#### Matter of Probate of a Paper Purporting to be the Last Will and Testament of Bridget McCabe, Deceased.

(Surrogate’s Court, New York County,

December, 1911.)

Wills: Disposal by will — Testamentary capacity — Evidence or facts establishing or negativing capacity — Evidence, presumptions and inferences: The testamentary instrument or act — Execution of will — Evidence of execution — Sufficiency of evidence — Testimony of subscribing witnesses.

Where the testimony of two of the three witnesses to a will is precise and sufficient to prove that the execution of the paper propounded conformed with all the requirements of statute, no presumption against the sufficiency of the execution arises from the fact that the third witness has forgotten nearly all the essentials to a due execution.

The omission of a grandchild from a will is not, in itself, sufficient to cast, in the' first instance, an additional burden on the proponents of a will.

Proceeding upon the probate of a will.

James S. McDonough, for proponent.

*36A. Welles Stump, special guardian. .

Mathew J. Wheelehan & H. L. Franklin, for contestant.

Fowleb, S.

The grandson of the testatrix, omitted from the paper writing offered for probate as the last will of his grandmother, contests such probate on the usual grounds. The will in question is in favor of an adult son and daughter of testatrix, but charged with their support of an incompetent son of the testatrix. The estate is not large.

The allegation of undue influence has riot been sustained. It is not sufficient to rely on the relations of testatrix to the beneficiaries of the will. Undue influence cannot be assumed to exist by reason of mere opportunity to exert the same, but such' influence must be established affirmatively. Matter of McCarty, 141 App. Div. 816; followed in 71 Misc. Rep. 378; Matter of Gihon, 44 App. Div. 621, 622; Cudney v. Cudney, 68 N. Y. 148.

The omission óf a grandchild from a will is not in itself sufficient to cast, in the first instance, an additional burden on proponents of the will. The testatrix had. the right and power to disinherit her children or grandchildren, and she might dispose of her property as she saw fit, if capacity to make a will existed. Norton v. Norton, 2 Redf. 6; Mairs v. Freeman, 3 id. 181; La Bau v. Vanderbilt, id. 399; Matter of Cornell, 43 App. Div. 241; Horn v. Pullman, 72 N. Y. 269, 276, 277. These established rules dispose of the objection interposed and charging undue influence, as there was no direct evidence in any way sufficient to sustain such charge.

The fact that testatrix was aged and deaf (which is disputed), and was also blind, did not render her’ incapable of making her will. Horn v. Pullman, 72 N. Y. 276. A blind person may make a will. Such a condition as that of testatrix merely casts upon the proponents the burden of proving, with greater particularity, that the paper propounded was the conscious act of a free and capable testatrix, and that no imposition was practiced on her. It seems to me that the proponents have discharged this.burden rest*37ing upon them sufficiently in this cause. That the provision's of the will word dictated by testatrix herself, and that the will was read over to her before execution, is established, and it is not contradicted. There is an absence of proof of weakness of mind. The will is sufficiently rational on its face to furnish no inherent evidence of a disordered intellect.

The only remaining question then is as to the sufficiency of the execution. The Statute of Wills provides for a greater number of attesting witnesses than two, and no presumption against this will is offered by the fact that there were three attesting witnesses to its execution. It is true that one of the witnesses had forgotten nearly all the essentials to due *execution.*The presumption is not against the sufficiency of execution because of such forgetfulness. The testimony of the other two was, in any event, precise and sufficient to prove that the execution of the paper propounded conformed with all the requirements of, the Statute of Wills. The testatrix subscribed the will by her mark at tho foot of the will. Such subscription was the testatrix’ own-; but even if her name, written around the mark, is to be taken as a subscription the person who wrote it complied with the law. Decedent Estate Law, § *22.*The contestants have failed to establish any ground which invalidated the execution, and I must pronounce for the will. Let the findings and' decree to that effect, admitting the paper propounded to probáte as the last will of real property of Bridget McCabe, deceased, be presented to me for my signature. The question of costs will be reserved for settlement of such decree.

Decreed accordingly.