Statement of case.

de novo in the appellate courts. (Foote v. Beecher, 78 N. Y. 158; Clapp v. Fullerton, 34 id. 190; Children v. Loveridge, 70 id. 409, 410.) The legal presumption of imposition, fraud and undue influence arising from the relation of the parties, and the age, infirmity, disease and incapacity of the testatrix, not having been overthrown by affirmative evidence, but strengthened thereby, probate should have been denied. (Rollwagen v. Rollwagen, 63 N. Y. 504; Tyler v. Gardner, 25 ́id. 581; Swenarton v. Hancock, 9 Abb. N. C. 326, 364; Jarman on Wills, 38; Mowery v. Silber, 2 Bradf. 133; Foreman v. Smith, 7 Lans. 443.)

J. Newton Fiero for respondent. The determination of the surrogate, as affirmed by the General Term, is conclusive and final upon all questions of fact in the case and will not be reviewed by this court. (In re Probate Will of Higgins, 18 Weekly Dig. 293; Davis v. Clark, 87 N. Y. 523; In Matter of Ross, id. 514; Marx v. McGlynn, 88 id. 369.) Witnesses may characterize as rational or irrational "the acts and declarations to which they testify." (Clapp v. Fullerton, 34 N. Y. 190; De Witt v. Barley, 17 id. 347; Abbott's Trial Evidence, 118, note 3; Delafield v. Parish, 25 N. Y. 38; Seamen's Friend Soc. v. Hopper, 33 id. 641; Grattan v. Met. L. Ins. Co., 80 id. 281; Edington v. Mut. L. Ins. Co., 67 id. 185; Snyder v. Sherman, 11 Weekly Dig. 158; S. C., 23 Hun, 139; Foote v. Beecher, 78 N. Y. 158; Taylor's Med. Jur., 680; Redfield on Wills, 116, note 19; Horn v. Pullman, 72 N. Y. 276; Snyder v. Sherman, 23 Hun, 141; 1 Redfield, 183.) The evidence of Dr. Geo. C. Smith, as to the delirious condition of the decedent some time before the execution of the will, presents the question as to the nature of that delirium and as to whether it was continuous. (1 Redfield, 116; Ray's Med. Jur. of Insanity, SS 213, 218; Brogden v. Brown, 2 Addams, 441; Evans v. Knight, 1 id. 229; 1 Beck's Med. Jur. 822.) A party seeking to avoid a will on the ground of undue influence must show that the testator was subjected to such influence as amounted to moral coercion. The fact that a SICKELS VOL. L.

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Opinion of the Court, per ANDREWS, J.

testatrix changed her mind in substantial respects is not conclusive, and does not show she was incompetent or under restraint. (Dougall v. Gates, 14 Weekly Dig. 501; Coit v. Patchen, 77 N. Y. 533; Horn v. Pullman, 72 id. 269; Post v. Mason, 91 id. 549; 23 Alb. L. J. 227; Marx v. McGlynn, 88 N. Y. 357; Children's Aid Soc. v. Loveridge, 70 id. 389, 393, 409.) A case on appeal, like the present one, is to be determined on the competent evidence submitted without considering such as may be incompetent. (Snyder v. Sherman, 23 Hun, 139; Brick v. Brick, 66 N. Y. 144; Foote v. Beecher, 78 id. 155; Hewlett v. Wood, 55 id. 634; Matter of Ross, 87 id. 520; Heir v. Grant, 47 id. 278; 90 id. 659; Code of Civ. Pro., § 2545; Copeland v. Van Alstyne, 9 Weekly Dig. 407; Matter of Ross, 87 N. Y. 521; Post v. Mason, 91 id. 549.)

ANDREWS, J. 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. This rule does not proceed upon a presumption of the invalidity of the particular transaction, without proof. The proof is

Opinion of the Court, per ANDREWS, J.

made in the first instance when the relation and the personal intervention of the party claiming the benefit, is shown. 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. (Nesbit v. Lockman, 34 N. Y. 167; Cowee v. Cornell, 75 id. 91; 31 Am. Rep. 428; Marx v. McGlynn, 88 N. Y. 357.)

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. It has been held that the fact that the beneficiary was the guardian, attorney, or trustee of the decedent, does not alone create a presumption against a testamentary gift, or that it was procured by undue influence. (Coffin v. Coffin, 23 N. Y. 9; Post v. Mason, 91 id. 539; 43 Am. Rep. 689; Parfitt v. Lawless, L. R., 2 Pro. & Div. 462.) 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. (See note to Huguenin v. Baseley, 2 W. & T. Leading Cas. in Eq. 1156; Redfield on Wills, 515, and cases cited.)

The surrogate reached a conclusion adverse to the contestant upon both grounds upon which the validity of the will was questioned. He found that the testatrix had testamentary capacity and that the will was not procured by any fraud or undue

Opinion of the Court, per ANDREWS, J.

influence. We think there was evidence to support the conclusion of the surrogate upon both points. But upon neither was the case free from doubt. We do not intend to enter into a discussion of the facts. We have reached the conclusion that the judgment oughtafo be reversed for errors in the admission of evidence on the question of undue influence, which was calculated to, and which we cannot say may not have had a material influence upon the determination of the surrogate.

The proponent was examined as a witness in his own behalf. He was permitted to testify to the contents of a lost will of the testatrix, drawn by the proponent and executed by her twenty years before her death, by which she gave her estate to a child of the proponent, since deceased. The existence and execution of this will, its loss, and its contents, were proved by his testimony alone. The proponent was also allowed to testify that a memorandum produced was made by him on the 10th of September, 1880, three days before the execution of the will in question, at the house of Mrs. Peters, where the testatrix resided, and that the will drawn by him on that day (but dated August 10, 1880), was drawn from the memorandum. The will in question was substantially a transcript of the will of September 10th. The proponent was the draftsman of this will also, and he procured it to be executed after his attention had been called to the point, whether being a subscribing witness to the will of September 10th, he was competent to take under its provisions. The contestant objected to the proponent's being allowed to testify to the contents of the lost will, and also in respect to the memorandum of September 10th, and to the fact that the first will was drawn therefrom, on the ground that the evidence related to personal transactions and communications between the witness and the decedent as to which he was incompetent to testify under section 829 of the Code. The surrogate overruled the objection and admitted. the evidence, and the contestant excepted.

We think the objection as to both branches of the evidence was well taken. The drawing of the lost will by the proponent and its execution by the testatrix, presumptively involved a

Opinion of the Court, per ANDREWS, J.

personal transaction between them. The instructions must have been obtained from the testatrix by the witness directly 'or through an intermediary. But the circumstances strengthen the natural presumption (which is not excluded by any affirmative proof), that it was drawn from instructions personally communicated by the testatrix to the witness. They resided in the same place; the testatrix was a friend and frequent visitor at the house of the proponent, and his child was the principal beneficiary under the will. The witness derived his knowledge of the contents of the will from his relation to the transaction and to the testatrix. We think there can be no doubt that he was precluded by section 829, from testifying to the contents of the will. It was evidence "concerning a personal transaction or communication between the witness and the deceased."

The evidence in respect to the memorandum, and that the will of September 10, 1880, was drawn from it, was also clearly in contravention of section 829. The proponent testified that he was sent for by the testatrix on the evening of the 9th of September, and that he went to see her on the morning of the 10th and had an interview with her. The inference is irresistible, although the fact is not expressly proved, that the memorandum was made by proponent at that interview and contained her instructions for the will of the 10th of September. The evidence of the proponent that he made the memorandum and drew the will therefrom, was equivalent to permitting him to testify that the will was drawn from and in pursuance of instructions given him by the testatrix, and was plainly evidence concerning a personal transaction or communication between them.

It is obvious that the testimony of the proponent as to the contents of the lost will and in respect to the memorandum, bear directly and with great force upon the issue of undue influence. The evidence in respect to the memorandum was especially important. It was cogent proof that the testatrix understood the contents of the will of September 10th, of which the will of September 13th was substantially a republication;