#### In the Matter of the Last Will and Testament of Nancy Rosecrans, Deceased.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.*

*1.*Wills—Fraud—When not predicated.

No inference of fraud or undue influence can be predicated upon the fact that a testatrix constitutes her own relation the objects and recipients of her bounty.

2. Same.

Nor is the selection of a brother of testatrix, to whom she had confided the transaction of her business matters, any indication that the will was the result of fraud or undue influence.

3. Same—When decree admitting will to probate not disturbed.

Where, when a will is executed, nothing appears which indicates on the part of the testatrix, weakness of mind, or a perverted judgment regarding the nature of the will, the relation of the parties named as beneficiaries, and the character of the duties imposed upon the executor and trustee, in reference to the management of the fund, and no sufficient reason is shown, the court will not interfere with the decision of the surrogate admitting the will to probate.

Appeal from the decree of the surrogate of Sullivan county, confirming the probate of the last will and testament of Nancy Eosecrans, deceased.

*T. F. Bush,*for app’lt; *J. 8. Van Cleef*and *T. A. Niven,*for resp’t.

Ingalls, J.

We have carefully examined the evidence in this case, and are' convinced that the surrogate has de*484cided the case correctly, and the opinion which he has submitted, indicates that his decision was the result of deliberate consideration. The evidence fails to show that the testatrix was induced, through fraud or undue influence, to make the will in question. We do not perceive that such will is materially at variance with the statements made by her, previous to the execution thereof, in regard to the provision which she intended to make for her grandson, Charles Porter. Doubtless she regarded him as the primary object of her bounty, and we think the provisions of the will in his favor are in entire harmony with such view. The will is as follows:

*In the name of God, amen.*

I, Nancy Rosecrans, 'of the town of Neversink, Sullivan county, and state of New York, being of the age of fifty-one years, and of sound mind and memory, do make and publish this, my last will and testament, as follows, viz.:

*First.*I give and bequeath all my estate, both real and personal, as follows: I give all my property of every kind whatsoever to my grand-son, Charles Porter, under the following conditions:

*Second.*If said Charles should die without issue, that is, «without leaving children, then, and in that case, I direct and give my entire estate as follows:

One-third to my brother, David B. Smith; the balance between Anna Porter, Cornelia Hansee, Emeline Porter,, sisters, and Nathaniel D. Smith and Samuel N. Smith,, brothers, and Susan Puller and Emily Porter, nieces, making seven to share alike equally.

My said estate to be managed by my executor, who is authorized to sell or lease said real estate, as bis judgment may direct.

And my said executor is authorized to furnish my grandson, Charles Porter, all that may be necessary to educate, clothe and take care of him until he arrives at the age of twenty-one years, and after that, if it be necessary.

And, lastly, I do hereby nominate and appoint my brother, David B. Smith, to be my sole executor of this my last will and testament, hereby revoking all former wills by me made.

In witness whereof, I have hereunto set my hand and seal, this fifth day of January, in the year of our Lord, one thousand eight hundred and eighty-eight.

NANCY ROSECRANS. [l. s.]

The will was properly executed in all respects, in regard to form. Construing the will in the light of the circumstances "proper to be considered, we extract the following, *485as the scheme which the testatrix probably had in her mind, and intended to carry into effect by her will.

She purposed to provide for the support and education of Charles Porter until he became twenty-one years of age, when, she probably assumed, he would be able to care for himself, and she intended that he should; but to provide against any failure in that respect, arising from sickness, accident or misfortune, she directed that, out of said fund,, he should receive such further assistance as should be necessary to secure him a support during his natural life. The will provides, in that respect, as follows: “And the said, executor is authorized to furnish my grandson, Charles-Porter, all that may be necessary to educate, clothe and take care of him until he arrives at the age of twenty-one years, and after that, if it be necessary.” The will further provides, in substance, that in case Charles Porter should die without leaving issue him surviving, that the residue of the fund should go to, and be divided among, the brothers, sisters and two nieces of the testatrix, who are named in such will, and in the proportions therein specified. By such provisions of the will the testatrix seems to have carried out, substantially, all that even the evidence relied upon by_ the appellant would seem to indicate was her intention in regard to the provision for Charles Porter, out of her estate.

It is true that by the terms of the will the entire estate of the testatrix has not become, directly and unconditionally, vested in Charles Porter, and it seems quite evident that she did not intend that it should so vest. For some reason, whether well founded or otherwise, it is quite evident that she entertained an unfavorable opinion in regard to the business capacity of Melvin Porter, the father of Charles Porter, and as to his ability to providently manage property, and entertaining such views, she would not be likely to subject to his control, property designed for his son. In regard to the other persons named in the will, as the objects of the bounty of the testatrix, in the event that Charles Porter should die, leaving no issue, we do not perceive but that such selection was natural, and consistent with the relationship which they bore to her, and no inference, we think, should be indulged that such selection was the result of fraud or undue influence. The testatrix derived her estate from her husband, Charles H. Rosecrans, who, by his will, as we infer from the evidence, devised and bequeathed to her his entire estate, unconditionally, subject only to the payment of a legacy of $500 to Charles Porter.

We may, therefore, assume that the testatrix was left free to dispose of her property as she saw fit, and it would seem quite natural that after properly providing for the grand*486child, who was obviously an object of affection to the grand-parents, she would next remember. her own relatives in the bestowmenfc of her bounty, and that is what ■she did by her will.

The foregoing considerations in regard to the manner the testatrix disposed of her estate by her will, are only material, in so far as they reflect upon the question whether such disposition was the result of fraud or undue influence. David B. Smith, a brother of the testatrix, was selected, and named in the will as the sole executor thereof. We fail to discover, in view of the facts disclosed, anything unnatural or seriously objectionable in such selection, as it is apparent that the testatrix placed in him the fullest confidence. On the 24th of October, 1886, she executed to him a powder of attorney, conferring upon him authority as follows : “To transact my business in collecting debts, loaning money and looking after and doing anything that maybe necessary, in his judgment, for my interest,” etc. The testatrix was about fifty-two years of age when the will was executed, and we fail to discover anything which indicates, on her part, weakness of mind or a perverted judgment. Regarding the nature of the will, the relation of the parties, and the character of the duties imposed upon the executor and trustee, in reference to the management of the fund, we conclude that no substantial or sufficient reason ■ has been shown which should induce this court to interfere with the decision of the surrogate. The duties, which are, by the will, devolved upon the executor, and which he will be required to discharge, in the character of trustee, are of such a nature that the court can be invoked at any time to prevent any abuse of the trust, and to protect the rights of Charier Porter, should any such exercise of authority become necessary. We are satisfied that the facts of this case do not demonstrate even a well-founded suspicion, either that the will was the result of fraud or undue influence, or that the executor will prove false to the trust which has been *committed to*him. The decree should be affirmed, with costs in this court, to be paid out of the fund.

Learned, P. J., concurs. Landon, J., I concur, but I do not think it necessary to construe the will.