the allegation to prove not only that there was an opportunity to exercise undue influence, but that it was actually exerted, and -that the effect of it was to overpower the will of the testator, and to induce him to make a disposition of his property other than that which he would have made had no. influence been exerted upon him.
    In this case the Appellate Division, after a careful consideration of the evidence, concluded that there was doubt as to whether the deceased, at the time he made his will, had sufficient mental capacity and an understanding of his relation'to-all the persons who might be the objects of his bounty, and as to whether the will wms the product of an independent and intelligent understanding on his. part, and it directed that the questions of fact should be submitted to a jury.
    Appeal by the contestants, Joseph H. Drake and others, from a decree of the Surrogate.’s Oourt of Jefferson county, entered in said Surrogate’s Oourt on the 25th day of September, 1897, adjudging that an instrument- purporting to be the last will and testament of David Drake, deceased, was properly executed and that it is genuine and valid, and that the deceased, at the time of the execution of the instrument, was competent to execute the same and was not under restraint or undue influence, and had testamentary capacity to make a will disposing of his personal property, and admitting said will to probate ; and from all of said decree “ except so much as awards costs and expenses to the parties who appeared and presented said will for probate.”
    On May 18,1896, David H. Drake and Alonzo T. Drake presented their petition, as executors, to the Surrogate’s Court of Jefferson county, in which they alleged that David Drake died in the town of Philadelphia on the 24th of April, 1896, having made and executed his last, will and testament, in which petition were stated the heirs and next of kin of the deceased, and prayed that a citation issue out of that court to the proper persons pursuant to statute to appear and attend the probate of the said last will and testament. Upon the return of the citation Joseph IT. Drake and the other contestants appeared and disputed the validity of the said will and tiled a statement in writing, of the grounds of opposition to the same in which they object to the instrument as not made and executed according to law, and that it was not, in fact, duly and legally executed, and that it was not published, and that it was “ not the free act and deed of said deceased. That at the time said instrument is alleged to have been made, executed and published, said deceased was not of sound and disposing mind and memory, and was incompetent to make, execute or publish a valid will.
    
      “ That at the time said instrument is alleged to have been made, * * * said deceased had lost his mind and memory, could not write or speak intelligently or understandingly, and said instrument was not signed, executed or published by said deceased.
    
      “ That the alleged making, execution! and publishing of said instrument was instigated, obtained and procured through and by means of undue influence, artifice, duress and fraud, practiced upen said deceased, and said alleged will is not the free and voluntary act and deed of said deceased, and is invalid and void.”
    After the hearing in the Surrogate’s Court several requests to find were presented to the surrogate and refused, and an exception to such refusal allowed to the contestants.
    
      .After'hearing voluminous testimony the surrogate made findings of fact and conclusions of law, viz.:
    
      ■“ First. That the testator, David Drake, at the time of the execution of the will in question, was of sound mind, had testamentary capacity, and was, in all respects, competent to make and execute a last will and testament.
    “ Second. That the said will ’ presented for probate herein was duly executed by said testator, David Drake, on the day that it bears date, in compliance with the statutes governing the execution of last wills and testaments. , ,
    “ Third. That the said testator, David Drake, was not under any restraint, and was uninfluenced by any person or persons in the making and execution of .said will.”
    As conclusions of law:
    “ First. That said will must be admitted to probate as the last will and testament of said David Drake, deceased. _ .
    “ Second. That a decree be entered herein admitting said will to probate and establish in g and confirming said will as a good and valid will of personal property, and awarding letters testamentary thereon to the executors named in said will.” ;
    A decree in accordance with the findings of the surrogate was entered. Exceptions were filed by the contestants to the findings of fact and to the conclusions of law stated by the surrogate.
    
      William F. Porter, for the appellants.
    
      Henry Purcell, for the respondents.
   Hardin, P. J.:

On the 24th of April, 1896, at the residence of liis nephew, Alonzo Drake, in the town of Philadelphia, David Drake, a bachelor, at the advanced age of ninety-one years, died, having at the time of his death about $18,000 of personal property and 965 acres of land, worth in the neighborhood of $40,000, which property he had accumulated in the course of his long life. On the ninth of March he was taken ill and a physician was called to attend him. For several days he was confined to his bed, having catarrhal pneumonia. On the sixteenth of March his physical condition was quite critical and his physician indulged in apprehensions that his end was near and that he was liable to die at any time. 'When such fact became known to his nephews, one Acheson was sent for, a justice of the peace, and one John J. Kinney, another justice of the peace, to prepare papers to be executed by the testator; they reached the house where the deceased was ill in the afternoon of the sixteenth •of March and Acheson undertook the task of drawing several deeds to convey the deceased’s real estate to the several grantees mentioned in the deeds, and Kinney undertook the task of preparing .a will for the deceased which should dispose of his personal property. When Kinney entered the room of the testator he found him in a. debilitated and dozing condition in his bed, disinclined to give the details for the preparation of his will, referring Kinney to the two nephews, David H. and Alonzo T. Drake, to whom the testator said he had communicated his wishes in respect to the provisions of the will to be prepared. Thereupon Kinney held an interview with the nephews and sought to ascertain from them the directions which had been given by the testator to them in respect to the terms of the proposed will. They repeated to him the names of the several legatees and the several sums that it was proposed they should receive from the testator. When some of the names were mentioned a discussion arose between the nephews as to the amount that should be given, one of the nephews asserting the amount, and in reply thereto, the other "nephew saying that the. amount was too large. As a sequence of the conversation with the two nephews the will in question was prepared by Kinney. The will thus prepared provided for the payment of the debts of the testator, and contained a provision bequeathing to the niece of the testator, Fanny ReeSe, the sum of .'$1,000, and to Jane E. Shumway $1,000 ; to J. Henry Drake, $500 ; to Catherine Crabb, $500 ; to Melisia Van dewalker, $500 ; to J. F. Drake, $5Q0 ; to Alexander Drake, $500 ; to Ira Cooper, $100, and also numerous other small legacies, amounting in the aggregate with those mentioned to the sum of $8,600. The will then contains a provision that in the event that there is not enough personal estate to pay the bequests, it is directed “ that each shall receive their proportion pro rata, and if there is more than enough then I give and bequeath to Alonzo T. Drake and David Henry Drake the remainder, each share alike- I also give and bequeath to Alonzo-T. Drake my gray horse, also harness, buggy and cutter, together with a quantity of oats stored on the Emmit Wilson farm, and I do-further order and direct that my executors shall have two years to-pay the above-named bequests after my death.”

The' will further provided, viz.; “ Likewise, I make, constitute* and appoint David Henry Drake and Alonzo T. Drake, without. giving bonds, to be my -executors of this my last will and testament,, hereby revoking all former wills by me made.”

The instrument purports to be signed by the testator, viz. : his .' _ “ David X Drake,” and to have been witnessed ' by De Witt 0.. mark Rodenhurst. Subjoined to it is the usual- attestation clause signed, by Thomas J. Acheson and John J. Kinney.

Besides the advantage of being executors, it is apparent that David. Henry Drake and Alonzo T. .Drake were substantial beneficiaries-under the will as prepared. On the sixteenth of March, when the-will was prepared,'the deeds that were pre¡iared carried from the testator all of his real estate except the Slocumville farm, and as that was overlooked or forgotten- on the sixteenth of March, a deed waeprepared on-the seventeenth of March transferring the same to David H. and Alonzo T. Drake. At Alonzo’s house when the deeds and. the will were prepared there were present David Henry, Alonzo-T., who were the principal beneficiaries and who were grantees-in the deeds of three-fourths of- the real estate of the testator,, and Mr. Acheson, Dr. Rodenhurst, the attending physician, and John J. Kinney. Dr. Rodenhurst appeared at the house oh the* morning of the sixteenth of March and announced that a marked. change had occurred in the condition of the testator; he was then failing rapidly and growing weaker and his voice was weakening.. One of the deeds prepared on the occasion purported to transfer 272 acres of land, called the New Boston farm, to David Henry,, supposed to be worth forty dollars an acre. Other deeds were prepared to Alonzo T., in which he was the grantee of 180 acres of land in the town of Philadelphia, worth about thirty dollars an acre;. and they also were grantees jointly of 200 acres of land in the town, of Philadelphia worth in the neighborhood of forty dollars per acre,., and grantees of land situate in the town of Leray known as the* Slocumville farm, containing 96' acres and supposed to be worth twenty-five dollars per acre. Thus the deeds were made to carry to them some 748 acres of land; to Mrs. Virginia Wilson a deed was prepared of 1U0 acres, worth about forty dollars an acre, and to Hattie Fike, of 117.acres, worth in the neighborhood of forty dollars an acre.

The evidence discloses that, in the haste with which the transactions of the sixteenth of March were carried forward, there was an oversight of the Slocumville farm, and a deed for that was prepared on the following day. The omission was discovered by David Henry Drake on the evening of the sixteenth and he informed Kinney of the omission and Alonzo asked Kinney to prepare a deed for that, «and Kinney, on the night of the sixteenth, declined to do so, and when he asked David and Alonzo who should receive that farm, they replied that they would take it. It appears the will and deeds were drawn in the.room known as the parlor, and the evidence indicates that the instructions for .drawing the will were given to Kinney by David Henry and Alonzo T., exclusively, he not receiving any directions from the testator in reference to the terms of the will. The phraseology of the will seems to be plain and clear.

In section 2623 of the Code of Civil Procedure it is provided: “ If it appears to the surrogate that the will was, duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint; it must be admitted to probate, as a will valid to pass real property, or personal propperty, or both, as the surrogate determines.”

Inasmuch as the surrogate has admitted the will to probate it must be assumed that he determined’that it was duly executed and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint. However, as this appeal is taken upon the facts, by virtue of section 2586 of the Code of Civil Procedure, this court has the same power to decide the questions of fact which the surrogate had.

The record before' us is very voluminous; the taking of testimony occupied some twelve days in the Surrogate’s Court. From a perusal of the evidence found in the record we are of the opinion that grave questions of fact were presented for the determination of the surrogate in respect to the due execution; in respect to the testamentary. capacity of the deceased, and in respect to his freedom from restraint, and as to whether undue influence was exercised upon him which induced the execution of the will in question.

There is considerable evidence given by the proponents tending to sustain the conclusions reached by the surrogate, especially' the evidence which is given that the testator, after recovering from his depressed condition on the sixteenth of March, continued to live until the twenty-fourth of April, and when he was in apparently a normal condition, referred to the fact that he had executed a will and that he had fixed up his business in the manner in which he desired and declined to enter upon any new engagements; (Matter of Green, 67 Hun, 527.) We may assent to the contention of the learned counsel for the respondents that, “ because the testator was a man of advanced years or enfeebled in mind or body at the time of the execution of the will,” no presumption can be indulged in against the will. And we may assent to his further proposition, that the real questions are, did the testator have sufficient intelligence to comprehend the con-. dition of his property, his relation to those who were the objects of his bounty, and the scope and meaning of the provisions of the will? If" so, then the will was his free act and it should be sustained. (Horn v. Pullman, 72 N. Y. 269; Matter of Davis, 91 Hun, 209; Matter of McGraw, 9 App. Div. 372.)

In Matter of Folts (71 Hun, 492) it was said that there is no presumption against a will because made by a man of advanced years ; that testamentary incapacity cannot be inferred from an enfeebled condition of mind or body, and that the burden of proof is upon the proponents of a will to show by grima facie proof a testamentary capacity at the time of the execution of the will.

In the case in hand the proponents gave testimony which, if credited, established a prima facie case in favor of the will so far as it relates to the capacity of the testator at the time of executing the will in question. In determining the capacity of the testator in this case, as his health was impaired by disease and he was at an advanced age, it is the duty of the court to scrutinize all the evidence relating to the circumstances attending the preparation and execution of the will; and under the rule laid down in Matter of McGraw (9 App. Div. 372) by this court, and under the circumstances there detailed, as well as the circumstances here detailed, it is the duty of the court, in determining questions of testamentary capacity, to “ look with greater care and solicitude into the case and adopt a more rigorous rule where the decedent is weak and suffering than if he was in comparative health.” (Matter of O'Dea, 84 Hun, 591.)

The circumstances disclosed by the evidence in this case challenge the most cautious and careful scrutiny in respect to all the features of the transaction of the sixteenth of March, when the will was prepared and executed ; and the grave question in the case is whether there was an intelligent action on the part of the testator which is requisite in order tó warrant the conclusion that the instrument reflected His will and intelligence, or whether it was the product of another’s mind. It is, therefore, in this case very important to determine whether the testator was unduly influenced by those surrounding him at the time he was apparently in extremis. That the nephews took an active part in framing the will is quite apparent from the evidence, and that they exercised more or less influence upon him is manifest by the evidence which is found in the record.

In Matter of Seagrist (1 App. Div. 619; S. C. affd., 153 N. Y. 682) the right of parties, situated as these nephews were towards the testator to exercise influence, is considered, and it was said : “ Persons who occupy .intimate and affectionate relations with any individual have the right, by personal request, by fair argument, and even by decent importunities, to procure a will to be made. The fact that they have done so is no argument against the validity of the paper, provided these importunities do not proceed so far as to overpower the will of the testator and induce him to do the thing which he would not have done but for these importunities, and to substitute the will of the beneficiaries in the place of his own uncontrolled judgment. (Parfitt v. Lawless, L. R. [2 P. & D.] 462; Tyler v. Gardiner, 35 N. Y. 559.) If the result of the importunities is simply to cause the testator to act and to convince him of the propriety of making the will in the way in which he finally does make it, so that at the last it is his own act and represents his own judgment, the will is nevertheless good.”

Where a will is alleged to have been obtained by undue influence, the burden is upon the party making the allegation, and such party is not only bound to prove that there was an opportunity to exercise undue influence, “but that it was actually exerted, and that the effect of it was to overpower .the will of the testator and procure him to. make a disposition of his property other than that which he would have made if no influence was exerted, and which he would not have made if no such influence had been practiced upon him.” (Matter of Spratt, 4 App. Div. 5.)

In Matter of Will of Snelling (136 N. Y. 515) it was held that “ What the law terms undue influence must be such as overpowers the will of a testator and subjects it to the will and control of another; it is not established by proof simply tending, to show that the testator, acting from motives of affection or gratitude, gave his property to strangers to his blood.” .

The evidence offered by the contestants upon the subject of the actions and efforts on the part of the nephews to induce the making of the deeds and the execution of the will raises a question as to whether they transcended the rule laid down in the cases to which we have adverted. ' A solution of that question depends largely upon a full consideration of all the evidence relating to the transactions of the sixteenth of March, and whether certain inferences and deductions should be drawn therefrorn which Avould be prejudicial to the proponents, or whether certain inferences and deductions may be drawn therefrom which would be favorable to the contestants, may be said to be a matter of some doubt.

Inasmuch as we have reached the conclusion upon the whole evidence that the questions of fact ought to be submitted to a jury who may view the witnesses and consider the different aspects of the evidence, we forbear to comment more at length upon the leading features of the testimony relating to the capacity of the testator, or the influence that was exercised upon him by the proponents.

We think a careful consideration of all the evidence requires us to apply the rule which ■ we laid down in Matter of Dixon (42 App. Div. 481). In that case we held, viz.: Where an instrument offered for probate as a last will and .testament is attacked upon' the ground of undue influence and lack of testamentary capacity, and it appears, upon an appeal from a decree admitting it to probate, that the disposition of the questions of fact raised by the evidence is not free from, doubt, and that the surrogate’s decision is not entirely satisfactory, the questions of fact will be sent to a jury for determination.”

•A careful consideration of the evidence in the record before us lias led us to the conclusion that there is doubt whether the deceased, at the time he executed the will, had mental capacity and understanding of his relation to all the persons who might be the objects of his bounty, and as to whether the will was the product'of an independent and intelligent understanding on the part of the testator. Having doubt upon the questions raised by the contestants in xespect to the execution and the capacity of the testator, and whether ■any undue influence was éxercised upon him, we have concluded -that the questions should be submitted to a jury to determine. Having, therefore, concluded to reverse the decree of the surrogate-■upon the questions of fact, we must, pursuant to section 2588 of the ■Code of Civil Procedure, direct a trial by a jury of the material questions of fact arising upon, the issues between the parties. •(Matter of Laudy, 148 N. Y. 403.)

An order will be allowed directing a trial at a Trial Term in Jeftferson county of questions arising in the case, to wit:

1. Was the instrument purporting to be the last will and testament of David Drake, dated March 16, 1896, duly executed by him ?

2. Did he have testamentary capacity at the time of the execution of the instrument purporting to be his will ?

3. Was the execution of the will of the decedent in March, 1896, procured by fraud, circumvention or undue influence practiced upon -him?

We think the costs of the appeal should abide the event of a new trial and be payable out of the estate. (Matter of Van Houten, 11 App. Div. 211; Matter of Dixon, 42 id. 489.)

So much of the decree of the Surrogate’s Court of Jefferson •county as is appealed from reversed, and a trial of the questions ■■stated in the opinion ordered before a jury at a Trial Term in that county, with the costs of this appeal to the appellants to abide the event of a 'new trial, payable out of the "estate.

All concurred.

So much of the decree of the Surrogate’s Court of Jefferson county as is appealed from reversed, and a trial of the questions ■stated in the opinion ordered before a jury at a Trial Term in that county, with the costs of this appeal to the appellants to abide the event of a new trial, payable out of the estate.  