
    LIMBURGER against RAUCH.
    
      Supreme Court, Second District; General Term,
    February, 1867.
    Probate of Will.—Guardian and Wabd.—Burden of Proof.
    There is not necessarily a legal objection to a will made by a ward in favor of a guardian.
    If the guardian procures the execution of the will in his favor, the law presumes undue influence, and oasts the burden of proof upon him to show the act to have been that of a voluntary, capable, and understanding testator.
    Appeal from a decree of the surrogate of the county of Westchester, admitting a will to probate.
    The will of Augustus Adolphus Limburger, deceased, having been admitted to probate, Frederick Limburger, the uncle of the deceased, appealed from the decree. John H. Rauch, one of the .respondents, was the guardian of the deceased, and Catherina Rauch, the other respondent, was the wife of such guardian. The will of the testator gave all his personal estate to Mr. and Mrs. Rauch, and appointed the former his executor.
    
      
      James Eschwege, for the appellants.
    The following facts are established by the evidence- in the case.
    First. Upon the evidence it is clearly established that the testator was, at the time the pretended will was made, wholly in the power of Ranch, dependent on him for the smallest sums, for every comfort", and entirely under his control; that Rauch had possession of all his property, and never had given any account or information as to its amount.
    Second. That at the time the pretended will was made Rauch was sole acting executor of the will of the father of deceased, and sole acting testamentary guardian of the latter. '
    Third. .That Rauch has concealed from Mr. Frederick Limburger the fact that he, Frederick, was appointed executor and guardian by the will of his deceased brother, the father of Gustavus, and also the fact that Gustavus has made a will, and this, as Rauch says, by advice of counsel.
    Fourth. That the will was drawn by and "signed in the presence and under supervision of Mr. Rauch’s counsel, retained by him for that purpose, and without the knowledge of either of the uncles of Gustavus ; the presence of Rowley, who was retained by Rauch, is evidence of restraint, which is not overcome by the studied absence of Rauch from the sickroom, who immediately after the execution of the will appears, takes possession of the will, puts it in Ms pocket and carries it 'away, thus depriving deceased of the power of revocation by destruction.
    ' Fifth. That until the 22d of July, 1864, Gustavus had the kindest feelings of affection for his uncles and their families, and that, if on thé 5th of August, 1865, these feelings were changed into hátred and hostility, without apparent reason, such change must have been the result of undue influence and-misrepresentation on the part of the persons under whose control the dying boy then was.
    Sixth. That at the time of making the will, deceased, then weak in body and ailing, labored under the delusion that his uncles had badly treated him, that they were the cause of his enlisting in the army, and that one of them had said that it would have been better if he had been killed in battle, and that these delusions were entirely unfounded.
    
      Seventh. That until April, 1861, he hated and disliked Hr. Rauch, complained of his want of attention, &c.; that feeling of hatred and dislike was suddenly changed into extreme fondness and love; the change was so effective that the hoy of 18, after 12 years’ oblivion, again remembered the great kindness exhibited by Hr. and Hrs. Rauch to his deceased parents, at a period when he was only six years of age.
    The onus is on Rauch to support the transaction by showing the fullest volition, knowledge and deliberation in Gustavus Lim burger, who was then very sick and weak, easily led and influenced, Rauch being his guardian, in full possession of his ward’s property, with the ward wholly under Ids influence and control, and also to show affirmatively the utmost good faith (uberrima Jides) and all absence of influence on his part.
    Upon the question of law, Mr. Eschwege argued the following.—I. The will is void, being a gift, a gratuity, by an infant in favor of his guardian, made when his person and property were under the exclusive control of his guardian and the trust remained unsettled. Such transactions are set aside from public policy (Story on Equity, Jurisprudence, vol. 1, §§ 317, 318, 319; Reeve on Domest. Relations, p. 472; Tiffany & Bullard on Trustees, p. 134; Archer v. Hudson, 7 Beavan, 551; Hatch v. Hatch, 9 Vesey, Jr., 292; Pierce v. Waring, cited 1 Vesey, Jr., 379, 2 Vesey, Jr., 548; Montesquieu v. Sandys, 18 Vesey, Jr., 313; Wood v. Downes, 18 Vesey, Jr., 127; Hylton v. Hylton, 2 Vesey, Senr., 548; Osmond v. Fitzroy, 3 Peere William’s Rep., 129; Kirby v. Taylor, 6 Johns., 248; Bergen v. Udall, 31 Barb., 9; Gale v. Wells, 12 Barb., 84; Whelock v. Stuart, 28 How., 89).
    And this rule and policy apply to wills as well as to deeds ; the influence which directs the execution of a deed can with equal facility cause the making of a will (Morris and Wife v. Stokes, 21 Geo. Rep., 552).
    In this case Lumpkin, J. in delivering the opinion of the court, says : “ These adjudications are put upon the ground of public policy. Is there any difference in this respect between deeds and wills? In Waring’s case Lord Hardwicke said, ‘ Waring had been concerned as guardian, and as soon as the infant came of age, made up the account and retained that gratuity to himself, the same influence of the guardian continu ing, being done when his effects were to be delivered over was not this influence existing much more potentially while the ward of Lewis was still a minor, and the relation of guardian still subsisted ? Will a deed made -by a ward, even after he has come of age, be set aside, and a will made during the infancy not be questioned ? Counsel have submitted no authority to justify any such distinction. I have met with none.”
    II. The fiduciary relation of the proponent to deceased, his agency in drawing the will and procuring its execution, and the beneficial interest of himself and his wife under it, create a presumption, of fraud and uudue influence, which is not overcome by any satisfactory evidence that there was no undue influence exercised (Lake v. Ranney, 33 Barb., 49; Newhouse v. Godwin, 17 Barb., 237; Vreeland v. McClelland, 1 Bradf., 393, 424, 425, 428; Ingram v. Wyatt, 1 Hagg., 385; Whelan v. Whelan, 3 Cowen, 556, 576, 585 and 586; Mason v. Ring, Court of Appeals, manuscript; Morris v. Stokes, 21 Geo. Rep, 552; Kirby v. Taylor, 6 Johns., 248; Sears v. Shafer, 6 N. Y. [2 Seld.], 268; Hunter v. Atkins, 3 Mylne & Keen Rep., 135; 10 Eng. Ch. Rep; Whitehorn v. Hives, 1 Mnnford, 557; Taylor v. Taylor, 8 How. U. S. Rep., 183).
    III The circumstances of the case, the sudden change in the feelings and disposition of the deceased, without any apparent or substantial reason, the cordial relations between him and his uncles and cousins existing immediately before the execution of the will, his dislike and distrust of his guardian, which appeared to have been mutual, the treatment he received at the hands of his guardian until April, 1864, and the guardian’s extreme and extravagant attention and kindness to testator after that date; the suppression by proponent of all information to the uncles in respect to the will, his taking and retaining possession of the will, thus rendering revocation by destruction impossible, the delay in offering it for probate—all these cii’cumstances unexplained, show undue influence on the part of the guardian ; if not, they certainly must leave the conscience of the court in equilibrio on the question whether this will was the free, deliberate and uninfluenced act of the deceased ; on either ground probate should have been refused (March v. Tyrrel, 2 Hagg., 84; Blewitt v. Blewitt, 4 Hagg., 210; Jones v. Goodrich, 5 Moore, P. C., p. 19; Middleton v. 
      Forbes, cited in 1 Hagg., 395; Mowry v. Silber, 2 Bradf., 133, 149 and 151; Vreeland v. McClelland, 1 Bradf., p. 428; Parish Will Case, 25 N. Y. Rep., 7; Opinion of Gould, J., at page 92, 94 and 95; Morris v. Stokes, 21 Geo. Rep., 552, and cases cited sub. II).
    IV. The maxim se soripsit haeredem applies, the will being ■ drawn by and executed under the supervision of proponent’s counsel. Quifacit per odium faoit per se (Parish Will Case, 25 N. Y. Rep., 35, 92, and cases there cited; Paske v. Ollat, 2 Phillhnore, 323).
    V. The testator, at the time of making his will, was laboring under delusions, against all evidence and probability, in respect to his uncles, who would naturally have been the objects of his testamentary bounty; the dispository provisions of the will were, or might have been caused or affected by such delusion ; if so, the instrument propounded can not be deemed to be his will (Seaman’s Friend Society v. Hopper, 33 N. Y. Rep., p. 619; Same Case, 43 Barb., 625; Boyd v. Ely, 8 Wayts, p. 71; Woodbury v. Obear, 7 Gray, 467; Dew v. Clark, 3 Add. JEcc. Rep., p. 79 ; Same case on appeal, 5 Russell Ghan. Cases, p. 163; Stanton v. Wetherax, 16 Barb., 259; Johnson v. Moore’s Heirs, 1 Little Rep., 371; Leech v. Leech, 11 Perm. L. J., 179; Ray Med. Jurisprudence on Insanity, §§ 232 to 237; Wharton de Stille on Med. Jurisprudence, § 14.
    
      J. W. Tompkins, for the respondents;
    insisted that it is only a rule of evidence, that beyond the proof of the factum, the burden remains on the proponent to show by additional testimony spontaneousness and volition (Wilson v. Moran, 3 Bradf., 180, 181), and that in this case it was fully proved that the will of the testator was made solely of his only volition, uninfluenced by any one, and just as he intended and desired it should be made.
   Barnard, J.

The testator on August 5th, 1864, made the will in question yhe was then a little over nineteen years of age. The will was made and executed at the house of John H. Rauch, in Hastings, Westchester county, with whom the testator then lived, and had so lived from the preceding March, and continued so to do until after it was made, until the 30th of October, 1864, when he died there. At the time of the execution, of this will, John H. Bauch was the testamentary guardian of intestate tinder his father’s will, and had in his hands all his property, amounting to between two and three thousand dollars. By the will, the testator bequeathed all his property to John H. Bauch and Anna his wife. The next of kin' of deceased, were two paternal uncles and a paternal aunt. There js no legal objection to a will made by a ward in favor of a guardian. In such cases, when the guardian has been at all instrumental in procuring the execution of the will, the law presumes undue influence by reason of the confidential relation existing between guardian and ward, and the guardian who proposes such acts must go beyond the mere formal execution of the paper, and show the act to have been the act of a voluntary, capable, and understanding testator. All that can be truly said is, that if a person, whether an attorney or not, prepare a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight, in some of no weight at all (1 Curteis, 637; Bullen v. Barry, and approved in” Coffin v. Coffin, 23 N. Y. Rep., 9).

The facts disclosed by the evidence are briefly these. The testator lost his father and mother at the early age of six years he was received into the family of his father’s brother, Frederick Limburger, he continued there about three years' and was. then placed at school in Germany by his uncle, Frederick Limburger. On his return from Germany he lived about eight months with his uncle, and then, after several unsuccessful efforts to engage in business, he enlisted in 1862, in the 121st Regiment N. Y. Volunteers; his health failed in the army, and in April, 1863, he was discharged; he returned to his uncle Frederick’s house, and stayed a short time there, engaged in business, and then went to live with his uncle Charles, paying him his hoard until April, 1864, when Mrs. Rauch went and took him from there to her husband’s house in Hastings. Bauch had been very intimate with testator’s father, had been his assignee, and was his executor, and the guardian of his son. Testator’s father had died at Bauch’s house, and Mrs. Bauch had left her home to nurse his mother, and had also attended the last moments of testator’s brother and sister when they died. Mrs. Bauch tenderly and kindly nursed and cared for testator from April, 1864, until his death, with the exception of about two weeks, when the deceased was in Orange, Mew Jersey. During all this time his health was very bad and continually failing ; his disease was consumption. The will was drawn by Robert Rowley, an attorney of this court; he was not the attorney of Rauch, except that he had drawn a confession of judgment six years before for him. Rauch carried a message from testator to Rowley that he would like to see him. Rowley went, and testator told him he had sent for him to draw his will; he told him his age, in what his property consisted, that he was not married, and had no near relations, and that he wanted to give all liis property to Mr. and Mrs.' Rauch. That they had been so kind to him, that his relations had not. That this will in favor of Rauch was his own voluntary act, and own voluntáry conclusion. That he would not leave hip relations a cent, but would leave all to Mr. and Mrs. Rauch “ because they had both been so kind to him.” The will was drawn, read over by Rowley carefully and audibly ; he said it was all just right; when asked if he wished it read again, he replied, I understand it perfectly, it is just as I want it.” . The will was then executed, neither Mr. or Mrs. Rauch being present at the instruction for, or execution of the will. The will after it was executed, was sealed up by Rowley, and delivered to testator, who in the presence of Rowley handed it to Rauch, and asked him to take care of it.

The proof of the capacity of the testator is abundant, and is • not questioned by any witness. I think the facts dispel any presumption of undue influence over the testator, and show spontaneity and untrammeled will in testator; he had a home, care, affectionate attention, and sympathy from his father’s and mother’s friends, and his guardian, and he freely, and understandingly executed the will in their favor.

The amount bequeathed is reasonable, and the will should stand.

Judgment affirmed with costs.  