(121 App. Div. 398.)

#### In re MARLOR’S WILL. *

(Supreme Court, Appellate Division, Second Department.

October 4, 1907.)

Wiles—Validity—Undue Influence—Presumptions.

That testatrix’s will named her attorney as executor is not a suspicious circumstance, and does not raise a presumption of undue influence against the will.

Appeal from Surrogate’s Court, Kings County.

Application by Seth R. Johnson, executor, fór the probate of the will of Jane Ann Marlor, deceased. From a decree of the surrogate *132(103 N. Y. Supp. 161), refusing to admit the offered will to probate, the executor and William Penn Esterbrook and another, beneficiaries, appeal. Decree reversed, and will admitted to probate.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

John Hill Morgan (Silas B. Brownell, on the brief), for appellants.

Jerry A. Wernberg, for respondents.

*

Modified in 106 N. Y. Supp. 1136.

HIRSCPIBERG, P. J.

The surrogate finds as facts in the decree appealed from that the instrument alleged to be the last will and testament of the deceased was not duly executed as required by law, that the testatrix at the time of executing it was incompetent to make a will, and that she was then acting under restraint and undue influence. Not a word of proof was given on the hearing before the surrogate tending to establish any one of these three findings. On the contrary, the evidence is clear and conclusive that the will was executed with all the formalities and requirements of the law, that the testatrix at the time of its execution was in all respects competent, and that she was not under any restraint or undue influence whatever. In the opinion written by the learned surrogate he states as follows :

> “There is no question as to the sanity of the testatrix or that the legal formalities necessary to the execution of the will were complied with. The sole question to be determined is as to the existence of undue influence.”

On the question of undue influence the learned surrogate holds that, inasmuch as the executor named in the will was the attorney of the deceased, that fact raises a presumption of undue influence, and he accordingly concludes from that fact alone that the attorney must have exercised some undue influence over the testatrix, and thereupon has rejected the will. There is no authority in this state for the proposition that the naming of an attorney or confidential adviser as an executor is a suspicious circumstance, or one which raises a presumption of undue influence. Such an act does not operate to change the general rule that the burden of proving undue influence is upon the party asserting it, and that it must be established by clear and ■convincing evidence. The proponent in this case is not a beneficiary under the will, and it has been held in this state that, even where the draftsman of a will is a beneficiary, the fact would raise no presumption to overthrow the will. In Post v. Mason, 91 N. Y. 539, 43 Am. Rep. 689, it was held that where a will contained a legacy to the ■draftsman, an attorney who, at the time of the execution of the will, was, and for a long time previously had been, the counsel of the testator, the fact did not raise a presumption that the influence of the •attorney was unduly exercised, or that the intention of the testator •was improperly controlled. In Matter of Will of Smith, 95 N. Y. 516, the court said page 523:

> “It has been held that the fact that the beneficiary was the guardian, attorney, or trustee of the decedent does not alone create a presumption against *■■a.*testamentary gift, or that it was produced by undue influence. Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; Post v. Mason, 91 N. Y. 539, 43 Am. Rep. 689; Parfitt v. Lawless, L. R. 2 Pro. & Div. 462. The mere fact, therefore, .that *133the proponent was the attorney of the testatrix, did not, according to the authorities cited, create a presumption against the validity of the legacy given, by her will.”

In Haughian v. Conlan, 86 App. Div. 290, 83 N. Y. Supp. 830, this court held that the fact that the lawyer who drew the will was bequeathed legacies was utterly insufficient to warrant the inference that the will was the result of undue influence. See, to the same effect, Clarke v. Schell, 84 Hun, 38, 31 N. Y. Supp. 1053; Matter of Suydam’s Will, 84 Hun, 514, 33 N. Y. Supp. 449, affirmed on opinion below 152 N. Y. 639, 46 N. E. 1152.

The decree should be reversed, with costs to the appellants payable out of the estate, and the will admitted to probate. All concur.