#### In the Matter of the Will of Milton Budlong.1

*(Court of Appeals,*

*Filed June*2, *1891.)*

1. Will—Execution—'Undue influence—Evidence.

Where a will is contested on the ground of undue influence, the testator having ignored a daughter, although he had previously stated that he desired £iis estate to be equally divided among his children, and it is charged that the sons of testator, who procured the execution of the will, combined to influence him against her by letters and statements, if it is shown that the son wrote the letter knowing that the statements were untrue, with the design that it should reach his father and influence him in the disposition of his property, and it did in fact influence him to disinherit the daughter, a case of undue influence and fraud is made out.

'■&. Same—Burden of proof.

After stating that, although the will might have been grossly unjust, yet that was of no consequence if it was satisfactory to the party who made it, the court charged that “ if, under all the circumstances of the case, you find that this will was unnatural in its provisions, and inconsistent with the duties and obligations of the testator to the different members of his family, it imposes upon the proponents the duty of giving some reasonable explantion of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity or perversion.” *Held,*no error.

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of contestants after trial at circuit and order denying motion for a new trial

*J. A.*Stull, for app’It; *E. A.*Nash, for resp’t.

1

 Affirming 36 N. Y. State Rep., 863.

O’Brien, J.

Milton Budlong died on the 20th day of April, 1880, having made a will on the 4th of January previous, in which he disposed of his real and personal estate, amounting to considerably over $50,000. The validity of this will was the sole question involved in these proceedings. He left a widow, three .sons and three daughters surviving, who were the natural objects of his bounty in the distribution of his estate. The will provided for the comfortable support of the widow, according to her station in life, which support was in lieu of dower and made a charge *437upon the real estate. To one of the daughters he devised two houses and lots in the village of Fairport to another he gave a money legacy of $5,000. He gave the residue of his real and personal estate to two of the sons, in the proportion of one-third to one and two-thirds to the other, the larger share, however, being chargeable with a legacy of $5,000 to the third son, Levi S. Budlong. To the other daughter, Mrs. Louisa J. Cole, who is the contestant of the will, he gave a legacy of five dollars. The three sons were named as executors, and, having petitioned the surrogate of Monroe county to admit the will to probate, the daughter above named, filed objections that the instrument was not the will of the deceased; that at the time of its execution he was not capable of making a will, and that the proponents, or some of them, procured its execution by means of deceit, fraud and undue influence. Upon a trial, in which a large volume of testimony was taken, the surrogate made a decree adjudging the will' to be valid and admitting it to probate. While the case was pending before the surrogate the contestant died, and her heirs at law were substituted in her place. The general term upon their appeal reversed the judgment and directed a new trial upon two specific issues of fact by a jury. These questions were whether the deceased was of sound mind at the time of executing the instrument, and whether its execution was procured by fraud and undue influence.

The new trial resulted in a verdict of the jury, finding that the deceased was of sound mind when the instrument was executed and capable of making a will, but that its execution was procured by undue influence and fraud. The judgment in- favor of the contestants entered upon this verdict has been affirmed by the general term. The proponents of the will in their notice of appeal to this court from the last decision of the general term seek to review, not only the judgment entered on the verdict and subsequent orders, but also the judgment and order of the general term reversing the decree of the surrogate and granting a new trial; and the papers submitted upon this appeal contain the record of all the proceedings before the surrogate, including his findings, and the opinion and judgment of the general term on appeal therefrom. This court cannot review the judgment of the general term reversing, upon the facts, a decree of the surrogate admitting a will to probate and directing a new trial before a jury of questions of fact *Sutton*v. *Ray,*72 N. Y., 482 ; *Burger*v. *Burger,*111 id., 523 ; 20 N. Y. State Rep., 105. if or does an appeal from the last judgment of the general term bring here for review the first one under §§ 1316,1317 of the Code of Civil Procedure, as it is not within the meaning of these sections either an interlocutory judgment or an intermediate order necessarily affecting the final judgment. The only record that is properly before us is that of the trial at the circuit, and we can review only the judgment entered thereon and subsequent orders and proceedings. The j udgment is based upon a finding by the jury that the instrument purporting to be the -will of the deceased was not his free and voluntary act, but the result of undue influence and *438threat, by means of which his mind was prejudiced against one of his children by one or more of the others and his natural affection for her perverted. It must be admitted that the jury would have been warranted in taking a contrary view of the facts, but at the same time their finding is not, by any means, so destitute of evidence for its support as to authorize the court to interfere. The deceased was seventy-nine years old when he made the will. His mental and physical powers, which had been remarkably strong and vigorous through life, began to weaken. He was attacked with a severe.illness, from which it was supposed by the family he could not recover, and it was during this illness, and in expectation of death as the result of it, that the will was executed.

The two sons who received the greater part of the estate were with him during his sickness, and one or both of them procured the attorney who drew the instrument. There was some proof of his declarations, made shortly before this illness, that he did not intend to make a will but to die intestate, to the end that all his children should share equally in his estate under the law of the state.

The two sons who were preferred were men of large property in their own right, and up to a time not long before the will was made the acts and declarations of the father tended to show that all his children were equally dear to him. The claim of the contestants was that the sudden change in the father’s affections towards his daughter, which resulted in such an apparently unjust discrimination against her, as appears on the face of the will, was brought about by means of a letter shown and read to him by another daughter, Mrs. Hunt, a short time before the execution of the instrument. This letter was one of the last of a series of events which were pressed upon the jury as proof-that the father’s affections had become alienated from his daughter, the contestant, by misrepresentation, resulting in ignoring her in the final distribution of his property.

It appeared that some nineteen years before the death of the father, Levi S. Budlong, one of the sons, married a domestic in the family. The father felt humiliated 'and grieved in consequence of this alliance, threatened to disinherit his son and refused to be reconciled to him or his wife. After the lapse of some time his attitude towards them softened and he became more friendly, regarding the marriage as an accomplished fact and manifesting a disposition to make the best of it. The marriage, however, between the parties themselves proved to be an unhappy one. There is evidence in the case tending to show that the husband ill-treated the wife and that Mrs. Cole, his sister, was a witness to at least one violent assault upon her, and that she, on that occasion, sharply reproached her brother for such conduct.

During the year previous to the execution of the will, Levi went to the state of Iowa for the purpose of obtaining a divorce from his wife on the ground of cruel and inhuman treatment. In this controversy the old aversion of the father towards the marriage revived, and his feelings were strongly enlisted on the side *439of his son and in favor of the divorce. But it appears that the wife resisted the proceedings for divorce, consulted counsel in this state, followed the husband to Iowa and materially interfered with his plans, if she did not succeed in entirely defeating them. This was a bitter disappointment to Levi, and he attributed his failure to the instigation, assistance and advice of Mrs. Cole to his wife, or at least pretended that she had joined his wife in opposition to him. On the 2d of October, 1879, Levi addressed a long letter from Iowa to his other sister, Mrs. Hunt, who lived near her father. In this letter he took rather a gloomy view of the result of the divorce suit, which appeared to be pending, described the visit of his wife to the west and its effect upon the suit, and reflected bitterly upon the conduct of Mrs. Cole, in assisting and advising his wife, with the result of bringing much trouble and disappointment upon him. He requested the sister to whom the letter was written to show it to his father, and she complied with the request. Some proof was given of the statements of the father after he had seen the letter, tending to show ill feeling toward Mrs. Cole for joining in the contest against her brother, who was described by the father as his favorite son. Proof was submitted to the jury, consisting mostly of circumstances and facts, tending to show that the reflections upon Mrs. Cole contained in the letter were substantially, if not wholly without foundation in fact, and that the writer intentionally misrepresented her conduct

Some proof was also given of declarations made by Levi, tending to show that he had advised his father to make a will, and that if he left Mrs. Cole anything he would litigate with her as long as he had a dollar to spend in that way. The letter and the other evidence in the case furnished some proof that Levi attempted to, and did, create in the mind of the testator a feeling of prejudice and aversion towards his daughter, with reference to the disposition of his property, which found expression in the will, so far as it relates to her. The court instructed the jury that if Levi wrote the letter, knowing that its statements were untrue, with the design that it • should reach his father and influence him in the disposition of his property, and that it did in fact influence him to disinherit Mrs. Cole, then a case of undue inflence and fraud was made out. • But that if they were not false, and were not designed to, and did not in fact influence the father in the disposition of his property, then the letter was harmless. Sufficient reference has been made to the evidence to show that the main question in the case, and around which the parties contended, was one of fact that must be regarded as having been put at rest by the verdict of the jury. The counsel for the proponents, by exceptions taken to the charge above referred to, and in the argument in this court, contends that the rule stated by the learned trial judge was erroneous. His position is that as the statements in the letter, whether true or false, and with whatever intent written, related solely to the relations and conduct of Mrs. Cole towards her brother, and in no manner to her feelings, conduct or relations towards her father, they coúld have no connection with the will, but *440related to matters entirely extraneous to it. That at most the statements could not be regarded as anything beyond the complaints of one child against another to the father, without any reference to the disposition of property, and, therefore, could not legally affect any will subsequently made. The undue influence and fraud which the law guards against may be exercised in an almost infinite variety of ways. Prejudice and aversion to a child may be created in the mind of a testator by misrepresentation of the conduct and feelings of this child towards another which, in connection with other facts, such as were shown in this case, may be sufficient to affect the validity of a will in which the child in regard to whom the representations were made is ignored in the distribution of the father’s estate by will, and this is especially true when no other reason is apparent for a grossly unjust and unequal division among children with an apparently equal claim upon the testator’s bounty. *Tyler*v. *Gardiner,*85 Ñ. Y., 559*;*Eed. Am. Gases on Wills, note 522. In the course of a very clear and, on the whole, impartial charge, the learned judge who presided at the trial said to the jury that “if, under all the circumstances of the case, you find that this will was unnatural in its provisions and inconsistent with the duties and obligations of the testator to-the different members of his family, it imposes upon the proponents the duty of giving some reasonable explanation of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity or perversion.”

The counsel for the proponents excepted to this part of the charge. It must be read in connection with what preceded, in which the court said that though the will might have been grossly unjust in its provisions, yet that fact was of no consequence if 'it was satisfactory to the party who made it, as every man had the right to dispose of his property according to his own will. That if it was the testator’s preconceived design and intention, calmly entered into, to disinherit his daughter, Mrs. Cole, he had a perfect right to do so, and none of us have any right to complain of the exercise of that right, provided in doing so he exercised his own will, a-nd was not influenced by the will of another. The fair construction of the portion of the charge excepted to is not that the unequal division of the testator’s property, apparent on the face of the will, raised a presumption of undue influence or fraud which the proponents were called upon to explain ; but if, upon all the proof in the case, the jury should find that the will was in fact contrary to the dictates of natural affection and was, under all the circumstances, unnatural in its dispositions, so far its provisions would be evidence of mental defect, obliquity or perversion of mind which would require explanation. Thus understood and read in connection with the other propositions, that part of the charge which was the subject of this exception was not objectionable. A learned author on wills has stated the principle in the following language, which we think expresses substantially the same idea as that intended to be conveyed by the charge, if it does not go even farther:. “But gross inequality in the dispositions of the instrument, when no reason for it is suggested either in the *441will, or otherwise, may change the burden and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate act of a rational, self-poised and clearly disposing mind.” 1 Redf. on Wills, 557; Redf, Am. Oases on Wills, 298, note. There are numerous other exceptions to the record, but we think they were correctly disposed of in the court below, 54 Hun, 131; 26 N. Y. State Rep., 863, and do not call for any special notice here.

The judgment should be affirmed, with costs payable out of the estate.

All concur.