Clarke, J.:
Appeal from a judgment entered upon a. verdict for plaintiffs in an action brought in the Supreme Court under section 2653a of the Code of Civil Procedure, to determine the validity of the probate of the will of Charles H. Heyzer, deceased, and from an order refusing to set the verdict aside and grant a' new trial. The question of undue influence was taken from the jury by the learned trial court, the question of testamentary capacity alone being submitted.
Charles H. Heyzer Was sixty-three years of age at the time of his death. For upwards of thirty years he had been employed in the custom house. He was a prominent and active Mason and had a very wide acquaintance. He was married to Elizabeth K. prior to 1867, and had by her seven children, five of whom survive. The widow and the five children are the plaintiffs in this action. The period during which the decedent and his wife lived together does not clearly appear from the evidence, but they separated many years ago. After the separation the testator, boarded with a Mrs. Morris and her widowed daughter Mary Ann, called throughout this record Polly. An intimacy between testator arid Polly resulted in their assuming the relations of man and wife, which continued for at least twenty-five years and until the time of his death. To his friends Polly was known as his wife; - she was introduced. as such; took part in social affairs as such, arid was everywhere recognized as such; she lived with him openly, sustaining the relations of a dutiful wife. His father and mother were nursed by her in their last illness, and his father died in,her arm's. Their parents lived under the same roof with them. No children were born to [315]*315them. Although his children by his lawful wife were adults over thirty,, he continued to contribute toward their support. He had no association with his daughters and very little with his sons, and to those who knew the facts expressed himself bitterly about the character and actions of his children.
In December, 1903, Mr. Heyzer ivas taken ill with endarteritis which manifested itself by a broken or plugged artery in the foot, which suppurated. On February 6, 1904, Mr. Heyzer requested Mr. Alfred E. Ommen, who was then a city magistrate, to prepare his will. Although for many years an intimate friend of Mr. Heyzer and Polly, Judge Ommen had no knowledge of the situation until Mr. Heyzer explained his marital .condition on that day and directed that a will be made leaving everything to Polly. The will drawn as directed was brought to the house the next morning, Sunday, February 7,1904, and was executed between ten and eleven a. m. in the presence of Judge Ommen, 1ns probationary officer, Scott, and an old friend of the family Mrs. Haight, who was assisting in the nursing of Mr. Heyzer. On the next Monday morning, February eighth, .at about two a. m. Mr. Heyzer had a stroke of apoplexy and died at about seven o’clock in the forenoon.
The plaintiffs claim that at the time of the factum of the will the decedent did not have testamentary capacity. The jury by its verdict has so found. We are to consider whether or no that verdict is against the weight of the evidence. The probate of the will by the surrogate is made by section 2653a of the Code of Civil Procedure prima facie evidence of the. due execution and validity of the will, and the burden is placed upon the contestants of establishing the testamentary incapacity .of the testator. In Hagan v. Sone (174 N. Y. 317) the Court of Appeals set aside the direction of a. verdict in favor of the will, saying, however: “There was evidence in support of the allegations of the complaint sufficient for the consideration of the jury. The value and bearing of the evidence as well as its construction, when not clear, was for the body to which is committed the decision of all questions of fact. * * * Wills are not to be set aside by juries except for the gravest reasoqs. A person has 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 inca[316]*316pacify, or of undue influence, that courts or juries may'annul his testamentary act. * * *■ . The plaintiff’s proof might not have .satisfied the jury "that the deceased was either incompetent to make ■ a will or subjected to any undue influence, but there was enough of it to require us to hold that the jury was the branch, of the court that the law required to pass upon it. 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.” The same learned court said in McDonald v. Metropolitan St. Ry. Co. (167 N. Y. 70) : “ So -long’ as a question of fact exists, it is for the. jury and not for the court. ■ If the evidence is insufficient, or if that which has been introduced.is conclusively answered, so that as á matte! of law no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it. * * * The credibility-of witnesses, the effect and weight of conflicting and contradictory testimony, are all questions of -fact and not questions of law. 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 inay be set aside, but a new trial must be granted before another j.uryj so that the issue of fact may be- -ultimately determined by the tribunal to which those, questions are confided;”
In the cáse at bar there is no evidence whatever given by any witness who saw testator prior to the attack on-Monday morning,-' which immediately preceded his death, as -to anydel-usions of mental impairment. Of physical weakness there was proof. H.e was undoubtedly suffering from, a fatal' malady, as the event showed. The plaintiffs called Dr. Ellison, who was a practicing physician and surgeon, but did not attend testator professionally. He called socially on January first and found a. spot óf wet gangrene, on his. left foot-. He observed that,he was suffering from a fatal disease, but that his mind was clear; he talked with- him on Masonic and-other subjects, and he appeared thoroughly to understand. There was -no evidence of septicaemia or blood poisoning on that day. Dr. Sauvalle was the attending, physician... He„began treating testator on December sixteenth. He had endarteritis, an inflammation of the inner eofés of the artery. He saw him every day until he died. Testator died, suddenly, in his opinion, from a stroke of apoplexy at, night. The brain was clear to the very end. Witness requested [317]*317Mr. Heyzer to make his will two or three days before his death, because he found him a little weaker and he knew how fatal the disease was. On the Friday before his death Mr. Heyzer’s mind was perfectly clear. His talk was perfectly rational. He was of sound mind. The first indication of the trouble in the brain, the apoplexy or embolism, was on Monday morning at two o’clock. On Sunday morning when he called his "pulse was about 90 and temperature 100. When he came at two the next morning the pulse was 130 and very irregular; temperature, 103 ; his arm paralyzed. He saw him Sunday at about twelve o’clock noon; his pulse was 90. Heyzer told the witness that he had finished his will. Up to two o’clock oh Monday morning he had not been in an unconscious state or semi-conscious state, of state of coma during his illness. There "was no sign of delirium on Sunday. He remained with him about twenty minutes ; talked with him. , His mental condition was good.
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Clarke, J.:
Appeal from a judgment entered upon a. verdict for plaintiffs in an action brought in the Supreme Court under section 2653a of the Code of Civil Procedure, to determine the validity of the probate of the will of Charles H. Heyzer, deceased, and from an order refusing to set the verdict aside and grant a' new trial. The question of undue influence was taken from the jury by the learned trial court, the question of testamentary capacity alone being submitted.
Charles H. Heyzer Was sixty-three years of age at the time of his death. For upwards of thirty years he had been employed in the custom house. He was a prominent and active Mason and had a very wide acquaintance. He was married to Elizabeth K. prior to 1867, and had by her seven children, five of whom survive. The widow and the five children are the plaintiffs in this action. The period during which the decedent and his wife lived together does not clearly appear from the evidence, but they separated many years ago. After the separation the testator, boarded with a Mrs. Morris and her widowed daughter Mary Ann, called throughout this record Polly. An intimacy between testator arid Polly resulted in their assuming the relations of man and wife, which continued for at least twenty-five years and until the time of his death. To his friends Polly was known as his wife; - she was introduced. as such; took part in social affairs as such, arid was everywhere recognized as such; she lived with him openly, sustaining the relations of a dutiful wife. His father and mother were nursed by her in their last illness, and his father died in,her arm's. Their parents lived under the same roof with them. No children were born to [315]*315them. Although his children by his lawful wife were adults over thirty,, he continued to contribute toward their support. He had no association with his daughters and very little with his sons, and to those who knew the facts expressed himself bitterly about the character and actions of his children.
In December, 1903, Mr. Heyzer ivas taken ill with endarteritis which manifested itself by a broken or plugged artery in the foot, which suppurated. On February 6, 1904, Mr. Heyzer requested Mr. Alfred E. Ommen, who was then a city magistrate, to prepare his will. Although for many years an intimate friend of Mr. Heyzer and Polly, Judge Ommen had no knowledge of the situation until Mr. Heyzer explained his marital .condition on that day and directed that a will be made leaving everything to Polly. The will drawn as directed was brought to the house the next morning, Sunday, February 7,1904, and was executed between ten and eleven a. m. in the presence of Judge Ommen, 1ns probationary officer, Scott, and an old friend of the family Mrs. Haight, who was assisting in the nursing of Mr. Heyzer. On the next Monday morning, February eighth, .at about two a. m. Mr. Heyzer had a stroke of apoplexy and died at about seven o’clock in the forenoon.
The plaintiffs claim that at the time of the factum of the will the decedent did not have testamentary capacity. The jury by its verdict has so found. We are to consider whether or no that verdict is against the weight of the evidence. The probate of the will by the surrogate is made by section 2653a of the Code of Civil Procedure prima facie evidence of the. due execution and validity of the will, and the burden is placed upon the contestants of establishing the testamentary incapacity .of the testator. In Hagan v. Sone (174 N. Y. 317) the Court of Appeals set aside the direction of a. verdict in favor of the will, saying, however: “There was evidence in support of the allegations of the complaint sufficient for the consideration of the jury. The value and bearing of the evidence as well as its construction, when not clear, was for the body to which is committed the decision of all questions of fact. * * * Wills are not to be set aside by juries except for the gravest reasoqs. A person has 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 inca[316]*316pacify, or of undue influence, that courts or juries may'annul his testamentary act. * * *■ . The plaintiff’s proof might not have .satisfied the jury "that the deceased was either incompetent to make ■ a will or subjected to any undue influence, but there was enough of it to require us to hold that the jury was the branch, of the court that the law required to pass upon it. 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.” The same learned court said in McDonald v. Metropolitan St. Ry. Co. (167 N. Y. 70) : “ So -long’ as a question of fact exists, it is for the. jury and not for the court. ■ If the evidence is insufficient, or if that which has been introduced.is conclusively answered, so that as á matte! of law no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it. * * * The credibility-of witnesses, the effect and weight of conflicting and contradictory testimony, are all questions of -fact and not questions of law. 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 inay be set aside, but a new trial must be granted before another j.uryj so that the issue of fact may be- -ultimately determined by the tribunal to which those, questions are confided;”
In the cáse at bar there is no evidence whatever given by any witness who saw testator prior to the attack on-Monday morning,-' which immediately preceded his death, as -to anydel-usions of mental impairment. Of physical weakness there was proof. H.e was undoubtedly suffering from, a fatal' malady, as the event showed. The plaintiffs called Dr. Ellison, who was a practicing physician and surgeon, but did not attend testator professionally. He called socially on January first and found a. spot óf wet gangrene, on his. left foot-. He observed that,he was suffering from a fatal disease, but that his mind was clear; he talked with- him on Masonic and-other subjects, and he appeared thoroughly to understand. There was -no evidence of septicaemia or blood poisoning on that day. Dr. Sauvalle was the attending, physician... He„began treating testator on December sixteenth. He had endarteritis, an inflammation of the inner eofés of the artery. He saw him every day until he died. Testator died, suddenly, in his opinion, from a stroke of apoplexy at, night. The brain was clear to the very end. Witness requested [317]*317Mr. Heyzer to make his will two or three days before his death, because he found him a little weaker and he knew how fatal the disease was. On the Friday before his death Mr. Heyzer’s mind was perfectly clear. His talk was perfectly rational. He was of sound mind. The first indication of the trouble in the brain, the apoplexy or embolism, was on Monday morning at two o’clock. On Sunday morning when he called his "pulse was about 90 and temperature 100. When he came at two the next morning the pulse was 130 and very irregular; temperature, 103 ; his arm paralyzed. He saw him Sunday at about twelve o’clock noon; his pulse was 90. Heyzer told the witness that he had finished his will. Up to two o’clock oh Monday morning he had not been in an unconscious state or semi-conscious state, of state of coma during his illness. There "was no sign of delirium on Sunday. He remained with him about twenty minutes ; talked with him. , His mental condition was good. His mind was clear; he was of sound mind; his conversation and manner were rational. He did not notice any, change in his condition-from what" it was the week before. There was no change at all in his naental condition.
Dr. Sauvalle said that before the surrogate he testified: “ Three or four days before his death I found the brain affected, and I thought the case was hopeless,” but explained that he did not mean that he was out of his mind at all; that he found his brain a little weakened; when he said “affected” he meant weakened; that his brain was clear to the very end; that he did not observe any impairment of mind on Friday; he was not as bright as usual, jocular, but his mind was clear.
Mrs. Smith testified she was in Mi. Heyzer’s room at about eight o’clock in the evening of Friday before his death and said to him, Hood evéning, Mr. Heyzer,” and he never turned his head or answered. On cross-examination she said he might have been asleep.
Three physicians were called who had never attended the testator, who answered the hypothetical question framed by plaintiffs’ attorney that the person pictured in that question was not in their opinion competent to make a will at the time in question.
Such evidence is competent, of course, and its weight in the first instance is for the jury. The question, however, is always framed, [318]*318assuming the facts most favorable to the side propounding it and omitting the unfavorable facts. It is hardly necessary +o add- to what has so often been said as to the unsatisfactory character of such testimony when contrasted with the'.positive evidence- of attending physicians and direct testimony of lay observers.
For the defendants Judge O'mmen, who drew the will and was one of the subscribing witnesses and was oné of testator’s .intimate friends, had been associated with 'him in the' custom house and- in Masonic orders for years and for two or three years had seen him every-day and had never known that Polly was not his lawful wife. He.had spoken to testator several times about making Ins will. On the Saturday before his death Ommen called-on him about h'alf-past eight in the evening, and, after talking about an extension óf leave of absence on account of his sickness, which he had obtained for him, the testimony proceeds: “I said to him, ‘ Have you thought about that will, Charlie ? ’. and then there was not anything said, I should think, for half a minute, or probably a minute, and then he turned to me and said, ‘Al, I’ve been a damned liar to you.’, I said, ' Why, Charlie ? ’ And then there was not anything said for about a minute. He and I just sat there in silence, and he said, ' I’m not married to this woman, Ah’ Well,’.I said, ‘have you ever been married before, Charlie?’- He said, ‘Yes.’ ‘Well,’ I said,‘.is the woman jiving ? ’ He said, ‘ Yes.’ ' I said, ‘ Did you have any children?’ He said,‘Yes.’ 'Well,’ I said,‘what do you want to do., Charlie ? ’ Then there was a little lull for about, I should-think, fifteen seconds between hiín and me and he turned to me and said, ‘ Al, I want this-woman here to have everything I’ve got. She has ■been as true as steel to "me for over thirty-four ye are, and I want her to have everything I’ve got.’ I said, ‘Well, how about your children, Charlie?’ He saiid, ‘Ho, I don’t want to give them any--I thing.’ I said, ‘ What about all these medals that the, fellows have. been giving you?’ ‘‘Oh,’he said, ‘ give them all to Polly * * and- she will."do what is right with them.’ I said, Do you want mo | ■to draw a will along those lines ? ’ and he said ‘ Yes.’ ' How,’ I s,aid, ' I will go home and. draw it.’ So we had a-little further talk and 11 came out. * * * I asked who he wanted to make the executor of his will, and he said ‘ Charlie Richards.’ ” The witness, having I written out the will at-his home that night,.took it to Mr. Heyzer’s [319]*319house on Sunday- morning between ten and eleven: With him went his probationary officer, Scott. First ■ the will was read to Heyzer alone, and he said it was all right, and then Scott and Mrs. Haight were called into the room and it was duly signed and declared. The other two witnesses gave corroborative evidence, and all testified that testator was of sound mind and free from restraint or undue influence.
Dr. Hartley testified that he was called in consultation by Dr. Sauvalle and saw testator once about the twenty-third or twenty-fourth of January, about two weeks before his death. “ His mental condition was good. He talked with me. It was normal. I think he was sound. * * ■ * There was no lesion of the brain when I saw him in January. * * * I think he died from the original poison of the diabetes in an apoplectic attack with coma. * * * My observation was that the man was in good condition when I saw him; mentally correct. At the time I saw him he was all right. * * * Assuming that during all the day -preceding the death of Mr. Heyzer, he was bright mentally, his mind was active and rational in his conversation with friends who called, and that there was no rise of temperature until the next morning, no increase in pulse until the next morning, and no coma or unconsciousness until the next morning, I think it would indicate that he was capable of transacting business that Sunday morning before his death. * * * He might have gone into a coma and been perfectly sane, perfectly correct mentally up to within an hour or two of his death. * *' * The diseased condition that I found in his body is not inconsistent with complete mental faculties, he dying at seven o’clock in the morning, and not inconsistent with complete possession of mental faculties on the -Sunday evening preceding his death.” Matthews had half an hour’s talk with testator at about seven-thirty in the evening of Saturday, February sixth; talked about Masonic affairs, and Heyzer told him where to find the rituals, and Matthews afterward found them at the indicated place. He asked Heyzer where he got the subject-matter for lectures that he had. He said, “You get Pike’s Book. That is my Bible and that is where I got all that matter from.” He explained what Pike’s book was and where it could be found. He noticed no difference in his conversation that night, it was rational certainly. Crawford [320]*320had been a fellow clerk in the custom house between twenty-five and thirty years; called on him the Thursday night before his death. He was cheerful'under the circumstances. His-mind-was clear and bright; talkedv about the work in the Scottish Bite.
Dr. ¡Reynolds, an intimate friend of twenty years, saw him from the first of January to the time of his death, twenty-five or thirty times; saw him on Saturday morning. “There w.as no change in Iris speech. ■ He looked like a very sick man. * * Tlie conversation had with him impressed me" as being entirely rational. * * * His mind certainly was not' affected.” He called again. Sunday night before his death, between seven and eight. “ He extended his hand and called me by name when I came in.”' He was- “ entirely rational.” . .
Palmer, who was in the same department at the custom house with testator for fifteen years, saw him about three o’clock the Saturday. afternoon before his death." He' said he was not suffering as much .pain as usual and asked about the health of witness’ wife and in regard to the boys" down in the office. The witness saw no difference in his manner, except he wag quieter. His speech, .appear - anee and manner impressed the witness as being perfectly rational. Roberts, an insurance broker and old friend, saw him Saturday afternoon ;. was with him fifteen minutes; the witness repeated on the stand quite, a talk about Masonic affairs, and stated Heyzer was absolutely rational. Lefevre saw him about five o’clock in the ■ afternoon o" Saturday and talked with him ten or fifteen .minutes;' he was rational. Blake, manager of a drug store and intimate friend for twelve years, saw him about noon on Saturday for twenty minutes or half an hour; talked with him about a case lie-had in litigation, perfectly rational. Duggan was there Saturday night" and Sunday,. Hays, intimate friend for-twenty years, talked with him Saturday morning about ten. Heyzer talked with him about some papers. in his closet at the club and sent him for them. He did not find the one Heyzer wanted the first time, but was sent back for it, and found' it where Heyzer told him to look. Heyzer also sent him for flowers. He was “as rational as. ever 1 seen him.” Mrs.. Haight helped také care of testator for the seven weeks of his sickness and detailed many occurrences, including the factum of the will and "the check episode afterwards.-; “ Mr, Ilev[321]*321zer’s speech and his acts and conduct on those other occasions, those other days and nights * * * about which I have testified impressed me as rational.”
Moore, a clerk in the Mercantile Bank and a. friend of thirty years, called at the house on Sunday afternoon; talked with him for fifteen minutes. Heyzer talked about the witness going to Dr. Ellison for treatment for himself. Heyzer also asked what date it was, and being told, said to Folly, “ That check is due to-morpw ; * * * I guess you better let me indorse it and have Steve cash it for you.” He did indorse it. “ He told me to have the check cashed and give the money to Polly. Mr. Heyzer died the next morning before the bank opened.” He was perfectly rational. Salomon testified that he had given the check to Heyzer in the early part of the month in payment of rent, dated ahead, the eighth of February.. The check was produced,, and other corroborative evidence completely established the incident.
This is most striking. On the Sunday afternoon before he died, after the making of the will, of his own motion, Heyzer suddenly asks the date, recalls that a check is dated the next day, asks for it, indorses it and delivers it for collection. He is thus shown to have been able to recall his business affairs and transact them almost to the very end, so that- it appears from the testimony that fourteen different people, doctors, custom house officers, Masonic friends and old business acquaintances saw testator and conversed with him during the two last days of his life. .No human being who saw him during that period gives evidence of one irrational act, of a delusion, of one fact which, tends to suggest, much less to prove, testamentary incapacity. Every one of these witnesses testifies to the conversations held with him and to his soundness of mind. Nor do the provisions of the will itself shock the mind so as to lend color to the suggestion of mental infirmity. The will, while.it diverts the property from what may be called its natural channel, his lawful family, and bestows it upon the woman with whom for many years he had been living without the sanction of law, yet cannot be said to be unreasonable. He had been entirely separated from his wife for many years. The youngest of his children was thirty years of age. His daughters he never saw, his [322]*322sons, but seldom. This woman had been recognized by his world' as his wife; she had been true and loyal, he said, for thirty-four years; she had deVoted her life to him and had been accepted by his parents. His last card-was for this life companion, illicit though the relation was. We are not called upon to approve his morals,or sanction his mode of life. The law, which alone we are to expound, is; that a man, irrespective of his moral character,, being, of sound and disposing mind, not moved by undue influence, and not under restraint, may, if he observes the formalities of the law governing the execution" of a last will and testament, dispose of his property as he will. The verdict rendered'upon the evidence in this case was against the weight thereof and must be set aside.
The judgment and order should be reversed and a new trial ordered, with costs to appellants to abide the event.
O’Brient, P. J., Ingraham and Laughlin, JJ., concurred, Patterson, J., concurred in result.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event.