#### In the Matter of the Alleged Will of Samuel Westurn.

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

*Filed May 21, 1891.)*

Will—Where draftsman is sole beneficiary—Fraud and undue influence.

A testator, whose next of kin were the children of a brother, devised all his property to B., who drew the will. B. was r, magistrate and had some charge of the testator’s affairs. No proof was -given that the will was read over to or by the testator, or that he knew its contents, or that he had ever said he intended to leave B. his property, nor was it shown that he gave any such directions when the will was drawn. Some time after it was executed he wrote to a niece that he wanted her to make his house her home after his death. *Held,*that in addition to the usual proof, the proponent, B., must show that the testator understood the provisions of the will and that it was not the subject of artifice, fraud or undue influence.

This is an appeal from the decree of the surrogate of Warren county, admitting to probate an instrument in writing offered as *388and for the last will and testament of Samuel Westurn, late of Warren county, deceased.

The deceased left no wife or children, his only heirs and next of kin being the children of a deceased brother, who appear as qontestants to the probate of the will and appellants on this-appeal.

Lewis Burgess, the proponent and sole executor named in this instrument, drew the same and. is the sole legatee and devisee named in the body of the instrument. On the margin is a note directing a cheese factory to be given to Seymour L. Westurn.

The property devised and bequeathed in the will is valued at from $40,000 to $50,000.

The will was admitted to probate by the surrogate and letters testamentary were issued to the proponent, and the contestants appeal to this court.

*A. Armstrong (John C.*Keeler, of counsel), for app’lts; *H. A. Howard,*for resp’t.

Mayham, J.

The position which the contestants seemed to-take before the surrogate, that the testator was wanting in testamentary capacity, upon which subject considerable evidence was; taken, does not seem to be urged here, except as his physical and mental condition can be made to bear upon the question of deception or undue influence, claimed to have been practiced by the-proponent upon the testator in' shaping the provisions of the will.

It is quite apparent from all the evidence that the testator was-not wanting in testamentary capacity to make a valid testamentary disposition of his property, and if this instrument was the free and! voluntary act of the testator, with a knowledge of its provisions at the time it was made, it must be upheld as his will.

It is urged by the contestants that the confidential relations that existed between the proponent and testator, the fact that the will was drawn by the proponent in his own handwriting, and that he is made the sole beneficiary, to the exclusion of the kinsfolk of the "testator, who are the more natural objects of his bounty, and the failure of the proponent to prove that the will was read over to the testator, or by him, or that he knew its contents, raise the legal presumption of fraud or undue influence, or both, that such presumption is not overcome by evidence on the part of the proponent, and that the probate of the instrument as a will should for that reason be denied.

The evidence discloses that the business relations between the proponent and testator in his lifetime had been close and somewhat of a confidential character; they had been partners in business years before, and the proponent, although not an attorney, was a magistrate and accustomed to drawing business and legal papers, and to some extent had charge of testator’s business, there-being no practicing lawyer in that town or vicinity.

While the relation of attorney and client did not exist between Westurn and Burgess, still it is apparent from the evidence that, the former regarded the latter as a trusted business assistant, and *389to some extent confidential adviser, in matters of a legal and business nature.

It is most natural that the testator, in the absence of a lawyer to whom he could apply for the transaction of this important business, should select this proponent, who' had been accustomed to do his business for him, and who to a certain extent had had charge of his business and who, as appears from the evidence, was the substitute for the lawyer in that community. Had not the proponent been named in the will as the principal beneficiary, no question could have arisen out of such a situation.

But when we find that the trusted friend and draftsman of this will is made in it not only the sole executor, but devisee and legatee of this entire estate to the exclusion of all of the next of kin and heirs-at-law of the testator, we are called upon to inquire and determine whether, in the light of rules of law governing the testamentary disposition of property, the proponent has, by his proof, overcome the legal presumptions that arise out of the circumstances of this case.

In pursuing this inquiry we must start with the concession and assertion, of the testator’s absolute legal right and power to dispose of his property by will as he pleases, without regard to any supposed claims founded upon kinship or ties of consanguinity or affinity.

These relations can only be considered as bearing upon the question "of the probabilities of the instrument offered for probate being the free and voluntary will of the testator.

But the fact that a will is drawn by one who is a principal beneficiary in it has always been regarded as a suspicious circumstance tending to cast doubt upon the validity of the instrument.

By the civil law such a will, drawn by a legatee, is absolutely void.

But the rule of the common law in England and this state has not followed the civil law, and while regarding it as a suspicious circumstance, it has not alone been regarded as ground for declaring a will void.

In *Marvin*v. Marvin, 3 Hun, 141 n., Mason, J., in discussing this question, uses this language: “Yet the better rule to be adduced from the adjudged cases is that a presumption of undue influence shall be indulged in against them when the testator is feeble, weak and in advanced old age.

“ I do not mean to say that such legal presumption will be indulged in, in every conceivable case, but the rule to be deduced from the adjudged cases in our own courts will fully justify this charge in its application to the case at bar.”

In that case the one who drew the will was a lawyer and acted as the legal adviser of the testator.

In *Newhouse*v. Godwin, 17 Barb., 236, the testator left a wife and sister in comparatively destitute circumstances, and gave the bulk of his estate to his counsel, who drew the will and whose influence over the testator extended beyond professional matters

There being no evidence to show that it was in accordance with previous directions or that the testator had previously designed to *390give anything to him, and it being proved that the testator in consequence of illness was in a state of mind in which he readily yielded or assented to the suggestion of others, it was held that the will was invalid as having been obtained by undue influence, and the decree of the surrogate refusing to admit the will to probate was affirmed by this court on appeal

In this case the will was read to the testator, which does not appear to have been done in the case at bar.

In that case Strong, J., delivering the opinion of the court, says: “ The appellant drew the will; there is nothing to show that it was in accordance with previous directions or that any directions were given.

“ It is true that it was read to the testator and that he must have assented to it.

“His assent does not prove that it was his will, as the evidence shows that he readily assented to whatever was proposed to him.

“ This peculiarity, coupled with the entire absence of any proof that the testator had previously designed to give anything to the appellant, or that he had given him any instructions to draw the will, lead strongly to the inference that it was the will of the appellant and not of the testator.”

It is true that the case from which we have quoted differs from the one we are considering, in this, that the will was in that case read to the testator; but that in consequence of mental and physical weakness the will of the draftsman was deemed to dominate that of the testator; but in the case at bar, where it does not appear that the will was read by or to the testator, or that he knew its contents, and where the draftsman was the principal beneficiary, the conclusion is quite as irresistible that this was the will of the draftsman, and not of the testator, as in the case from which we last quoted.

In this case, as in that, there is no evidence of previously expressed intention by the testator to make his will in favor of the proponent, or of any direction or instruction by the testator to the draftsman as to the disposition of the property under the will.

In this case, as in that, the draftsman is a beneficiary under the will.

It is, perhaps, worthy of note in this connection that, while the evidence discloses no previous expression of intent on the part of the testator to make the proponent the recipient of his property, there is in letters and correspondence of the testator with his brother Seymour and his wife and daughters such a cordial recognition of kinship as to raise a presumption that he intended them, or some of them, as the objects of his bounty, in one of which he expresses a wish that a niece make his home her home after his death.

It is true that this letter was written long after the date of the will, but as that instrument could take effect only at his death it may furnish some slight evidence of his understanding of the provisions of that instrument, especially when considered in connection with the last clause before the attestation clause in the will, which reads as follows:

> *391“And I nope and believe that the said Lewis Burgess will use and dispose of my said property according to my wishes, to him made, and to the best of his judgment.”

. While it is not, as we have seen, the province of the court to interfere with a testator’s right to exercise his free volition in the testamentary disposition of his property, the court may, in determining the question of fraud, or undue influence, consider the relations existing between the testator and the natural objects of his bounty, and, judging from the ordinary motives actuating men, inquire whether the will is unnatural and apparently contrary to the testator’s previously fixed and detérmined purpose, and in such case to scrutinize closely with a view of ascertaining whether the act was free, voluntary and intelligent

In *McLaughlin*v. McDevitt, 63 N. Y., 213, it was held that to establish fraud and undue influence in such a case it is not necessary that the precise mode of committing the fraud should be proved; if it appears that the beneficiary, under the will, had an intent to defraud the testator in order to procure a personal advantage to himself in the will, and had the opportunity to practice deception, and a result was produced in his favor contrary to the known wishes and purposes of the testator, and no satisfactory explanation of the change is furnished, the will should be declared valid.

It will be observed in this case that the will as presented and probated before the learned surrogate is entirely inconsistent with the express request of the testator in his letter to his niece of November 13, 1888, unless the testator had confided to the proponent some direction or instruction in reference to his property which he supposed the proponent, who is named as executor, would carry out as a part of the will of the testator.

It is urged by the appellant that this provision of the will quoted above is evidence upon the face of the instrument itself of the fraudulent design of the proponent in drawing the instrument to practice upon the credulity of the testator, by inducing the belief in his mind that some private instructions not written in the will could be carried out by proponent as executor, which he knew at the time of drawing the same could not be engrafted upon the same, or in any way affect the devise and bequest of the entire estate to him; and while there is no evidence *aliunde*the instrument in support of that theory, it is, perhaps, worthy of consideration in the case in determining whether, under all the facts and circumstances, the proponent can stand upon the *prima facie*case made by him of testamentary capacity and due execution, or whether the contestants have not cast enough of suspicion on the *prima facie*case to so shift the *onus*upon the proponent as to require explanation of him.

The proponent insists that if the draftsman of a will takes a legacy under it it is suspicious only in connection with other circumstances indicative of fraud or undue influence, and in support of that proposition cites *Coffin et al.*v. Coffin, 23 N. Y., 1. In that case Comstock, J., upon that subject cites with approbation the language of Baron Parke in 1 Curteis’ Ecc. R., 637, as follows:

> *392“ All that can be truly said is, that if a person, whether an attorney or not, prepare a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight, according to the facts of each particular case, in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the *quantum*of the legacy, the proportion it bears to the property disposed of and numerous other contingencies.”

In *Coffin*v. *Coffin, supra,*the draftsman of the will, who was a nephew of the testator, took the same amount bequeathed to other nephews of the testator, and it was held not to vitiate the will.

The learned counsel for the proponent insists that before the will can be assailed where the draftsman is a beneficiary some other facts must be established by the contestant tending to show fraud, or undue influence ; and in support of that contention cites *Post et al.*v. *Mason,*91 N. Y., 53-9.

In this contention he is supported by the last case cited, where, as in *Coffin*v. *Coffin, supra,*the attorney and the draftsman receives a small share of the estate, and shares with other relatives in an equal degree, whereas in another class of cases, such as *Nexsen*v. *Nexsen,*2 Keyes, 229, where the draftsman and attorney receives as a legacy a considerable portion of the estate, he is required to explain the transaction by more than usual formal proof.

In this case Davis, J., in discussing the duty of a beneficiary under such circumstances, at page 252, uses this language: “ It casts upon him in addition to the ordinary burden of a proponent of a will the additional one of establishing it by testimony of a more clear and satisfactory character.

“ The courts demand in such case satisfactory proof that the party executing the will clearly understood and fully intended to make that disposition of his property which the instrument purports to direct”

It is true that in this case the will was admitted to probate, but it was upon the explanatory evidence of the draftsman, who testified to all the circumstances of the execution and of the testatrix’ knowledge of the contents of the will, which had been in her possession for some time before its execution.

But it is urged by the learned counsel for proponent that the legal presumption obtains and exists in support of his contention that the testator knew the contents of the will, and cites *Matter of Coleman,*111 N. Y., 227; 19 N. Y. State Rep., 501, upon that point.

That was a case where the admissibility of attorneys who drew the will as witnesses to its execution, where objections were made under section 835 of the Code, was in question, and upon the question of testator’s waiver of the privilege of the attorneys by making them subscribing witnesses, the court says: “ The law presumes knowledge on his (testator’s) part of its provisions, etc.”

We cannot believe that the court intended by that expression to extend that doctrine of presumption to a case like this.

We think, therefore, in this case the burden was cast upon the proponent of showing that the testator understood the provisions of this will and that it was not the subject of artifice, fraud or un*393due influence, by proof in addition to the ordinary evidence required by statute to establish a will and admit it to probate.

We do not see how this will can be declared a trust as there is no *cestui que trust*named in it, and in such case if it created a trust the trustee would hold it without accountability to any one unless it should be held that a resulting trust was created in favor of testator’s heirs-in-law or next of kin, in which case there is no apparent reason for declaring a trust as the estate would descend to them by the laws of distribution or descent either directly or through the medium of a personal representative.

The decree of the surrogate is reversed, and an issue awarded to be tried by a jury, issues to be settled by a judge of this court, unless fixed by the stipulation of the parties.

Learned, P. J., and Landon, J., concur.