to determine and cut off their rights, and to conclude them upon the election which the plaintiffs made by bringing this action, it was necessary that they should be parties. Although it is true that the infants were not to take the property itself, but only an interest in the proceeds when it was sold, if they survived those entitled to receive the same at the date of distribution, still the question of the time of sale, in addition to the other questions, was important. While the present sale was of advantage to the life tenants, it might be a disadvantage to the remaindermen, considering the situation of the property, which, if retained, might greatly enhance in value, and be worth much more than it now is, if sold hereafter upon the death of the last surviving life tenant. They may have been powerless to prevent such sale at this time, but on the question of whether or not it should now take place they were entitled to be heard.

The questions, therefore, of the construction of the will, of the right to maintain the action, and of the time of the sale, were involved; and though it be concluded that upon all these the infants could not have changed the judgment rendered, or have prevented the sale from taking place, still, as necessary parties, they were entitled to be heard upon these questions, and the attitude which they would in all probability have assumed would be in hostility to a sale at the present time. Thus having a right to their day in court, and the right to be heard upon the questions involved, even though it may be concluded (which it is unnecessary for us to determine) that they could not make any effective resistance to the sale at this time, they were entitled to appear; and the rule required that they should, upon such a hearing, be represented, and have the judgment and advice of a guardian in no way connected in business with the attorney who had rights which were or might be adverse in any way to theirs. If it be conceded, as we think it must, that the conduct of the plaintiffs in forcing a sale of the property at this time was to the advantage of the life tenants, and likely to result in injury to the remaindermen, and, if further, there was presented a question upon which the infants were entitled to be heard, as necessary parties, it follows, we think, regardless of whether they could or could not eventually succeed in maintaining their position, that they were entitled to their day in court, and entitled to be represented by guardians who had no connection in business with those who were concerned in maintaining an adverse position. The fact that the judgment rendered, if affirmed, shows that they could not prevent the sale, and could not have changed the judgment, we regard as immaterial upon the question which we are called upon to decide, because if, in an action in which a judgment is rendered, one is a necessary party, and entitled to be heard, he cannot be deprived of those rights, even though it be concluded that the result, without his presence and without a hearing, would be precisely the same. Undoubtedly the conduct of those who applied for the appointment of the guardians, as well as their consenting to act, was affected by the opinion they entertained that the interests of the infants could not be adverse, because they would be unable to prevent at this time a sale of the property, and this opinion has been sustained by

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the judgment which has been entered in the action. All this, however, as we have endeavored to point out, is but begging the real question, which turns, not upon what may ultimately be decided as to the infants' rights, but upon whether or not they were necessary parties, entitled to be heard in an action in which their rights and those who brought them into court are not identical.

Where, therefore, as here, the interests of the life tenants and the interests of the infants as contingent remaindermen are likely to conflict, and an action is brought in which these conflicting interests are involved, and to which the infants are necessary parties, we find no avenue of escape from the conclusion that unless the infants are represented by guardians who possess the necessary qualirications, and are free from the objections stated in the rule, the situation is the same as though no guardian had been appointed, and no hearing had in their behalf. The judgment thus being voidable as to some of the infant defendants for the reason that they were not represented by duly qualified guardians ad litem, it follows that this objection of the purchaser is good, and that he is entitled to be relieved from his bid.

We think that the order appealed from must accordingly be reversed, with $10 costs and disbursements, and the application of the purchaser to be relieved granted, with $10 costs. All concur.

In re RINTELEN'S WILL.

(Supreme Court, Appellate Division, First Department. December 5, 1902.) 1. WILLS-DEVISE TO ATTORNEY-UNDUE INFLUENCE-Evidence.

An inebriate executed a will, devising to proponent, who was his attorney, one-half of his estate. Proponent had rendered him little service except to pay him small sums daily from testator's money, in his hands, which was largely used for liquor. On application for probate, the only evidence was that of proponent's clerk, who was a witness to the will, and the other witness, who was testator's tailor. Both witnesses testified to capacity, but the clothier testified that during the execution testator did not say over 10 words, and all that he said was "Yes" to questions asked by proponent, and the request to the witnesses to sign. There was no evidence that testator had ever intended to make a will, or had given any directions with regard thereto. Held, that the evidence was insufficient to sustain the burden of proof which was on proponent to show that the will was testator's free, intelligent expression of his wishes, and probate was therefore properly denied.

Appeal from surrogate's court, New York county.

Application for the probate of the will of William A. Rintelen, deceased. From a judgment denying probate (75 N. Y. Supp. 935), Harry Overington appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Francis B. Chedsey, for appellant.
Gormly J. Sproull, for respondent.

INGRAHAM, J. The proponent was the executor of what purported to be the last will and testament of the decedent, and he applied

to have the instrument probated. The deceased had no children, his next of kin being a sister and an infant child of a deceased brother. The next of kin opposed the probate, alleging that the testator had not testamentary capacity; that the will offered for probate was not the free act and deed of the deceased, but was procured from him by undue influence; and that the said paper writing was not subscribed, published, and attested as and for the last will and testament of the decedent, in conformity to statute. One of the subscribing witnesses to the will-a clerk of the proponent-testified that the will was executed in the presence of the proponent, who had acted as an attorney and agent for the deceased for some time before his death; that the proponent was present at the time of the execution of the will; that the will was read over to the deceased by the proponent, and the deceased held the paper in the position that a person would hold it when reading it; that after that was done he sat down, and signed the will, and then declared it to be his last will; that the attestation clause was read over to him by the proponent, and the deceased asked the two witnesses to sign; that at the time the testator signed the will he was not intoxicated; that his mental condition was very good indeed, and he was sober, and of sound mind, when he signed the will; that there had been some $1,500 left with the proponent, who was to pay it out when the deceased came for it; that the deceased came in almost every morning to get some money on account of that principal; that he was always quarreling with his sister, one of the contestants; that the instrument offered for probate was in the handwriting of one of proponent's clerks. The other subscribing witness testified that the proponent read some parts of the will over, and then the deceased signed it, and after he had signed it the proponent asked him if that was his will, to which the deceased replied, "Yes," and then asked the witnesses to sign the will; that he said this after the proponent had asked him if this was his will; that the deceased was in the habit of getting drunk, and of purchasing clothes from the witness, who was a dealer in clothing, upon the order of the proponent, the clothes being charged to proponent, and paid for by him; that when the deceased executed this instrument he did not say over 10 words,-all that he said was "Yes," and the request to the witnesses to sign; that the whole interview did not last over 15 minutes. These two witnesses had been previously examined before the surrogate's clerk, and their testimony varied in some particulars, but they testified to the substantial facts required by the statute. Upon the examination of these two witnesses the proponent rested. Evidence was then introduced by the contestants, which tended to show that the deceased lived in a cheap lodging house, paying a dollar a week for his room; that he was drunk almost every night, so that the porter had to put him to bed. There was also evidence tending to show that when he was sober he seemed to understand himself, and what he was about, and there was no evidence of a lack of his testamentary capacity, or that the making of this will was suggested to him by anybody. The learned surrogate, in his opinion, based his decision upon the personal relations that existed between the deceased and the proponent, and held that the circumstances were such as to make a case which required explanation,

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and which imposed upon the proponent the burden of satisfying the court that the will was the free, untrammeled, and intelligent expression of the will of the testator; that this explanation had not been furnished, and the burden of proof was not sustained.

The only question on this appeal is whether the relation that existed between the deceased and the proponent, the executor and principal beneficiary, and the facts surrounding the execution of the instrument, was such as to cast upon him the burden of proving that the decedent understood the situation, intended to make the disposition of the property expressed in the will freely and without the improper influence of the principal beneficiary at whose instance the will was executed, and expressed such intention by the execution of the instrument. That the proponent acted in a peculiarly intimate and confidential relation with the deceased is clear. He had in his possession an amount of money, which he gave to the deceased in small sums, necessary for the gratification of his appetite for drink and for his support from day to day. It is not stated in what form the balance of the deceased's property was invested, but the relation that existed between him and proponent placed the latter in a situation that gave him peculiar power to impose his will upon a man who seems to have had no association with his relatives. The proponent was not only the deceased's attorney, but also his banker and general agent, from whom he received the means of living from day to day. When this instrument was executed, the decedent was in the office of his attorney and confidential agent, the only ones present being in the employ of his attorney, until the clothing dealer was sent for as a witness. There was nothing said in the presence of this witness to indicate that the decedent really had an intention of making such a disposition of his property, the conversation in the presence of this witness being simply answers to the proponent's questions. The decedent, so far as appears, had no independent advice as to the propriety of making such a disposition of his property, had not before expressed an intention of making such a disposition, and it does not expressly appear that the portion of the will which made his attorney a legatee was read over in the presence of the only witness who was not directly connected with the principal beneficiary. The will appointed the attorney and agent sole executor, and left him one-half of the testator's property. In Re Smith, 95 N. Y. 516, this question was discussed by Judge Andrews, delivering the opinion of the court of appeals, and the principle there established, we think, is conclusive in this case. There the proponent was the chief legatee under the will propounded for probate, was a lawyer, who drew the will, was the legal adviser of the decedent, and was the residuary legatee. Judge Andrews says:

"Undue influence, which is a species of fraud, when relied upon to annul a transaction inter partes, or a testamentary disposition, must be proved, and cannot be presumed. But the relation in which the parties to a transaction stand to each other is often a material circumstance, and may of itself in some cases be sufficient to raise a presumption of its existence. Transactions between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, are illustrations of this doctrine. Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by, the

one holding the dominating situation, naturally excite suspicion; and, when the situation is shown, then there is cast upon the party claiming the benefit or advantage the burden of relieving himself from the suspicion thus engendered, and of showing either by direct proof or by circumstances that the transaction was free from fraud or undue influence, and that the other party acted without restraint, and under no coercion, or any pressure, direct or indirect, of the party benefited. The rule to which we have adverted seems, however, to be confined to cases of contracts or gifts inter vivos, and does not apply, in all its strictness, at least, to gifts by will. ** The mere fact, therefore, that the proponent was the attorney of the testatrix, did not, according to the authorities cited, create a presumption against the validity of the legacy given by her will. But, taking all the circumstances together, the fiduciary relation, the change of testamentary intention, the age and mental and physical condition of the decedent, the fact that the proponent was the draftsman and principal beneficiary under the will, and took an active part in procuring its execution, and that the testatrix acted without independent advice,-a case was made which required explanation, and which imposed upon the proponent the burden of satisfying the court that the will was the free, untrammeled, and intelligent expression of the wishes and intention of the testatrix."

In this case all the facts adverted to by the learned judge were present, except the change of testamentary intention; there being here no evidence of the intention of the decedent prior to the execution of the instrument offered for probate; and in this case we have the additional fact that the decedent had been receiving from the proponent, from day to day, the money necessary for the gratification of his appetite and means of existence, placing the deceased in a position of dependence upon the proponent, and there is no evidence that the deceased gave instructions to prepare a will to any one. The entire absence of independent advice, or of instructions as to how the will should be prepared, or of knowledge of its contents, except so far as the instrument itself, or some part of it, was read over in his presence before its execution, and the absence of the communication of an intention to make a will to those who would be the natural objects of his bounty, are circumstances which are most important in considering the effect to be given to the proof of the actual execution of the instrument, and, we think, bring the case clearly within that class where there is imposed upon the proponent the burden of proving by evidence other than that of the formal execution of the instrument that it was the free, untrammeled, and intelligent expression of the wishes. and intention of the decedent. That burden being imposed upon the proponent, the case is bare of evidence that would justify a finding, aside from the formal execution of the instrument, that the decedent ever intended to make the disposition of the property expressed by the instrument; and without such affirmative evidence we think the learned surrogate was entirely correct in refusing to admit the will to probate. As was said by Judge Andrews in Re Smith, supra:

"The law is not so impracticable as to refuse to take notice of the influence of greed and selfishness upon human conduct, and in the case supposed it wisely interposes by adjusting the quality and measure of proof to the circumstances, to protect the weaker party, and, as far as may be, to make it certain that trust and confidence have not been perverted or abused.”

In cases where a testamentary disposition is made of which those. interested in the decedent's property have no knowledge until after