
    Henry G. K. Heath, Appellant, v. Anna Catharina Koch and Others, Respondents.
    
      Action to determine the validity of a will—presumption from the surrogate’s decree — not changed by the fact that no provision is made for one of the testator’s sons — what undue influence will invalidate a will.
    
    In an action brought under section 2653a of the Code of Civil Procedure to determine the validity of a will, the decree admitting the will to probate is prima facie evidence of its due attestation, execution and validity, and the burden of overcoming such presumption is upon the party asserting its invalidity.
    "The presumption in favor of the validity of a will is not affected by the fact that the testator gave all of his property to his widow, who was his second wife, and his children by his second marriage, to the exclusion of a child by the" first marriage.
    The undue influence which will 'invalidate a will must be such importunity, influence or power as deprived the testator of the free exercise of his intellectual powers.
    Appeal by the plaintiff, Henry G-. K. Heath, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 17th day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.
    
      Henry G. K. Heath, appellant, in person.
    
      Emanuel J. Myers, for the respondents.
   McLaughlin, J.:

On the 5th of September, 1900, Henry C. F. Koch died, leaving a will which has been admitted to probate and letters testamentary issued thereon. He left him surviving a widow and three sons, the plaintiff, a son by a former marriage, and the defendants William and Erduin. By his will he gave all of his property to his widow and the. two sons by his second marriage, no provision whatever being made for the plaintiff, for the reason, according to the language of the testator, as stated in the 12th clause of the will, that he considered “he was amply provided for by his grandmother, the late Mrs. Sarah Ann Heath.” The plaintiff, feeling aggrieved, brought this action under section 2653a of the Code of Civil Pro- " cedure, to test the validity of the will, charging in substance that the same was invalid in that it was procured by fraud and undue influence. At the trial, at the close of plaintiff’s case, the complaint was dismissed and from the judgment thereafter entered this appeal was taken.

By the terms of the section of the Code cited, the decree of the surrogate admitting the will to probate is prima facie evidence of its due attestation, execution and validity (Cook v. White, 43 App. Div. 388), and the burden of overcoming the same is upon-the one asserting the invalidity. (Dobie v. Armstrong, 160 N. Y. 584.)

A consideration of the record demonsti’ates that the plaintiff entirely failed in his attack upon the will. There is absolutely nothing' which indicates that any undue influence, or, in fact, any influence whatever was exerted over the testator when he made the will, and the only inference which, could possibly be indulged in in this respect is that no provision was made for the plaintiff. But no obligation rested upon the testator to make any provision for the plaintiff, and it has been distinctly held that the presumption of validity of a will is not affected by the failure of a parent to provide for a child. (Dobie v. Armstrong, supra.) That undue influence which will invalidate a will must be such importunity, influence or power as deprives the testator of the free exercise of his intellectual powers. (Gardiner v. Gardiner, 34 N. Y. 155; Children’s Aid Society v. Loveridge, 70 id. 394; Coit v.. Patchen, id. 533; Buchanan v. Belsey, 65. App. Div. 58.) There was, therefore, no evidence whatever which tended to overcome the presumption as to the validity of the will afforded by its probate, and had the matter been submitted to the jury and a verdict rendered in favor of the plaintiff it would have been the duty of the court to set it aside as against evidence. In addition to. this, we think the evidence affirmatively established not only that the wil was not the result of undue influence and fraud practiced upon the testator, but that he deliberately excluded the plaintiff from a participation in his estate for the reason that he had acquired from his paternal grandmother a large sum of money, and also because he he had changed his name from Koch to Heath. In 1886 the testator made a will in which he stated that he did not give his son Henry (this plaintiff) any share of his estate, for the reason that he considered. him amply provided for by his grandmother,” and in the 1894 will (the one admitted to probate) he stated that he did not give him anything because he considered he was amply provided for by his grandmother,” It is fair to infer from the use of the word was ” in the connection in which it was used, that the testator knew, as claimed by the plaintiff, that a large portion of the money acquired from the grandmother had been lost by speculation or otherwise, and there appears in the last will another reason why no provision was made for the plaintiff, and that was the change in the name, because it will be observed ..that a provision is . inserted that if .the. widow and the two sons by .the- second marriage died prior to the death of the testator, without issue,, their .the. testator’s property was to go to the plaintiff, but only on condition that he again resume the name of Koch.

■ The trial court, therefore, was right in dismissing the complaint and the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien, and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  