By the Court, Harris, P. J.
The law applicable to this case was stated with singular clearness and precision by the circuit [397]*397judge, in his charge to the jury. In a recent case, decided by the judicial committee of the privy council in England, upon an appeal from the decree of the prerogative court, Baron Parke, in delivering the judgment of the court, says: “The rules of law, according to which cases of this nature are to be decided, are two ; the first, that the onus probandi lies, in every case, upon the patty propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes, or prepares a will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." (Barry v. Butlin, 1 Curteis' Ecc. R. 637.) Both these rules are, in substance, embraced in the charge of the circuit judge and we must therefore assume that the jury were satisfied from the evidence, that the alleged will was, indeed, the true last will of Judith Dubos, and in truth expressed her real intentions.
The circumstances of this case were such as to create strong presumption against the validity of the act; a umptionso strong that it should only be overcome by very cle proof of the unbiassed intentiou of the testatrix to make such a disposition of her property as is contained in the will, and that it was executed by her with a full understanding of the nature and effect of the instrument. The will was drawn by the plaintiff himself; and, so far as it appears in evidence, without instructions from the testatrix. The plaintiff stood in a rela- tion of special confidence to the testatrix, both as her medical attendant and her confidential adviser. Considerable pains was shown to have been taken by the plaintiff to secure the presence of members of his own family as witnesses to the exe- cution of the will, and to exclude others from being presents his own family as witnesses to the exe cution of the will and to exclude others from being presents [398]*398The extent of the benefit to be.derived by the plaintiff from the will, if it is established, does not appear. But it was conceded upon the argument that the value of the real estate devised to the plaintiff by the will considerably exceeded the amount of legacies with which it is charged. The deceased was at the time laboring under the influence of a painful illness, which proved fatal a few hours afterwards. The objects of her bounty were all strangers to her blood, to the exclusion of an only brother. The case certainly presents a remarkable combination of unfavorable circumstances. By the civil law such a will would be absolutely void. Qui se scripeserit hceredem rendered void all the provisions in a will in his own favor. And though this rule has not been adopted in our own courts, they do demand satisfactory proof, in such cases, that the party executing the will clearly understood, and freely intended to make, that disposition of his property which the instrument purports to direct. The doctrine is well stated in Paske v. Ollat, (2 Phillimore, 323 :) “ Where the person who prepares the instrument and conducts the execution of it, is himself an interested person, his conduct must be watched as that of an interested person. Propriety and delicacy would infer that he should not conduct the transaction; and, a fortiori, where he is the confidential attorney of the deceased, and where the benefit conferred is to a considerable amount.”
Upon the argument of this case I was strongly inclined to think that the presumptions against the will, arising from the circumstances of the case,' ought to be held conclusive against the instrument; especially as there is an entire absence of all direct proof of instructions, or that the testatrix was even consulted in respect to the will itself, or knew its contents. But after a very full and careful examination of a great variety of adjudications upon kindred cases, I have, though not without considerable doubt and hesitation, come to the conclusion that the question was properly submitted to the jury; and although I might have been better satisfied, had the verdict been against the yaljdity of the transaction, yet that it cannot be set aside as against evidence.
[399]*399In respect to the capacity of the testatrix, it is proved that ■she was a woman of fair intellect and good education; that during her last sickness she retained her mental faculties. Dr. Nelson, who visited her the day after the will was executed, testifies that her disease was not of a character to affect her mind, and that when he saw her, her conversation was clear and intelligent.
In support of the will, the plaintiff has proved various declarations of the testatrix, tending very clearly to show that the will is in conformity with intentions long previously entertained. The evidence of mutual disaffection and dislike between the testatrix and her brother is quite clear and distinct. This estrangement had existed for several years. All intercourse between them had ceased. While such a state of complete alienation existed, it was to have been expected the sister would make such a will as should prevent her brother, with whose conduct she was so much dissatisfied, from enjoying her property. Accordingly, she is shown to have repeatedly declared her intention to seek elsewhere for the objects of her bounty. From the testimony in the case, there is some reason to believe that the defendant’s unkind ness towards his sister was the true cause of his exclusion from a participation in her estate; and, as was said in the case of Barry v. Butlin, above cited, that he was himself “ the conspirator against himself.” I think any one acquainted with the state of feeling existing between the sister and her brother, would not have expected to find in a testamentary disposition of her property any provision in his favor. He is shown on several occasions' to have employed language highly offensive to b.er, and nothing appears to have occurred subsequently, calculated to conciliate her affections.
If the brother, who seems to have been her only near relative, ■is to be set aside, who then would be so likely to share in her bounty as the plaintiff? She evidently had great regard and partiality for him. She repeatedly acknowledged her obligations to him and his family, for kindnesses, and contrasted their friendly offices with the neglect of her own relatives. She is [400]*400proved, moreover, more than once to have declared her intention that the plaintiff should have her farm after her death; and intimated, at least, that lie should have it for less than it was worth. I regard it, therefore, as highly probable from the relations of friendship and confidence which seem long to have existed between the plaintiff and the testatrix, that when she had determined to exclude her brother, the plaintiff would, to some extent, become the object of her bounty. It would seem from the evidence in the case that there was no one who would be likely to stand in competition with him.
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By the Court, Harris, P. J.
The law applicable to this case was stated with singular clearness and precision by the circuit [397]*397judge, in his charge to the jury. In a recent case, decided by the judicial committee of the privy council in England, upon an appeal from the decree of the prerogative court, Baron Parke, in delivering the judgment of the court, says: “The rules of law, according to which cases of this nature are to be decided, are two ; the first, that the onus probandi lies, in every case, upon the patty propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes, or prepares a will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." (Barry v. Butlin, 1 Curteis' Ecc. R. 637.) Both these rules are, in substance, embraced in the charge of the circuit judge and we must therefore assume that the jury were satisfied from the evidence, that the alleged will was, indeed, the true last will of Judith Dubos, and in truth expressed her real intentions.
The circumstances of this case were such as to create strong presumption against the validity of the act; a umptionso strong that it should only be overcome by very cle proof of the unbiassed intentiou of the testatrix to make such a disposition of her property as is contained in the will, and that it was executed by her with a full understanding of the nature and effect of the instrument. The will was drawn by the plaintiff himself; and, so far as it appears in evidence, without instructions from the testatrix. The plaintiff stood in a rela- tion of special confidence to the testatrix, both as her medical attendant and her confidential adviser. Considerable pains was shown to have been taken by the plaintiff to secure the presence of members of his own family as witnesses to the exe- cution of the will, and to exclude others from being presents his own family as witnesses to the exe cution of the will and to exclude others from being presents [398]*398The extent of the benefit to be.derived by the plaintiff from the will, if it is established, does not appear. But it was conceded upon the argument that the value of the real estate devised to the plaintiff by the will considerably exceeded the amount of legacies with which it is charged. The deceased was at the time laboring under the influence of a painful illness, which proved fatal a few hours afterwards. The objects of her bounty were all strangers to her blood, to the exclusion of an only brother. The case certainly presents a remarkable combination of unfavorable circumstances. By the civil law such a will would be absolutely void. Qui se scripeserit hceredem rendered void all the provisions in a will in his own favor. And though this rule has not been adopted in our own courts, they do demand satisfactory proof, in such cases, that the party executing the will clearly understood, and freely intended to make, that disposition of his property which the instrument purports to direct. The doctrine is well stated in Paske v. Ollat, (2 Phillimore, 323 :) “ Where the person who prepares the instrument and conducts the execution of it, is himself an interested person, his conduct must be watched as that of an interested person. Propriety and delicacy would infer that he should not conduct the transaction; and, a fortiori, where he is the confidential attorney of the deceased, and where the benefit conferred is to a considerable amount.”
Upon the argument of this case I was strongly inclined to think that the presumptions against the will, arising from the circumstances of the case,' ought to be held conclusive against the instrument; especially as there is an entire absence of all direct proof of instructions, or that the testatrix was even consulted in respect to the will itself, or knew its contents. But after a very full and careful examination of a great variety of adjudications upon kindred cases, I have, though not without considerable doubt and hesitation, come to the conclusion that the question was properly submitted to the jury; and although I might have been better satisfied, had the verdict been against the yaljdity of the transaction, yet that it cannot be set aside as against evidence.
[399]*399In respect to the capacity of the testatrix, it is proved that ■she was a woman of fair intellect and good education; that during her last sickness she retained her mental faculties. Dr. Nelson, who visited her the day after the will was executed, testifies that her disease was not of a character to affect her mind, and that when he saw her, her conversation was clear and intelligent.
In support of the will, the plaintiff has proved various declarations of the testatrix, tending very clearly to show that the will is in conformity with intentions long previously entertained. The evidence of mutual disaffection and dislike between the testatrix and her brother is quite clear and distinct. This estrangement had existed for several years. All intercourse between them had ceased. While such a state of complete alienation existed, it was to have been expected the sister would make such a will as should prevent her brother, with whose conduct she was so much dissatisfied, from enjoying her property. Accordingly, she is shown to have repeatedly declared her intention to seek elsewhere for the objects of her bounty. From the testimony in the case, there is some reason to believe that the defendant’s unkind ness towards his sister was the true cause of his exclusion from a participation in her estate; and, as was said in the case of Barry v. Butlin, above cited, that he was himself “ the conspirator against himself.” I think any one acquainted with the state of feeling existing between the sister and her brother, would not have expected to find in a testamentary disposition of her property any provision in his favor. He is shown on several occasions' to have employed language highly offensive to b.er, and nothing appears to have occurred subsequently, calculated to conciliate her affections.
If the brother, who seems to have been her only near relative, ■is to be set aside, who then would be so likely to share in her bounty as the plaintiff? She evidently had great regard and partiality for him. She repeatedly acknowledged her obligations to him and his family, for kindnesses, and contrasted their friendly offices with the neglect of her own relatives. She is [400]*400proved, moreover, more than once to have declared her intention that the plaintiff should have her farm after her death; and intimated, at least, that lie should have it for less than it was worth. I regard it, therefore, as highly probable from the relations of friendship and confidence which seem long to have existed between the plaintiff and the testatrix, that when she had determined to exclude her brother, the plaintiff would, to some extent, become the object of her bounty. It would seem from the evidence in the case that there was no one who would be likely to stand in competition with him.
The testatrix is also shown to have been a pious woman, and interested in the religious enterprises contemplated by the institutions which, by the will, are made her principal legatees. In April or May, previous to her death, she told Ann Van Gaasbeck that “ she would will the best part of her property for religious purposes, and would not will her brother any thing. Several years before, both the testatrix and her sister, who had subsequently died leaving all her property to the testatrix, had told David Vandemarlr, who worked for them, that “their brother .should not have any of their property, but that. Dr. Crispell should have it.; and that it should go for missionaries, churches and religious purposes.” They spoke of it several times during the two years he lived with them. She told Abraham Carney, the year before she died, that “ the missionaries and those who were not able to buy bibles, would thank her more for her property than her friends; and she did not think they should have any of it.” In a conversation with Edward Lilts, about her property, in the spring of 1844, she said “ the doctor wanted the farm, and it was likely he would have it.” Benjamin De Graaf swears to a conversation with the two sisters as early as 1841, in which they expressed their intention that Doctor Crispell should have the property, because he had been their particular friend, and always ready to help them in their difficulties. This witness also stated that he had repeatedly heard the testatrix say that John could not expect to have any of the property.
These are the probabilities in favor of the will. I think any [401]*401one acquainted with the feelings and purposes of the testatrix, would have been prepared to expect to find in her will provisions not unlike those found in the instrument in question. It is true that under the unfavorable circumstances which attended the execution of this will, it would have been much more satisfactory to have had evidence that the testatrix gave instructions for drawing the will, or that it was read over by her or to her. Prudence and propriety, both, should have dictated this precaution to the plaintiff. It would have relieved him from the suspicion which must ever hang over the transaction. But although such evidence would unquestionably have been the most satisfactory, I am not prepared to say that it was indispensable. I have been able to find no case in which this particular description of proof has been required. On the contrary, I understand the doctrine to be well settled that, while it is necessary in such cases to prove that the will is “ the spontaneous intention” of the testator, such proof may be made out in any mode in which his real intentions can be ascertained.
In Butlin v. Barry, already cited, the testator, by his will, gave to the solicitor who drew it, £3000 ; to his butler £3000; and to Butlin, his medical attendant, £2000, together with the residue of his property after the payment of some other small legacies, appointing the latter his sole executor. An only son was excluded from any benefit under the will; but the proof of estrangement was clear and distinct. The testator was shown to have been a man of a low grade of intellect. In reference to the kind of evidence necessary to support the will, Baron Parke says: “ It cannot be necessary that in all such cases, even if the testator’s capacity is doubtful, the precise species of evidence of the deceased’s knowledge of the will is to be in the shape of instructions for, or reading over, the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof by which the cognizance of the contents of the will may be brought home to' the deceased. The court would naturally look for such evidence. In some cases it might be impossible to establish a will without it, but it has nd right in every case to require it,”
[402]*402In a more recent case, (Darling v. Loveland, 2 Curteis, 225,) one Petworlh, who was a man of weak mind and addicted to intemperance, by his will executed in due form, gave his .property, amounting to about £1800, after charging it with the payment of some small annuities, to his two executors, John Darling the landlord of a public house, and one Parker, the solicitor who drew the will. The probate of the will was opposed by Charlotte Loveland, a niece and the only next of kin of the testator. Notwithstanding the strong circumstances of suspicion attending the execution of the will, it was sustained. Sir Herbert Jenner, in delivering the judgment of the prerogative court, uses the following language—“I never understood the doctrine of this court to go beyond this, namely, that it is a circumstance which should awaken the vigilance and jealousy of the court to watch and see whether, by some means or other, a knowledge of the contents was brought home to the deceased, or it was shown that it was the intention of the deceased to make such a disposition of his property, which the court would accept as sufficient proof, notwithstanding that the drawer of the will took a considerable benefit under it. I do not understand that there is any technical rule, which requires proof that a will has been read to, or by, the deceased, or that it was prepared from instructions given by him. If satisfied that the instrument contains the real intentions of the testator, although there is no proof of reading over, and no proof of instructions, it will grant probate of it.”
To the same effect are all the other authorities I have consulted on the question. (See Shelford on Lunacy, 317, and cases there cited.) Even the case of Ingram v. Wyatt, (1 Haggard Ecc. R. 384,) which was much relied upon by the counsel for the defendant upon the argument, and in which the prerogative court held that the presumptions and suspicions which attached to the transactions, and they were indeed very strong, were not sufficiently rebutted by the evidence, was subsequently reversed upon appeal to • the court of delegates. Lord Chancellor Brougham refused to grant a commission of [403]*403review, on the ground that the court was satisfied that the circumstances of the case were sufficient to rebut the presumption against the will. ( Wyatt v. Ingram, 3 Hagg. Ecc. R. 466.)
In this case the jury, after having been sufficiently reminded of the presumptions against the validity of the will arising from the circumstances under which it was executed, have by their verdict declared that the evidence is sufficient to overcome the presumptions against the transaction. They were cautioned to look with vigilance and jealousy into the proofs, to see whether there was evidence of free and active testamentary intention on the part of the testatrix, and they have said by their verdict that the circumstances proved sufficiently manifest the intention of the testatrix to dispose of her property in the manner provided in the will; that when she executed it she knew its import and approved its contents. In view of the rules of law I have already noticed, I think the jury were warranted in finding such a verdict; and if they were, this court has no right to disturb it. The motion for a new trial must therefore be denied.