
    In the Matter of Proving the Last Will and Testament of Carrie E. Coe, Deceased. James W. Coe, Alfred W. Coe, H. C. Stratton, Special Guardian of James W. Coe and Alfred W. Coe, and Vernon D. Stratton, as General Guardian of James W. Coe and Alfred W. Coe, Appellants; George B. Coe, Individually and as Executor, etc., of Carrie E. Coe, Deceased, and Others, Respondents.
    
      'Testamentary capacity—proof required in the case of one judicially declared to he a lunatic.
    
    .A will executed by a person judicially declared to be insane is valid if shown to have been made intelligently and freely during a lucid interval; the evidence necessary to establish such a will should be clear and satisfactory, and the burden of proof is upon the proponent, the inquisition being prima facie evidence of the testator’s incapacity.
    A decedent, whose only heirs at law and next of kin were a brother and two nephews, executed a will, after she had been judicially declared to be a lunatic, and while she was confined in a private institution for- -the insane, by which, after making bequests amounting to about $12,-000, including a bequest of §500 to each of the nephews, she left the remainder of her estate, which amounted in all to about §28,000, to her brother, whom she appointed her executor. The Appellate Division, upon an appeal from a surrogate’s decree admitting the will to probate, considered that the evidence offered to establish that the will was the free act of a competent testatrix was not satisfactory, and reversed the decree- . and directed a trial by jury of the material questions of fact.
    .Appeal by James W, Coe, Alfred W. Coe, H. C, Stratton, as special guardian, and another, from that part of a decree of the Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 6th day of December, 1897, which reads as follows : “ And being satisfied of the genuineness, of the will and the validity of its execution, and that the testatrix at the time of executing it was in all respects competent to make a will, and-not under any restraint, and the probate of said will having been contested as aforesaid, it is adjudged and decreed that the said instrument offered for probate in this matter was duly executed and is .the last will and testament of the said testatrix, and as such is valid as a will of real and personal property, and the same is hereby admitted to probate and established as a will of real and personal property.”
    This appeal is upon the law and the facts.
    
      H. C. & V. D. Stratton, for the appellants.
    
      Charles W. Brown and D. L. Atkyns, for the respondents.
   Merwin, J.:

The instrument admitted to probate by the decree appealed from bears date and was executed on April 5, 1894. The testatrix died on the 12th of August, 1896, leaving as her only heirs and next of kin, her brother George B. Coe and the appellants James W. Coe and Alfred W. Coe, the infant children of a deceased brother, William M. Coe, who died on September 19, 1893. Her estate consisted of personal property to the amount of about $28,000, By the will' several pecuniary legacies were' given amounting in the aggregate to about $12,000, among which were legacies to the appellants James W. Coe and Alfred W. Coe of $.500 each. The balance of the estate was given to George B. Coe, who was also-appointed executor. ■

The probate was contested by the appellants upon the grounds of undue influence and want of testamentary capacity. . It was also claimed' that the formalities required by statute upon the execution of a will were not complied with, but - no particular ¡mint is now made on that subject.

The decedent at the time of making the will was about forty years old and a resident of Chenango county, but was then at. Owego in a private institution for the insane. She had been confined there since about April 1,18931 In June, 1893, upon petition of her brother, William M. Coe, dated June 2, 1893, a proceeding in due form was instituted in the Chenango County Court to inquire as to her lunacy and for the appointment of a committee of her person and estate. This resulted in an inquisition on the 16th of June, 1893, before commissioners and a jury, and a finding that she was a lunatic, and incapable of the government of herself or the management of her property. These findings were confirmed by the court by order dated June 26, 1893, and S. S. Stafford was appointed committee of her person and estate, and a commission was issued to him on August 7, 1893.

In Carter v. Beckwith (128 N. Y. 312) it was held that one who has been judicially determined to be a lunatic, and for whom a committee has been appointed, is incapable of entering into a contract, and any contract he assumes to make is absolutely vo'id. This, however, does not apply to the making of a will (Wadsworth v. Sharpsteen, 8 N. Y. 388, 393; Lewis v. Jones, 50 Barb. 645; Breed v. Pratt, 18 Pick. 115.) The inquisition, however, is prima facie evidence of incapacity. Lucid intervals may bo shown, and if during such a period a will is made intelligently and freely it may be established. (1 Jarm. Wills [6th ed. by Bigelow], *37.) The proof, however, should be cléar and satisfactory (Schouler Wills, § 111; 1 Wharton & Stille Med. Juris. § 744), and the burden of proof is upon the proponent. “ General lunacy being established, the proof is thrown upon the party alleging a lucid interval, and must establish, beyond a mere cessation of the violent symptoms, a restoration of mind sufficient to enable the party soundly to judge of the act.” (Hall v. Warren, 9 Ves. 605, 611.) In the Breed Case (supra) it is said by Chief Justice Shaw that where a person is under guardianship as non compos mentis it is incumbent on the party who would establish a will to show beyond . reasonable doubt that the testator had both such mental capacity and such freedom of will and action •as are requisite to render a will legally valid.

In 1 Jarman on Wills, 34, it is said “ that, in proportion as the infirmities of a testator expose him to deception, it becomes imperatively the duty, and should be anxiously the care, of all persons assisting in the testamentary transaction to be prepared with the clearest proof that no imposition has been practised. This remark especially applies to wills executed by the inmates of lunatic asylums, or any other persons habitually or occasionally afflicted with ' insanity.” (See, also, Rollwagen v. Rollwagen, 63 N. Y. 504, 518; Weir v. Fitzgerald, 2 Bradf. 42; Gombault v. Public Administrator, 4 id. 226, 239.)

In all cases of probate of wills it must appear that the testator is of sound mind and memory at the time the will was made (Code, § 2623 ; 4 R. S. [8th ed.] 2545, 2547, §§ 1, 21), and the standard of mental capacity is uniform. (Schouler Wills, § 111.) There must be mental capacity sufficient to enable the testator to understand and appreciate the amount and condition of his property and to comprehend the nature and consequences of his act in executing the will. ' (Matter, of Flansburgh, 82 Hun, 49 ; Matter of Will of Snellmg, 136 N. Y. 515, 517.) Whether this capacity, existed in the present case, and whether the will proposed for probate was the free and voluntary act of the decedent'wer-e the important questions to be determined.

The evidence on the part of the proponent tended to show that upon the day the will was made the testatrix appeared to act rationally. Still the managing physician of the institution, who was also one of the witnesses to the will, testified, “she was sane as to the will, but she was an insane woman ;” that my theory is that the person in her state of mind could carry out the past but could not carry out any new arrangement, that I do not think she was competent; I think the will was really a creation of the past, her relation to the past; that element entered quite largely into my judgment in regard to the execution of the will with her present condition at the time she made it.” This witness had stated on November 20, 1893, in response to an inquiry made of him on behalf of the proponent as to the capacity of his sister to make- a will, “ that she is not competent to make any disposition of her property in any way, as her judgment seems very defective.” It is not made very clear that her mental strength was any greater in April, 1894, than it was in November, 1893. There is evidence tending to show that the making of a will was first suggested by the proponent, and that he was to some extent active in preparations for it. He, however, in effect claims that what he did was in accordance with the intelligent request of the decedent. Much reliance is placed on prior statements by the testatrix as to her desire to make a will and what she desired to do with her property. It is not, however, made very clear that these statements, were made at a time of mental soundness, or that such statements as she did make were all in harmony with the provisions of the'will. It is not made clear that in her sane periods she had an intention of cutting off the children of her deceased brother with but nominal legacies. There is, besides, some doubt about her having fully understood the provisions of the will.

Upon the part of the contestants it is claimed that, at no time • while the decedent was at Owego, did she have mental strength up to the required standard, and that the will was not her free, voluntary act. Evidence is given tending to sustain this position. The decedent had been insane in 1886, but had recovered, partially, at least. Upon the death of her mother on March 1, 1893, there was a recurrence of mental derangement, and about the first of Apribshe was.

. sent to a sanitarium' at Clifton Springs for treatment, and shortly afterward was taken to the institution at Owego. The disease then upon her seems to have progressed steadily, and finally resulted in. her death.

Without further discussion of the evidence, it is sufficient to say that we have carefully examined and considered the large volume before us and the elaborate and learned briefs of counsel. We are not entirely satisfied with the conclusion reached by the Surrogate’s Court that the will was the free act of a competent testatrix. The evidence is not clear and satisfactory to that result. There is upon that subject sufficient doubt to make the case a proper one for a retrial before a jury, according to the rule in such cases. (Code, § 2588; Burger v. Burger, 111 N. Y. 523, 526; Matter of Pike, 83 Hun, 327, 331; Matter of Van Houten, 11 App. Div. 208; Matter of Dixon, 42 id. 481.)

The material questions of fact arising upon the issue between the parties are' as follows :

1. Did the decedent, at the time , of the execution of the will in question, have testamentary capacity?

2. Was the will in question the free voluntary act of the decedent ? ■ •

3. Was the will in question procured by undue influence practiced upon the decedent ?

All concurred.

Decree reversed upon the facts and a new trial by a jury at. a Trial Term of the Supreme Oourt, Chenango county, directed of the questions of fact stated in' the opinion, costs of appeal to the appellants payable from the estate:  