
    (50 Misc. 669)
    In re THOMPSON'S WILL.
    (Surrogate's Court, Kings County.
    May, 1906.)
    In the matter of the probate of the last will and testament of Edwin ID. Thompson, deceased. See 100 N. Y. Supp. 492. Ira J. Dutton, for proponent
   CHURCH. S.

Since writing the second opinion herein, counsel for the proponent has submitted an additional brief, and contends that the authorities therein cited establish that the will and codicils should be admitted to probate. A careful examination of the cases does not, however, justify such contention. The case of Deck-er v. Waterman, 67 Barb. 460, did not arise on probate, but was an action between legatees to a will to have judicially determined the extent of the estate of the deceased. Although the situation was radically different from the case at bar, yet the court considered the legal proposition in regard to actual and constructive undue influence, and the decision rendered was on all fours with the previous decisions therein; using the following language (page 466): "The fact that such a relationship exists does not prevent the principal from making a voluntary donation to his agent and attorney. The same is not absolutely prohibited by the rules of law. But when it is established that such a relation exists between the donor and donee, then, before the validity of the gift will be upheld, it must be made to appear that the transaction was unaffected by fraud of any description whatever, either actual or constructive. The burden of proof rests on the donee, to establish its perfect fairness and propriety. * * * If such proof cannot be given, then the case will be treated as one of constructive fraud, and set aside." Reference is also made to the case of Matter of Sheldon (Sur.) 16 N. Y. Supp. 454. This latter case has a lengthy opinion by the surrogate of Madison county, which is devoted to a careful discussion of the facts of that case. No reference is made to any decisions therein, however, and it cannot be said to indicate any intention on the part of the surrogate to decline to follow the doctrine of Marx v. McGlynn, 88 N. Y. 357, to distinguish or to modify the same, as in the statement of the legal principles there seems a complete recognition of the rules of that case. The law, therefore, is exactly as stated previously, and the sole question is one of fact as to whether the proponent has successfully borne the burden of rebutting the presumption of undue influence. The effect of the evidence having been heretofore discussed, there is no necessity for repeating the same.  