
    In the Matter of Proving the Last Will and Testament of Julia O’Gorman, Deceased. Francis A. Curry, as Executor, etc., of Julia O’Gorman, Deceased, and Edward Monroe O’Gorman, Appellants; William J. O’Gorman and Others, Respondents.
    Second Department,
    June 18, 1908.
    Will—facts not showing testamentary incapacity or undue influence.
    Appeal from a surrogate’s decree denying probate upon the ground that the testatrix lacked testamentary capacity and because execution was procured by restraint and undue influence.
    Evidence examined, and held, that a finding that the testatrix lacked testamentary capacity or that the will resulted from undue influence was not warranted. Where it appears that the husband of a testatrix had left substantial legacies to adult sons and daughters and had. aided them upon marriage, the fact that the testatrix leaving an estate of §11,000 made specific bequests of §4,500 to servants and others and left the residue to an infant son without providing for her married children raises no presumption of undue influence.
    Appeal by the petitioner, Francis A. Curry as executor, etc., of Julia O’Gorman, deceased, and another, from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 30th day of December, 1907.
    
      Alton B. Parker [John F. Cloonan and John Madden with him on the brief],, for the appellants.
    
      August L. Martin [Henry W. Wiggins and Russell Wiggins with him on the brief], for the respondents.
   Hooker, J.:

The learned surrogate has denied probate of the will of Julia O’Gorman, deceased, and appeal comes to this court from his decree. The grounds upon which the decree is based are that the deceased was not of sound and disposing mind and memory, but was a person of unsound mind and memory and was not competent to make the will, and that its execution was procured while she was under restraint and undue influence of the persons named as executors, legatees and devisees.

The finding oh the learnéd surrogate that the deceased was no't of sound arid disposing mind and not competent to make a will is to my mind so. clearly against the weight of evidence that it is.perhaps unprofitable, to enter into a. detailed discussion of the evidence on that branch of the case.' It is sufficient to point out that the family physician, who.had been in attendance for years before her death, was relied upon principally by the contestants to establish the men- ■ ■ tal condition of the deceased, but in answer to a question by the learned- surrogate he stated: I think that she was of sound mind. -I would have to say to that, yes, sir. * ' * • "x"1 . Her mental condition as to susceptibility of influence was such'that she could be influenced to a certain extent. I do not think that Mrs. O’Gorman - could be influenced' to do anything against her own interests. I do not think anyone could influence her that was at any time against her own interests.” - The witness Eagle, called by the contestants, testified that she had been a servant, in the O’Gorman residence for nineteen years. She said that the deceased remained in good health up to the time of her .death except that her heart bothered her a little. Once in a while she had weak spells. * * . *' She never acted to me as if she didn’t know what she was talking about. She always acted as if she; knew what she was '.'talking about.” Granting that Mrs. O’Gorman Was not in as good health after her husband’s death as formerly, and that the loss, of her husband' whs the subject of her constant reflection, still the evidence as to- her conduct, as to her interest in her estate, and the very intelligent interest which she displayed in augmenting her own. .property and improving it, together with the direct evidence of her sound mental condition, so far overbore the possible inferences of decaying mentality that the finding of the learned surrogate upon this branch of the case cannot be sustained.

By her will, the deceased directed,' first, the paymént of her debts; second,- bequeathed to Catherine Eagle, her housekeeper, $1,000 ;• third, tó ..Minnie Kane, servant, $500; 'fourth, to ■ Julia Smith, a niece, $1,000; fifth, to Francis A. ' Curry, one of her executors, $1,000; sixth, to'Millie A. Westervelt, the daughter of Warner W. Westervelt, who had been her attorney árid fot many years previous to that'the confidential attorney of her deceased husband, $1,000; and seventh, .all. the rest and residue of her estate to her infant son, Edward M. O’Gorman. Deceased had eight children, all of whom were married and had left home prior to her decease except the infant son, Edward M., who was at that time in school. He was just reaching the age of eighteen years at the time the will was made. Her husband predeceased her by some three years or more, and by the provision of his will he left the life use of his rather large estate, .consisting principally of 107 houses, to his wife, and after her death it was to be divided into eight equal shares, of one of which each of his children was to have the benefit.-

Much stress has been laid upon the terms of a certain letter prepared by her husband fourteen years before the deceased made her will, and which came to light upon the death of her husband. This letter was directed to his wife and children, and among other things expressed the wish that they might work together for the good and benefit of all, and that they might avoid doing anything by which the shares of any of his children or of his wife should in any manner be diminished. The petition for the probate of the will of Julia O’Gorman disclosed $11,000 worth of property, $4,500 of which was specifically bequeathed, and the residue was to go to the infant son, Edward M. In view of the large estate her husband had left and of the provision that it should be equally divided among her children at her death, the bequest of $1,500 to servants, of $1,000 to a niece and of $1,000 to one of her executors, would not seem to indicate conclusively that she had been induced against her will to make disposition of her estate under some influence antagonistic to the interests of her children. The bequest of $1,000 to the daughter of-Mr. Westervelt is so fully and. candidly explained by more than one witness that it seems to me any presumption of fraud which might lawfully attach by reason thereof was amply rebutted.

The mother of one of- the legatees testified to a conversation she had with the deceased shortly after the making of the will, in which she stated the reasons which impelled her to draw her will in favor of her younger son; deceased stated that she did so because she thought she was doing right, as her husband had provided for the other children ; ihat they had all been educated and when married had been fitted out; that she felt that the younger son should be educated and should have what the others had had, and she had left her property to him for, that reason. It seems to me'that the whole testamentary scheme was as much like one which a lady in her' circumstances would- be apt to make, as one which provided for each of her eight children, especially in view of the fact that at the time the will was made, the chief beneficiary, her .son Edward M., was the .only unmarried child, eighteen years .of age and in schobh Much is made of the fact that the legatees, the niece and the executor, and their families, were much in attendance upon the deceased for some time prior to her death ; it was urged that this was to the exclusion of her own children, and; the inference of undue influence is invited. But her own children, except Edward who was in school, were married and had establishments of their own, except one daughter, a widow; and there is nothing to suggest that if any of these children had been' in a position to leave their established homes and live with their mother they would not have been as welcome and as happy with her and she as happy with'them..

Proof of undue influence depends in this case, as it must in most, upon circumstances and upon inferences to be drawn from specific . facts; but our conclusion upon an examination of the whole record, is that the finding of the .learned surrogate that the.execution . of the will was made while the deceased was under restraint and undue influence, is against the weight of the evidence.

We must, therefore, reverse the decree, and pursuant to the provisions of section 2588 of the Code, of Civil Procedure, direct a trial by-jury of the issues; the place of the trial and the ques-' tion to be tried will be specified in the order, which may be settled on. notice.

Woodward, Jenks, Eioh and Miller, JJ., concurred,

Decree of the Surrogate’s Court of Orange county reversed and issues ordered to be tried by a jury, with costs of the appeal to abide the event of the new trial, payable out of the estate.  