#### Matter of the Contested Will of Mary E. Barbineau, Deceased.

(Surrogate’s Court, New York County,

May, 1899.)

Will — Not avoided by a second will executed just before death — Bur- ' den of proof as to testamentary capacity.-. .

Where a prior will executed with deliberation. and while the tess tatrix was in good health is sought to be overthrown by a later will, containing different ' provisions, executed twelve days before her death and when she had become enfeebled by illness, the court will inquire most minutely into the circumstances attending the execution of the later will, will require its proponent to show that the testatrix had testamentary' capacity at the time qf its execution, and, failing such proof, will reject the later will.

Proceedings upon probate of a will.

Thomas W. Burke (James A. Gray, of counsel), for proponent.

Jeroloman & Arrowsmith, for contestants.

Varnum, S.

The trial herein was conducted before Surrogate Arnold, and it has now been stipulated that the case be decided *418by me without a new hearing. The importance of the issues involved, together with the great number of conflicting statements scattered through the voluminous testimony that was taken, have caused me to feel keenly the disadvantage of being compelled to weigh evidence without seeing and hearing the witnesses who produce it, and I have, therefore, been at pains to give the minutes and the exhaustive briefs submitted the most careful study before arriving at my decision. ' Decedent died on May 15, 1894. She married the contestant in 1887. During the three years prior to her death she invested the greater portion of her funds in western securities, and her husband, at the same time, made similar investments on his own account. Hot only did they thus engage in their business ventures together, but they likewise were in perfect accord with each other on all other subjects, so that their married life was marked by the most complete cordiality and harmony. The record discloses several attempts to show that latterly decedent felt displeasure at her husband, but all of these failed completely. There can be no. doubt that the pleasantest companionship existed between this husband and wife. In 1890 decedent, then being in possession of her entire faculties,- made a will. She went about the matter deliberately, with the aid of her own attorneys, and without advice from or consultation with contestant. She-had no children or remoter descendants. Her only relatives were a brother and four sisters, with none of whom, excepting perhaps the former, she was particularly intimate; The one who was nearer and dearer to her than all others was ‘her life companion, and it was, therefore, natural and proper that, after giving a small legacy to her brother, she devised her entire property to her husband. 'This will was kept by decedent in a trunk in her room and was never destroyed. The instrument that is now offered for probate is dated and alleged to have been executed on May 8,- 1894, twelve days before the death of decedent, and while she was in a state of enfeebled health. Under its terms, the testatrix gives her property to her brother, sisters and husband in equal shares, appoints her brother the sole executor, and directs that in the event of any beneficiary contesting the will, his or her share shall be divided among the others. The husband became the sole contestant. ' It will be observed at the outset that we have here a case where a prior will, made while the testatrix was in good health and under circumstances of deliberation and care, is sought to be overthrown by a later will in hostility to the *419provisions of the first instrument and made while the testatrix was on her deathbed, weakened by disease. Under such circumstances, the court will inquire most minutely into all the concomitant circumstances touching the execution of the second testament; and will require the proponent to clearly show that the testator was fully cognizant of his acts and reflected his intentions in the will offered for probate. Matter of Way, 6 Misc. Rep. 484, 499; Forman v. Smith, 7 Lans. 443, 445; Matter of Clark, 5 Misc. Rep. 68, 73; Booth v. Kitchen, 3 Redf. 52; Tyler v. Gardiner, 35 N. Y. 559. It appears that decedent’s last illness began in the fall of 1893. She suffered from a pelvic abscess. Eventually, meningitis set in and became the immediate cause of her death. During the long course of this sickness she suffered intense pain, which was .finally relieved only by the almost continual use of opiates. Her husband was a constant and faithful attendant. As a nurse to his dying wife, he performed services, rendered necessary by the dread nature of her illness, which would have .strained the loyalty, of any man to the utmost, and yet he did these things uncomplainingly and with beautiful devotion. There was no estrangement, no quarrel, no disagreement. How, then, can the remarkable change of intention that .decedent underwent be explained? The direct evidence' on the subject is furnished mainly by proponent’s wife. She testified that, in the fall of 1893, decedent informed her that she desired to alter her will so as to have it read like one made by an uncle, who divided his property equally among brothers and sisters; that nothing more was said, until about May 1, 1894, at which time decedent said that her end was near and asked that a lawyer be employed to draw up a new will. This is substantially all the light that was •shed on this subject. Thereupon, an attorney, who had performed services for proponent, was employed, and the instrument now offered for probate Was drafted from oral instructions given by proponent and his wife to this attorney. We now come to the eventful evening of May 3d. Proponent’s wife testified that decedent said that she did not want her husband to know of the proposed change in the will, as she could not, in such an event, live with him, and that she wanted him away from the house at the time the will was to be signed. Whether or not decedent made these statements, the fact remains that on this evening, the proponent persuaded the contestant to go walking, and that, while the two were away, the alleged execution of the will took place. Con*420testant knew nothing of this second testament until his wife was. dead. We are now confronted with the important inquiry as to the decedent’s mental condition on the evening in question.. Here I find the testimony most conflicting. Proponent’s witnesses say emphatically'that the will was read over to decedent, and that she said “ yes ” to the usual questions as to whether that was her will and whether she desired the subscribing witnesses to- act. She was so weak that she could not write, although an excellent pen- . man, and the attorney wrote her name- and guided her hand as she made a cross. On the other hand, it was shown that two of the subscribing witnesses had signed statements in which they aver that decedent was speechless; that, upon questions being asked, she uttered sounds like *“*ah, ah ”; that she made no declaration of any kind, and seemed entirely unconscious of what was going on about her. The attempt to explain away the force of these statements must be characterized as most unsuccessful. Furthermore, the physician who regularly attended decedent .testified that his patient was in' a condition of coma- during three days before Thursday, May 3d; that she had not been rational since the Monday before that Thursday; that he visited her twice on May- 3d, and that she did not take any nqtice of him whatever on either occasion. He could'‘not positively: state what her condition was a few hours after his" second visit,: at which time the alleged will was signed] He testified, however, that while it might have been possible that she understood what was going on, yet, from his knowledge of her condition, he believed that this was extremely improbable. From a careful perusal of the testimony offered on this point, which I do not deem it necessary to further review, I find that a grave doubt remains in.iny mind as to whether decedent was rational on the evening of May 3d,' and whether she had any knowledge whatever of the contents of the paper to which sheaE fixed her cross. And this doubt is intensified when I take into account the peculiar circumstances surrounding the entire transaction. In view of this fact, I do not deem it essential to pass on the issue - of undue influence, and I shall rest my decision of the matter entirely on the issue of .testamentary capacity.. Aside from the salutary rule laid down in the 'case of Matter of Way, *supra,*it rests upon the proponent of a will to satisfy the court of the mental soundness of the testator’s mind. Delafield v. Parish, 25 N. Y. 9. It is 'true that this case has been cited in support of the proposition "that the "burden of proof is upon him who alleges, tes*421tamentarv incapacity. Dickie v. Van Vleek, 5 Redf. 284, 286; Miller v. White, id. 320. The better opinion, however, is that, if upon the whole case presented, the judicial conscience is in grave doubt as to whether or not the testator was mentally sound, that doubt must be resolved in favor of the contestant. Undoubtedly, there is a presumption, mostly one of fact, that every man is sane,, and that presumption materially assists the proponent in. carrying the burden that is upon him; but it does not relieve him of it (Rollwagen v. Rollwagen, 63 N. Y. 504; Cooper v. Benedict, 3 Dem. 136; In re Lissauer’s Will, 5 N. Y. Supp. 260; Matter, of Elansburgh, 82 Hun, 49, 50), and this view reflects the meaning of section 2623 of the Code of Civil Procedure. Upon con-, sideration of the entire evidence, I have not been satisfied that the decedent was competent to make a will on the 3d day of May, 1894, and probate of the instrument bearing date and alleged to have been executed on that day will be refused.

Decreed accordingly.