In the Matter of the Application for the Probate of the Alleged Last Will and Testament of George R. Finch, Deceased. Helen E. Foulds and Others, as Executors in Said Alleged Will Named, Proponents, and Harriet E. Finch and Others, as Legatees and Devisees, Appellants; Jeremiah T. Finch, Contestant, Respondent

In the Matter of the Application for the Probate of the Alleged Last Will and Testament of George R. Finch, Deceased. Helen E. Foulds and Others, as Executors in Said Alleged Will Named, Proponents, and Harriet E. Finch and Others, as Legatees and Devisees, Appellants; Jeremiah T. Finch, Contestant, Respondent. Third Department, November 14, 1906. Will — testamentary incapacity and undue influence — bequest to attorney— when Appellate Division will order questions to be tried by jury. Upon an appeal from a judgment of the surrogate refusing the probate of a will on the ground of undue influence and testamentary incapacity, if the Appellate : Division is not satisfied with the decision of the surrogate,' and if doubts exist as to his conclusions ■ drawn from the evidence, the Appellate Division will reverse the decision and order the issues to be tried before a jury. When a will is drawn by one in confidential relations with the testator, as an . attorney, and contains, a bequest to the attorney, the instrument is looked Upon with suspicion, and the burden is upon the legatee to show that the tes-, iator understood the contents of the will and that it expressed his uninfluenced intention. . ■ When the relations of a testator to liis • attorney are unusually close, while the fact necessitates care on the part of the. court to see that the instrument expressed the intention of the testator, the nearness of the relationship also furnishes a substantial reason for a gift to the attorney. When on a proceeding for the probate of a will in which a gift is made to' the testator’s attorney and which ignores a brother of the testator, it appears, that ’. before the execution of the instrument the testator was. seen reading a paper - resembling the Will; that he suggested an amendment thereto, which was sub sequently made; that the brother of the testator was a man of property equal to that of the testator; that the latter was a man of extensive business connec- , tions and of great force of character; that there was some evidence of strained relations between the testator and his brother; that the widow of the testator and his sister, who were the chief beneficiaries, and who would have taken even a larger amoünt had- probate been refused, were nevertheless in favor of probate,, a decision of the surrogate refusing probate on the ground of undue influence on the part of the attorney is, so unsatisfactory that the Appellate ., Division will order the. issue to be tried before a jury. - So, too, a finding of the surrogate that the testator lacked testamentary capacity is unsatisfactory when no physician or other.person who saw the testator at the time of the execution of the will gave any evidence of lack of testamentary capacity, but, on the contrary, he is shown to have transacted, other-legal business subsequent to the execution of the will, and the only evidence as to testamentary incapacity is expert testimony based on hy pothetical questions. Under such circumstances the Appellate Division will order the issue of testamentary incapacity to be tried before a jury; Appeal, by the proponents, Helen E. Foulds and others, as exec- • utors,. etc., from a decree of the Surrogate’s- Court of the county of Warren, entered in said Surrogate’s. Court on the 9th day of July, 1906, refusing to admit to probate á paper propounded as the last will and testament of George E. Finch, deceased. George E. Finch died on tlie 12th day of January, 1906. He left a widow,. Harriet E. .Finch, but no children. Ilis- next of. kin are his sister, Helen E. Foulds, and a brother, Jeremiah T. Finch. This brother was not remembered in the will, and successfully, contested its probate before the surrogate.- In the 1st paragraph of the proposed will the testator’s debts are directed to be paid. In the 2d paragraph the residence ánd its equipments are given to his wife, Harriet E. Finch, so long as she shall remain unmarried and his widow. In the 3d paragraph an annuity of $25,000 is given to bis said wife as long as she shall remain unmarried. In the 4th paragraph various legacies, amounting to about $18,000, are given to various persons. In the 5th paragraph certain wild and forest land of the value of about $30,000 is given to John Anderson, Jr., Albert Newcomb and George N. Ostrander. Certain other wild and forest land is directed to be conveyed to Finch, Pruyn & Co. upon payment of taxes. In "the 6th paragraph Mrs. Thomas II. Foulds and George N. Ostrander are named as trustees of the will. In the 7th paragraph, upon the death or remarriage of his wife,' his property not otherwise disposed of is given “ to my said sister, Mrs. Thomas H. Foulds, and to my friend, George N. Ostrander, in fee absolute.” In the 8th paragraph is given a power to sell and convey real estate. In the 9th paragraph the provisions for his widow are stated to be in lieu of dower. In the 10th paragraph* the trustees are directed after the death or remarriage of the widow to assign to John Anderson, Jr., and Albert Newcomb, if they be alive, each “ Fifty. Thousand ($50,000) Dollars of the common stock of Finch, Pruyn & Company.” George E. Underwood, Mrs. Thomas H. Foulds and George N. Ostrander were then named as executors of his will. The execution of the will was witnessed by Maude Bacon Curtis, residing at Glens Falls, and Sherwood La Fevre, also residing at Glens Falls. The estate amounted to about $600,000. The surrogate has held in effect that at the time of the execution of the alleged last will George It. Finch was not of sound and disposing .mind; secondly, that the proponents have failed to prove that the will was executed without undue influence on the part of George N. Ostrander, who drew the will. From the decree refusing probate this appeal has been taken. King & Angell, for the proponents, appellants. Edward M. Angell, for the appellants Harriet E. Finch and others. William L. Kiley, for the appellants Anderson and Newcomb, Edgar T. Brackett of counsel, for all appellants. J. A. Kellogg, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: In Matter of Warnock (103 App. Div. 62) this, court has said that “ The determining rule for the" disposition of these cases is thus expressed in the head note of Matter of Tompkins (69 App. Div. 474): ‘ Where, on an appeal to the Appellate Division from a decree of the Surrogate’s Court, made in a proceeding for the probate of a will, it appears that the disposition, which should be made bf the questions of fact presented by the evidence given is not free from doubt, and the result reached in the Surrogate’s Court is not entirely satisfactory, the Appellate División will send the case to a Trial Term for a jury trial.’ ” 'Upon an appeal from a judgment of the Supreme Court the Appellate Division is not authorized to reverse upon the ground that the judges sitting would, have otherwise decided if sitting at Special or Trial Term'. Upon such an appeal to authorize a reversal upon the facts, the judgment must be so far against the weight of evidence as to indicate prejudice.or bias' upon the part of- the judge or jury making the determination appealed from. Upon this appeal, however, the Appellate Division must be satisfied with the decision reached, and if doubt exists as to the conclusion which - tlie surrogate has drawn from the evidence and the appellate court is of opinion that the determination of. the jury should fairly be taken upon the issues' the decree will be reversed and the questions sent to a jury for their determination. This estate is a. large one. The legatees Anderson- and New-comb are interested to the extent of $50,000 that'their legacies shall not be cut off by reason of any fault on the part of Ostrander. I cannot see that either the widow or the sister can have a material interest as to whether the will is proven or not proven: If this property passed as intestate property the widow Would' get absolutely about $250,000 from the personal estate in addition to her interest in the real estate. This might well, be claimed to. be a better - interest than the" estate given to her by the will, which is to absolutely cease upon her death or remarriage. The sister would at once get a quarter interest in the estate, amounting to about $150,000. Notwithstanding that the interest of the Widow and the si -iter might well be deemed as great to defeat the will as to sustain it, it is a fact, not without significance, that they are both here approving of this will and seeking to sustain.it as the intelligent expression of the wishes of George R. Finch as to the disposition of his property. The two material questions to be reviewed upon this appeal are, first, whether at the time of the execution of the alleged will George R. Finch had a disposing mind ; secondly, whether the will was obtained by undue influence exercised upon the deceased by George U. Ostrander, the attorney who drew the will. Discussing these questions in the inverse order stated, the contending counsel differ little as to the rule of law by which they are to be determined. Where a will is drawn by one in a confidential relation, as an attorney, somewhat more is required than mere proof of thé execution of the will according to the form of law. Confidential relationship existing presents large opportunity for fraud and imposition, and for that reason it has been justly held that the courts look with suspicion upon instruments so executed, and the courts are jealous to protect the rights of the lawful heirs as against any undue influence that may have prompted the execution of the instrument. A will so executed for the benefit of an attorney who drew the will was from public policy void under the civil laws. Under our law, however, the rule is changed, and while the will does not become void by reason of that fact, the court requires clear proof that the party understood the contents of the will, and that the will expresses the uninfluenced intention of the testator. Did the deceased know the contents of this will ? The proof is fairly convincing that after the will was first drawn it was given to the deceased, who read it over. He was seen with a paper resembling the will, with his glasses on reading the same. He directed an addition made to the will, which direction could not have been given without a knowledge of its contents at the time. 'It is not specifically proven that after this alteration or correction was made the deceased again read the will. The respondent contends that the will as first presented to the deceased might have contained only the first six paragraphs, and the provision thereafter inserted for the benefit of Ostrander might not have been known to him at the time of the execution of the will. While this is possible, it is hardly probable. If the will, when it was' presented to him and . examined, contained only the .six paragraphs it would have been in ho way complete. The will when examined may fairly be presumed to have been one complete in. itself, and the inference is not by any means - forced that the 10th paragraph is the one that was afterwards inserted by direction, of the testator. As to this 10th . . paragraph, which contained no legacy in behalf of the attorney, it is not necessary to make specific proof that that paragraph was read by the' testator. As to that paragraph, it may be fairly implied that the testator knew its contents by reason of the fact of his signing the will after it' was inserted. It is, we think, an unwarranted , assumption that this will did not contain the legacy to Ostrander when it was-read by the deceased, and that the deceased had not full knowledge of its contents at the time that he signed it. As to the charge of the exercise of undue influence, there is.nothing to sustain such .a charge except the fact of the insertion of the beneficial provision in the will. As against such inference are arrayed all the circumstances under which the will was executed. Mo one was specifically excluded from the room when directions were given for the preparation of the will. The will was executed only two hours before the' operation was performed during which he died. The necessity for the operation had already been determined upon.' The deceased was somewhat deaf. The attorney could.hardly have used persuasion to have his name included in the will without detection by'persons passing in and out of the room arid through the room as preparations were being made for the operation. An attorney would have .been bold indeed under such-circumstances to have attempted to influence the making of a will for his own benefit. Again, there was no effort on the part of Ostrander to keep the possession of the will after its execution. • Had he fraudulently inserted his name as legatee and devisee he would n'ot have asked the deceased what he should do with the will after its execution.. He would have taken possession, and the will never, would have been seen if Finch had recovered. As it was, he handed it over to the confidential.clerk of fhe deceased, where discovery of any fraud would have been inevitable. Moreover, the 'relations between Finch a'nd Ostrander were unusually close. While the intimacy of that relationship emphasizes the confidential relations existing and the necessity of a jealous care on the part of the court to see to it that the instrument expresses the exact intention of the testator, it also establishes substantial reason for the inclusion of the name of the attorney as a substantial beneficiary in the will. The widow was only about forty years of age, about the age of the attorney. It is doubtful if the residuary clause would become effective during the life of the attorney, although it is not impossible that the residuary legatees would have, prior to the death or remarriage of the widow, benefit of the excess of income over $25,000 given to the widow during life. But the most convincing answer to the claim of undue influence on the part of Ostrander would seem to lie in the character of the man himself, whom he is charged with influencing. ,The deceased was prominent as a man of extensive business connections and ás a man of force and character He was president of • Finch, Prnyn & Co.', a corporation engaged in the manufacture of lumber and paper, and was either director or stockholder in the Imperial Wall Paper Company, Schroon Biver Pulp and Paper Company, the Bacquette Falls Land Company, the National Bank of Glens Falls and several other corporations. He was prominent in politics, having been candidate for State Treasurer upon the Democratic ticket and a member of .the Democratic State committee. Men of experience in business affairs are not often unduly influenced in the making of wills. It is ordinarily the guileless men who are influenced to forget the claims of kindred. His brother, the contestant here, was in need of nothing. His property was equal in amount to that of the deceased. There is some evidence of strained family relations, which, if true, would furnish a motive for the deceased to omit his name from his will. It is hard to believe that the deceased made a will expressing other than his deliberate wish unless he was so far unbalanced by his sickness as to be incompetent to make a will at all, which will be discussed further on in this opinion. The attorney who drew this will in his favor has been criticized for not calling in another attorney to draw the will. It has been noticed that about eight o’clock he went into an attorney’s office and got some blank wills, upon one of which he afterwards drew .the will of the deceased. If he at that time knew that he was to be one of the prominent legatees, his act in himself drawing up the will'could hardly be characterized with condemnation too strong. If he did not know at that time that he was to be one of the principal beneficiaries it may well Be that the urgency was So great and ' the time so short that he should deem, it expedient and necessary to himself draw the will rather than .call in a third party.- He cannot be commended for failing to have some other party present made -acquainted with the fact that this will was to a substantial degree in li-is favor. But after all the ultimate question to be determined is whether tlie action of the attorney in procuring the execution of this will was a fraudulent act, improperly influencing the mind of the testator. And while all these facts-are material to be considered upon this question, we are not entirely, satisfied under all the circumstances of the case that fraud was established. The remaining question is as.to the competency of this testator to make a will at the time the will was made. I do not intend to review in this opinion in detail the testimony upon that question. It would seem to me sufficient to entitle the proponents of the will to the verdict of a jury that neither a physician nor a layman who saw him upon that last morning has given evidence to the effect that he was not competent to make a will or has given evidence of a single act upon his part which would indicate a lack of full appreciation of what he was doing. After the making of this will he checked up a list of taxes handed him by Ostrander and wrote upon them a direction to his clerk to make out a note and pay the same. All his declarations made upon that morning both before and after - the execution of the will would seem to indicate a clear mind and the full appreciation of his situation. It is true that upon hypor thetical questions expert physicians have sworn that the -man was . incompetent to make the will. That class of evidence is most unsatisfactory, however, and in view of what was said and done upon that morning by the -deceased we have no hesitation in saying that we are not entirely satisfied with the conclusion of the learned surrogate upon the question of his competency to make a will or at least that we would be better satisfied with the conclusion of a jury upon the two questions here involved. All concurred. Decree of surrogate reversed upon the facts and the issues ordered to be tried by a jury at the next Trial. Term of the Supreme Court .in Warren county, with costs of the appeal to abide event of the new trial. The material questions to be submitted to the jury upon such trial are: First. At the time of the making of the alleged will did George R. Finch understand the nature and extent of his property and the nature and quality of the claims to his bounty of his brother and any other persons ? Second. Was the will procured through undue influence or fraud exercised upon George R. Finch by George A. Ostrander, named as a legatee in said will \ N