#### Lisbeth Bell Scott and Ethel I. Parker, Respondents, *v.*Edith M. Barker, Individually and as Executrix, etc., of George A. Barker, Deceased, Appellant.

First Department,

December 18, 1908.

Will—burden of proof in action to invalidate will — issues for jury — review of verdict — facts not establishing testamentary incapacity or . undue influence — trial—misconduct of counsel.

In an action brought under section 2653a of the Code of Civil Procedure attacking the validity of a will admitted to probate, the burden of proof rests upon the attacking party.

The rule that so long as a question of fact exists, it is for the jury and not for the court, obtains in an action to determine the_validity of a will. But as wills are not to be set aside by juries except for the gravest reasons, it is the duty of the Appellate Division to review the evidence to determine whether the verdict is supported thereby or is contrary to the weight thereof.

In such action it appeared that the testator had been long separated from his wife and bad lived in meretricious relations with a woman whom he married a year after the death of his wife. He left her his entire property, to the exclusion of two daughters. There was no direct evidence of undue influence or lack of mental capacity other than the fact that the testator had been addicted to the use of intoxicants. On all the evidence, *held,*that a verdict finding the will invalid was against the weight of evidence.

The fact that a man leaves his property by will to his mistress is not *per se*ground for declaring the disposition invalid, especially so where the meretricious relation was changed to a legitimate one when the obstacle to marriage was removed.

Undue influence not amounting to physical duress may be shown by circumstantial evidence. It must be such influence as overpowers the volition of the testator and substitutes that of the person exercising the influence. The fact that a will is the result of,affection or gratitude .or legitimate persuasion does not establish undue influence

A testator of sound and disposing mind and not governed by undue influence has a right to dispose of his property by will as he pleases,

In such action the court should unhesitatingly set aside a verdict where it is against the weight of evidence even though it was not error to submit the issues to the jury.

The practice of bringing evidence before the jury under the guise of arguing upon its admissibility and of summing up throughout the trial, discountenanced.

Appeal by the defendant, Edith M. Barker, individually and as executrix, etc., from a judgment of the Supreme Court in favor of *242the plaintiffs, entered in the office of the clerk of the county of Mew York on the 31st day of March, 1908, upon the verdict of a jury, adjudging that a paper writing purporting to be the last will and testament of George A. Barker, deceased, theretofore admitted to probate by the Surrogate’s Court, was not the last will and testament of said Barker; also from said judgment as modified by awarding costs and an allowance to the plaintiffs, and (as stated in the notice of appeal) from an order,entered on the 12th day of May, 1908, modifying the judgment as aforesaid, and also from an order entered in said clerk’s office on the 16th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*David Leventritt*of counsel *[Clayton J. Heermance*with him on the brief], *Albert W.*Ransom, attorney, for the appellant.

*Morgan J. O'Brien*of counsel *[Ashton Parker*and *J. Brownson Ker*with him on the brief], *Parker &*Ernst, attorneys, for the respondents.

Clarke, J. :

The plaintiffs, the daughters of George A. Barker, deceased, brought this action under section 2653a of the Code of Civil Procedure to test the validity of a paper dated October é, 1906, and admitted to prpbato by the decree of the surrogate of the county of Mew York on the 25th of March, 1907, as the last will and testament of George A. Barker, deceased.

The will is short and simple. After directing the payment of debts, funeral and testamentary expenses, it provides as follows: *“*I give, devise and bequeath unto my wife Edith M. Barker all my property and estate of every name, nature and description of which I die seized or possessed or to which I may be entitled, including any and all interest in remainder or otherwise in the estate of George Bell, deceased. Lastly, I nominate and appoint my said wife, Edith. M. Barker, executrix hereof.”

Section 2653a of the Code of Civil Procedure, giving a right of action triable by a jury to determine the validity of a paper admitted to probate as a last will and testament, provides that on the trial of Such an issue the decree of the surrogate admitting the will to pro*243bate shall be *prima facie*evidence of the due attestation, execution and validity of such will; that the party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence, and rebutting testimony may be then offered as in other cases. The burden of proof, therefore, rests upon the attacking party. It is the law' of this State that so long as a question of fact exists it is for the jury and not for the court *(McDonald*v. *Metropolitan Street R. Co.,*167 N. Y. 70), and the same rule obtains in will contests: “ Questions of fact arising in an action to determine the validity of a will are no different in this respect from questions of fact in any other case.” *(Hagan*v. *Sone,*174 N. Y. 317.) But these rules are also established by the same cases: *“*Wills are not to be set aside by juries except for the gravest reasons. A person lias the right to dispose of his property in such way and to such persons as he thinks best. It is only in a case where there is substantial proof of mental incapacity, or of undue influence, that courts or juries may annul his testamentary act.” *(Hagan*v. *Sone, supra.)*'If a court of review having power to examine the facts is dissatisfied with a verdict because against the weight or preponderance of evidence, it may be set aside.” *(McDonald*v. *Metropolitan Street R. Co., supra)*

It is the duty of this court, mindful of the rule that wills are not . to be set aside by juries except for the gravest reasons, to review the facts testified to in the case at bar and to determine whether the verdict is supported by the evidence,-or is contrary to the weight thereof. "

George A. Barker died on the 24th of January, 1907, then about sixty-two years of age. He left surviving him two married daughters by his first wife. That wife died on September 4, 1905. Decedent and his first wife had been separated for many years prior to her death, for what reason and under what circumstances is not disclosed in the record. On the 1st of October, 1906, decedent was married to the defendant Edith M. Barker by a clergyman and in the presence of witnesses at his residence at Baldwins, Long Island. On October 4, 1906, the will was drawn and executed at his said residence. On the ninth of October he and his wife came to the *244city of New York, transacted some business, including the hiring of a safety deposit box, and then went to Saranac in the Adirondacks where they remained until October twenty-second, when they returned to Baldwins, arriving there on October twenty-third. On November nineteenth they moved to the Cumberland Hotel in the city of New York and after remaining there for a while went to the Hotel Gramatan, Westchester county, where he died of cirrhosis of the liver and kidneys and arterial sclerosis.

There is, and can be, no dispute as to the factum of the will. It was signed by the decedent and published and declared with all the formalities required by law, in the presence of two witnesses who, at his request, and in his presence, and in the presence of each other, signed their names thereto. The daughters contest th% will upon the ground that their father at the time he executed it was not of sound and disposing mind and memory, and that it was not his will but that he was induced to make the same by undue influence.

The court left three issues to the jury, incompetency, undue influence and fraud. The jury returned a general verdict for the plaintiffs. The contention is that the decedent’s mind had been so affected by long,, continuous and excessive use of spirituous liquors that at the time of making the will he was not possessed of testamentary capacity, and further that he was so subject to the influence of his wife that the will by which his whole property was left to her, to the exclusion of the two daughters of his tirst wife, was the result of undue influence, and that undue influence so exercised constituted a fraud which vitiated the instrument.

There is no direct evidence of any kind or nature that Mrs. Barker knew that he was about to make a will or the contents thereof, or had asked him to make a will, or had exerted any influence, due or undue, .in that behalf. Plaintiffs’case depends entirely upon the inferences which they seek to draw from the relations which had existed for many years between the parties and from his habits in the use of intoxicating liquors.

It appears that for many years the defendant had lived openly with the decedent in his various homes as his mistress. Whatever might have been attributed to that fact, if it had continued up to the time of the making of his will, and subsequently to the time of his death, is very greatly weakened, if not destroyed, by the *245fact of his ceremonial marriage to her, about the openness and validity of which there is no question, celebrated prior to the making of the will, and occurring one year and one month after his first wife’s death. There is satisfactory evidence that upon his first wife’s death, after their long estrangement — when begun and how caused not appearing in the evidence — he expressed the desire to an intimate friend to marry the defendant at once, indicating an intention at the first possible moment of making their long companionship, which had hitherto been illegitimate, legitimate; but upon the suggestion that in deference to the feelings of others he should defer the marriage until the so-called year of mourning had expired, he acquiesced and after a year and a month carried out the intention which had long been in his mind. Marriage, under such circumstances, is as susceptible of the inference that the man desired to repair the injury done to his companion of years, to rehabilitate her so far as he could by giving her his name and his station in life, as of any other. What other reason for the mari'iage can be suggested ? Of course the history, the surroundings and the precedent and . attending circumstances are in such cases open to inquiry, but a meretricious relation transformed into a legitimate one, when the obstacle thereto has been removed, loses most, if not all of the inference which might otherwise be drawn therefrom. (See *Leslie*v. Leslie, 15 Wkly. Dig. 56; affd. on opinion below, 92 N. Y. 636; *Maynard v.*Tyler, 168 Mass. 107 ; *Matter of Buckley,*16 N. Y. St. Repr. 983.) Indeed, as we pointed out in *Heyzer*v. *Morris*(110 App. Div. 313), the fact that a man has left his property by a last will and testament to his mistress is not *per se*a ground for declaring that disposition invalid. And in *Matter of Mondorf*(110 N. Y. 450) the Court of Appeals said : “Even if his relations with Mrs. Schaumburg were meretricious, the law does not on that account condemn a will made in her favor. Where such relations exist all the circumstances attending the execution of a will which may be shown to have been induced thereby will be carefully scrutinized ; but the right of a competent testator to make any disposition of his property which pleases him, although it may be unjust and unnatural, will not be curtailed.”

The question of undue influence, however, where that influence is not physical, that is, within the legal definition of duress, can *246seldom be established by direct evidence, but like any other fact may be established by circumstances. But as stated in *Matter of Snelling*(136 N. Y. 515): “ What the law terms undue influence is not established by proof tending to show that the testator acted from motives of affection or gratitude, though the objects of her bounty were strangers to her blood. The influence or moral coercion, or by whatever other term designated, must be such as to overpower the will .of the testator and subject it to the will and control of another, in which case it assumes the character of fraud; ” or as said in *Marx*v. *McGlynn*(88 N. Y. 357): “There is another kind of undue influence ** * **and that is where the mind and

the will of the testator has been overpowered and subjected to the will of another, so that while- the testator willingly and intelligently executed a will, yet it was really the will of another, induced by the overpowering influence exercised upon a weak or impaired mind. Such a will may be procured by working upon the fears or the hopes of a weak-minded person; by artful and cunning trivances; by constant pressure, persuasion and effort, so that the mind of the testator is'not left free to.act intelligently and understandingly. It is not sufficient, however, for the purpose of establishing undue influence, to show that the will is the result of affection or gratitude, or the persuasion which a friend or relative may legitimately use; but the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which the testator would not have made if left freely to act his own pleasure, and this kind of influence will not generally be presumed, but must be proved like any other fact by him who alleges it.”

The decedent was a man of means. He was one of the executors under the will of George Bell and entitled thereunder, during the life of a *cestui que*trust, to a certain share in the income of the trust estate, and had a vested and inalienable estate and interest in one-third of the residuary estate of the testator, as decided by' the Court of Appeals, since the making of the will at bar, in *Stringer*v. *Young*(191 N. Y. 157). He did not know that George Bell’s will would be so construed, and had been of the opinion that he had but a life interest. This explains the phrase in the will “ including any and all interest in remainder or otherwise in the *247estate of George Bell, deceased.” He was an executor of George Bell’s will and attended to the business of the estate to the end of his life. He resided upon a handsome property at Baldwins, the title to which was in the name of the defendant. He undoubtedly was addicted to the use of liquor. He was a friendly man who liked to and did entertain his acquaintances; he was fond of sailing and fishing and driving. The plaintiff’s case was developed in an inflated and exaggerated tropical atmosphere. The number of bottles taken from the house are relied upon as convincing proof of how much the decedent himself drank, irrespective of the number of occupants of the house or the guests entertained, and as to the time in which accumulated. An ordinary drink assumes Brobdingnagian proportions until reduced by cross-examination. Inconsiderate trifles are magnified into portentous events. As evidence of a weak and incompetent mind are cited the facts that upon one occasion, after election, he celebrated^ by having a bonfire; that upon another occasion he dressed up as Sandow, the strong man, with cotton batting for muscles and with painted wooden bells, suppressing entirely the fact that this incident did not proceed from a delusion that he was Sandow, or an attempt to impose on others that he was Sandow, but was solely an incident of a Christmas party and a house minstrel show for the entertainment of friends. So of an incident of dressing up in Borneo slippers and a grotesque costume, it was reserved for cross-examination to show that it was on a similar occasion, a house party of a number of friends entertaining themselves in away not unknown in various country and city mansions here and elsewhere, but gravely produced as a part of the plaintiffs’ case as indications of mental incompetencv, and these incidents unexplained are woven into the text of plaintiffs’ hypothetical questions. He was fond of dogs; that he would fondle and caress a small black and tan and have chops cooked for it is urged as proof of mental weakness.

And so from innkeepers, gardeners and chambermaids, and accidental observers of isolated and trivial incidents many things susceptible of explanation as ephemeral, the transitory results of drink, many others explained on cross-examination and entirely disproved, were woven into a hypothetical question of great length, assuming to be true everything hinted at or surmised in the evidence given by the witnesses for the plaintiffs and is gravely pro*248pounded to two medical gentlemen who never saw the deceased and who give as their opinion that upon the day of the making of the will he did not have testamentary capacity. Leaving out of consideration the testimony of the medical experts based upon the hypothetical question, we are of the opinion that assuming all of the plaintiffs’ evidence to be true, it does not justify the conclusion that George A. Barker on October 4, 1906, when he executed his last will and testament, was mentally incompetent to make the same. On the other hand, we find his own books and papers, kept in his own handwriting, original checks, check books, stubs, memorandum book and diary, make altogether a careful, intelligent personal record beginning a considerable length of time prior to the making of the will and extending down to the seventeenth of January, seven days before his death, which exhibits entire capacity to attend to business. Against this proof the opinion of an expert based upon such a hypothetical question hardly rises to the dignity of raising an issue which should be sent to a jury. It was in evidence that for some weeks before the marriage and the making of the will he had stopped drinking. In addition to that, the defendant has proved by .many witnesses, the clergyman who conducted the marriage, by the county judge and surrogate who attended to business for Mr. Barker in relation to the sale of the place at Baldwins in November after the making of the will, by the county clerk, who was also an •auctioneer and attended to the sale of the personal property on the estate in November and December, by the lawyer who drew the will and received his instructions therefor, by old friends who had known him for many years, by the doctors who attended him, by officers of the safety deposit company from whom he hired a box on October ninth, and placed therein his will on his way to Saranac, and by business men with whom he had dealings, that he was capable, rational and logical down to a day or two before his death. Further, two medical experts upon a hypothetical question, framed by the defendant’s counsel, stated that in their judgment the person pictured by the question had testamentary capacity at the time of the making of the will. y

We have examined this voluminous record with the greatest care, and without further elaboration, for which there seems no need, we are of the opinion that the verdict is not sustained by the evidence, *249but, on the contrary, is against the great weight of the credible evidence in this case. We cannot escape the conclusion that the verdict was due to matters to which we regret to be obliged to allude.

The trial counsel, in his zeal and eagerness in behalf of his clients, succeeded in creating an atmosphere in the court room which we think could not fail to have its effect upon the jury. Against the repeated objections of the defense, and apparently uncontrolled by the court, under the guise of arguing upon the admission or rejection of evidence, he repeatedly and persistently, in effect, summed up to the jury all through the case. In this way many things not in evidence got before the jury calculated to affect them upon a contest between the disinherited daughters of a first wife and the widow who had married their father under the circumstances disclosed. By the peculiar phraseology of his questions counsel often succeeded in himself testifying rather than eliciting testimony from the witnesses. We think counsel should learn that the verdict is not the only thing to obtain in a trial in a court of justice, but that it must be obtained in an orderly and proper manner and that if counsel transcend just and proper bounds, the result obtained by such methods cannot stand.

The other matter is that the attorney who drew the will in controversy, and who was one of the subscribing witnesses, upon whose testimony to a considerable extent the defendant in this case would rely, after the probate of the will entered into a contract with the defendant for a contingent fee of twenty-five per cent of any amount that Mrs. Barker should receive and as collateral thereto received an assignment to the amount of $100,000 of her share in consideration of which he agreed to represent her in any suit which might be commenced to secure her share of the George Bell estate. While this fact had no legitimate bearing upon the question of the testamentary capacity of the decedent at the time he made the will, nor upon the question of undue influence exerted prior to or at the time of the making of the will, yet it was such a circumstance as could but prove grievously embarrassing when this attorney’s testimony was being taken in support of the will in whose support he has such great and pecuniary interest. In the hands of such zealous and forceful counsel as represented the plaintiffs it could not fail to have been made use of to the utmost degree in swaying the jury. We cannot *250ignore the fact that a jury is usually inclined to the view that a man should leave his property to his children, and is disinclined to follow the law as laid down by the court, that a testator of sound and disposing mind and not governed by undue influence, has a right to leave his own property as he pleases. From the matters alluded to, we are persuaded that the jury was moved by sympathy and passion to return a verdict which, in our opinion, is against the great weight of the evidence.

Under the doctrine of *Hagan*v. *Sone (supra)*it was not error to submit this case to the jury, but under the same case, it was the duty of this court, charged with the responsibility of examining the facts, when it has determined, in its judgment, that the verdict rendered is against the weight of evidence, unhesitatingly to set that verdict aside and order a new trial.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.