
    
      In re Smith’s Will.
    
      (Supreme Court, General Term, Third Department.
    
    July 11, 1891.)
    1. Execution of Wills—Illiterate Testator—Knowledge of Contents.
    Testator’s will was drawn at his request, at his house, by a lawyer of long practice and high repute. Testator was unable to read or write, but at the time of the attestation of the will was in full possession of his faculties. The draughtsman read the attestation clause aloud, in the presence of the subscribing witnesses and of the testator, but did not read the will. The provisions of the will were simple and just, and it appeared that testator knew what they were. Held, that probate of the will was improperly refused.
    2. Same—Testator’s Mark—Proof.
    Where one of the subscribing witnesses to a will which was signed by the testator’s mark was dead, the will was properly admitted to probate on the testimony of the other subscribing witness as to the attestation, and on the testimony of a person not a subscribing witness that the mark was made by the testator.
    8. Privileged Communications—Draughtsman of Will—Declarations of Testator.
    An attorney at law, the draughtsman of a will, is competent to testify as to statements made by the testator in the presence of the attorney and of the subscribing witness, just before the execution of the will, as to his satisfaction with its contents.
    
      4. Best Evidence—Contents of Will.
    The testimony of a witness to a revoked will, as to its contents, cannot be introduced until the loss of the will is shown.
    Appeal from surrogate’s court, Saratoga county.
    Proceedings for the probate of the will of Matthew Smith, deceased. The proponents, decedent’s wife, Mary, and his nephew James Smith, appeal from an order of the surrogate refusing to admit the will to probate.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      J. W. Houghton, for appellants. C. H. Sturges, for respondents.
   Learned, P. J.

This is an appeal by proponents from the refusal of the surrogate to admit the will to probate. The reasons of the surrogate were that the deceased could not read or write, and the contents of the will were not made known to him; that he was of unsound mind and memory; and that the will was made under undue influences. The deceased had accumulated by industry about $6,000. He liad a wife, with whom he had lived on good terms for 30 years. He had never had any children. He had kept an hotel, patronized by working men, for some 25 years, and was himself accustomed to drink. His wife was a hard-working woman. The deceased made this will about a month before his death, and by it he gave $200 to his nephew James Smith, and everything else to his wife; making her executrix, and Judge Crane, of Saratoga Springs, executor. He has three brothers surviving, and several nephews and nieces, and he had had also a sister, who was not known to be living. The will was dated September 17, 1882. Proceedings for probate were commenced March, 1883; and after some delay the will was admitted to probate, March 20, 1889. This probate was after-wards set aside, on the ground of want of jurisdiction, apparently because certain infants had not lawfully appeared. In January, 1890, the present proceedings were commenced by the executor. The will is witnessed by James M. Andrews and Hiram H. Martin, and is signed by the mark of the testator. Andrews had died before the hearing. His signature was proved. We are unable to see sufficient evidence to establish undue influence. It was proved (assuming the testimony to be admissible) that he had previously made another will, by which he gave his property to his wife for life. But this change of testamentary disposition is not enough evidence of undue influence, and we find little else. Nor do we think that the evidence sustains the finding that the deceased was of unsound mind and memory. It is-plain that he was accustomed to drink too much spirituous liquor, and that he showed the effects of this habit. But an examination of the evidence does not show that unsoundness of mind which disqualifies one from making his will. We do not think it necessary to go over the details of the evidence, since there are some other points which we must examine.

The contestants urge that, as the deceased could not read or write, there was not sufficient evidence that he knew the contents of the will. The facts are that the will was drawn by Judge Crane, a lawyer of long practice, who-had been for some time judge of the county court. It was drawn at the request of deceased, and at his house. Mr. Andrews, one of the witnesses, was a lawyer, a man of large business, and at the time over 60 years old, evidently acquainted with the deceased, as appears from the conversation stated by Martin. Judge Crane and the deceased were together in the room when the two witnesses came in. Judge Crane read aloud the attestation clause in their presence, but did not in their presence read aloud the will. The decision in Rollwagen v. Rollwagen, 63 N. Y. 504, is that, when a testator cannot read, write, or speak, there must be, not only the ordinary proof of subscription and execution, but also proof that the testator understood the contents of the will. The same rule was applied in Re Bull, 19 N. E. Rep. 503, to the case of a testator who was nearly blind. Now, the application of this general rule must vary with the circumstances. For instance, in the Rollwagen Case, the testator had been paralyzed, and could not utter an intelligible sound, and there were many circumstances which made it doubtful whether the will expressed his wishes. In the present case, although the testator could not read, yet he was in full possession of his faculties. His brother, not mentioned in the will, came for the witnesses. A lawyer of high character, who- had held judicial position, drew the will at the request of deceased. It was drawn at the house of deceased. Judge Crane, the lawyer who drew it, was in the room with deceased when the witnesses came, and read the attestation clause in their presence, and in the presence of the testator. One of the witnesses, as we have seen, was also a lawyer of experience. Add to these circumstances the facts that the will was simple in its terms, and eminently just, and there is enough to satisfy the judicial mind that the testator knew the contents of the will. A strong presumption in favor of the will arises when it has been executed under the supervision of experienced persons familiar with the law. In re Cottrell, 95 N. Y. 339.

We have, then, in this case, more than the mere fact of the formal execution of the will. We have circumstances from which any one might reasonably infer that the deceased knew the contents, as it was distinctly proved that he knew the nature, of the instrument. The contestants claim that as one of the subscribing witnesses was dead, and as the testator signed by a mark, the will could not be proved. Code Civil Proc. §§ 2618, 2620. It is enough to say that Judge Crane, not a subscribing witness, proved that the testator made his mark. This is sufficient proof of handwriting. But we do not- decide, as intimated in some cases, that a subscribing witness may not, in such a ease, prove the handwriting by a mark of the testator. It is not necessary to pass on that question. Mr. Brackett was called as a witness by contestants. He testified, under objection, to instructions given him, as counsel, by Smith in respect to drawing a previous will in which he was a witness. He then testified, under objection, that Mr. Andrews, the deceased subscribing witness to the will in question, came to his office, and said that the will of Mr. Smith (referring to that drawn by Mr. Brackett) was unjust to Mrs. Smith, and that he (Andrews) was going down to have another drawn. It is quite doubtful whether this evidence was admissible. It in no way affected the question of the execution of the will in question. Nor was it an impeachment of a witness who had testified at the trial. If, even, we assume that Andrews stood in the same position as if he had been alive and had testified, this evidence did not contradict anything he could be supposed to have said. In re Hesdra, 119 N. Y. 615, 23 N. E. Rep. 555. If Mr. Brackett, being a witness to the former will, (In re Coleman, 111 N. Y. 227, 19 N. E. Rep. 71,) was competent to testify to statements of deceased, still he could not properly testify as to the contents of such will until its loss was shown. Judge Crane was asked: “When the will was about to be executed, what did Smith say, in the presence of Martin and Andrews, the witnesses, in respect to that will and his satisfaction with its provisions?” This was objected to under section 835, and excluded on the ground that this was a communication in the course of professional employment. There is no doubt that; this section applies to counsel employed by a client to draw a will.' Loder v. Whelpley, 111 N. Y. 239, 18 N. E. Rep. 874, and the Coleman Case, supra. But in the latter case the decision referred to conversations with the attorneys at the time of giving instructions to draw the will. The case here is entirely different. Judge Crane was asked simply as to a statement made by Smith in the presence of the subscribing witnesses and Judge Crane just before the execution of the will. It was held in Re McCarthy, 8 N. Y. Supp. 578, that such a statement was not within the prohibition. It was a remark addressed equally to the subscribing witnesses. It might- tend to show the knowledge had by the deceased of the contents of the will. It seems to us not to come within either the word of the section or the evil intended to be prevented. The decree of the surrogate should be reversed, and issues should be sent to the Saratoga circuit; costs to abide final event, order and issues to be settled. All concur.  