HARDIN, P. J.
On the 23d of March, 1886, Harrison Shannon executed his will, which contained a provision as follows:
“If I do not myself erect, or cause to be erected, in my lifetime, a new church edifice on the ground in Dundee aforesaid, on which the church edifice now occupied as a place of public worship by the Baptist Church of which I am a member is situated, then I give and bequeath to my said executrix, out of my said personal estate, the sum of ten thousand dollars, in trust, to be used and expended in the erection and furnishing of a new church edifice on the grounds aforesaid.”
The bequest was accompanied with a proviso that the trustees of The church should, within one year after his decease, proceed to enter into a valid contract for the erection of the new church at an expenditure of about the sum of $13,000. The will also contained a provision that, in case he should have commenced, or caused to be commenced, the erection of a church at the time of his death, and the same should not be completed, his executrix was to apply the excess of said bequest of $10,000 over the amount of moneys which he may have expended or rendered himself liable for in and about such new edifice and furniture, to the completion of said new edifice and the furnishing thereof. He also gave all the remainder of his estate to his daughter, Mary S. Harpending, subject to the directions and trusts contained in the will. On the 16th day of February, 1895, he executed a codicil, which contained the following provision:
“I give and bequeath to the Dundee Baptist Church one thousand dollars, the same to be kept by the said church properly and safely invested, and the interest thereon to be collected yearly and paid to the said church, and the said church to use the said interest in such manner as the church deems best and proper, and for such purposes as the said church may direct; the principal sum to be kept invested forever.”
That codicil contained no other provision. On the 19th day of March, 1895, the testator executed a second codicil, which contained the following language:
“I hereby revoke the former codicil made by me, in and by which I bequeathed to the Dundee Baptist Church one thousand dollars. Now, by this codicil to my said will, I give and bequeath to the Dundee Baptist Church, four thousand dollars, and I direct my said executors to pay the same to said church within one year after my death, and at the time of making such payment they must take a [672]*672receipt therefor signed by the trustees of the said church; and 1 further direct' said church to keep the said money well invested, and to collect the income therefrom, and apply the same to the support and maintenance of the church, and in such manner as. they think proper, but they must use no part of the principal sum, but must keep the same invested forever. .And I further bequeath to my wife the sum of three hundred dollars per j-ear for each and every year as long as she lives, the first of such payments to be made to her six months after my death.”
It appeared in the evidence that she was a second wife, and that he had made some other provision for her not mentioned in either his will or his codicils.
It seems, from the'decision filed by the surrogate and the judgment entered thereon, that the will of 1886 and the codicil executed in February, 1895, and the codicil executed on the 19th of March, 1895, are adjudged to have been duly executed, and that the same were genuine and valid, “except as to the devise to the Dundee Baptist Church in the second codicil.” The judgment also adjudges that the deceased, • “at the time of executing the same, was, in all respects, competent to make a last will and testament, and to devise real estate, and was not under any restraint, only in relation to the gift to the Dundee Baptist Church, which was secured by undue influence.” And the judgment establishes the will and codicils in every respect as having been made without any restraint, “except in relation to the gift to the Dundee Baptist Church, which was secured by undue influence.”
The testator was 78 years of age at the time of making the second codicil, and had been for a considerable length of time an invalid, suffering with some complications and diseases of a catarrhal nature. In his lifetime he had been a man of great vigor in body and considerable intellectual force and will power, and continued in charge of his affairs, with some aid from his daughter, Mrs. Harpending, and his wife, until near the close of his life. The evidence relating to the execution of the codicil on the 19th of March tends to establish that he was then of sound mind and memory, and comprehended the nature of the changes he was making, and executed the will in the presence of the subscribing witnesses, as well as in the presence of the attorney, Wilkin, who drew the codicil, and all the formalities required by the statute were complied with. In the large volume of evidence that was produced before the surrogate, it is quite manifest that the testator had an ardent and sincere desire for the prosperity of the church of which he was a member, and which he had fostered to a very liberal extent in his lifetime. There is some evidence which warrants the conclusion that the testator had been accustomed to contribute in the neighborhood of $250 annually for the support of the church, and that he contemplated his departure, and that the church would be bereft of the subscription which they had been accustomed to receive from him, and that he indicated a desire to make a provision for the church to such an extent as that the interest thereon would be equivalent to the contribution which he had been accustomed to make annually for its support. Prior to the execution of the codicil on the 19th of March, he had avowed an intention to make a provision for the church to an extent equal to that which was mentioned in the second codicil. Subsequent to the execution of the [673]*673codicil, he declared that he had made such a provision for the church, and stated one of the reasons therefor was that the church should continue to receive a sum about equivalent to the subscription which he had been accustomed to make.
The fact that he was advanced in years, and somewhat enfeebled in body and mind, at the time of the execution of the second codicil, do not indicate an incapacity to execute the same. He seemed to be in possession of his mental powers, and capable of understanding and appreciating the extent and condition of his property, and the nature of the act that he was engaged in while executing a codicil to his will. In Re Snelling, 136 N. Y. 515, 32 N. E. 1006, it was said:
“What the law terms ‘undue influence’ must be such as overpowers the will of a testator, and subjects it to the will and control of another. It is not established by proof simply tending to show that the testator, acting from motives of affection or gratitude, gave his property to strangers to his blood.”
The evidence discloses a state of facts not unusually attending persons of the testator’s age, especially after his health became somewhat impaired, and that on several days he would be apparently in quite a vigorous condition of mind and memory, and that other days he would be more affected by the ailments which afflicted him.
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HARDIN, P. J.
On the 23d of March, 1886, Harrison Shannon executed his will, which contained a provision as follows:
“If I do not myself erect, or cause to be erected, in my lifetime, a new church edifice on the ground in Dundee aforesaid, on which the church edifice now occupied as a place of public worship by the Baptist Church of which I am a member is situated, then I give and bequeath to my said executrix, out of my said personal estate, the sum of ten thousand dollars, in trust, to be used and expended in the erection and furnishing of a new church edifice on the grounds aforesaid.”
The bequest was accompanied with a proviso that the trustees of The church should, within one year after his decease, proceed to enter into a valid contract for the erection of the new church at an expenditure of about the sum of $13,000. The will also contained a provision that, in case he should have commenced, or caused to be commenced, the erection of a church at the time of his death, and the same should not be completed, his executrix was to apply the excess of said bequest of $10,000 over the amount of moneys which he may have expended or rendered himself liable for in and about such new edifice and furniture, to the completion of said new edifice and the furnishing thereof. He also gave all the remainder of his estate to his daughter, Mary S. Harpending, subject to the directions and trusts contained in the will. On the 16th day of February, 1895, he executed a codicil, which contained the following provision:
“I give and bequeath to the Dundee Baptist Church one thousand dollars, the same to be kept by the said church properly and safely invested, and the interest thereon to be collected yearly and paid to the said church, and the said church to use the said interest in such manner as the church deems best and proper, and for such purposes as the said church may direct; the principal sum to be kept invested forever.”
That codicil contained no other provision. On the 19th day of March, 1895, the testator executed a second codicil, which contained the following language:
“I hereby revoke the former codicil made by me, in and by which I bequeathed to the Dundee Baptist Church one thousand dollars. Now, by this codicil to my said will, I give and bequeath to the Dundee Baptist Church, four thousand dollars, and I direct my said executors to pay the same to said church within one year after my death, and at the time of making such payment they must take a [672]*672receipt therefor signed by the trustees of the said church; and 1 further direct' said church to keep the said money well invested, and to collect the income therefrom, and apply the same to the support and maintenance of the church, and in such manner as. they think proper, but they must use no part of the principal sum, but must keep the same invested forever. .And I further bequeath to my wife the sum of three hundred dollars per j-ear for each and every year as long as she lives, the first of such payments to be made to her six months after my death.”
It appeared in the evidence that she was a second wife, and that he had made some other provision for her not mentioned in either his will or his codicils.
It seems, from the'decision filed by the surrogate and the judgment entered thereon, that the will of 1886 and the codicil executed in February, 1895, and the codicil executed on the 19th of March, 1895, are adjudged to have been duly executed, and that the same were genuine and valid, “except as to the devise to the Dundee Baptist Church in the second codicil.” The judgment also adjudges that the deceased, • “at the time of executing the same, was, in all respects, competent to make a last will and testament, and to devise real estate, and was not under any restraint, only in relation to the gift to the Dundee Baptist Church, which was secured by undue influence.” And the judgment establishes the will and codicils in every respect as having been made without any restraint, “except in relation to the gift to the Dundee Baptist Church, which was secured by undue influence.”
The testator was 78 years of age at the time of making the second codicil, and had been for a considerable length of time an invalid, suffering with some complications and diseases of a catarrhal nature. In his lifetime he had been a man of great vigor in body and considerable intellectual force and will power, and continued in charge of his affairs, with some aid from his daughter, Mrs. Harpending, and his wife, until near the close of his life. The evidence relating to the execution of the codicil on the 19th of March tends to establish that he was then of sound mind and memory, and comprehended the nature of the changes he was making, and executed the will in the presence of the subscribing witnesses, as well as in the presence of the attorney, Wilkin, who drew the codicil, and all the formalities required by the statute were complied with. In the large volume of evidence that was produced before the surrogate, it is quite manifest that the testator had an ardent and sincere desire for the prosperity of the church of which he was a member, and which he had fostered to a very liberal extent in his lifetime. There is some evidence which warrants the conclusion that the testator had been accustomed to contribute in the neighborhood of $250 annually for the support of the church, and that he contemplated his departure, and that the church would be bereft of the subscription which they had been accustomed to receive from him, and that he indicated a desire to make a provision for the church to such an extent as that the interest thereon would be equivalent to the contribution which he had been accustomed to make annually for its support. Prior to the execution of the codicil on the 19th of March, he had avowed an intention to make a provision for the church to an extent equal to that which was mentioned in the second codicil. Subsequent to the execution of the [673]*673codicil, he declared that he had made such a provision for the church, and stated one of the reasons therefor was that the church should continue to receive a sum about equivalent to the subscription which he had been accustomed to make.
The fact that he was advanced in years, and somewhat enfeebled in body and mind, at the time of the execution of the second codicil, do not indicate an incapacity to execute the same. He seemed to be in possession of his mental powers, and capable of understanding and appreciating the extent and condition of his property, and the nature of the act that he was engaged in while executing a codicil to his will. In Re Snelling, 136 N. Y. 515, 32 N. E. 1006, it was said:
“What the law terms ‘undue influence’ must be such as overpowers the will of a testator, and subjects it to the will and control of another. It is not established by proof simply tending to show that the testator, acting from motives of affection or gratitude, gave his property to strangers to his blood.”
The evidence discloses a state of facts not unusually attending persons of the testator’s age, especially after his health became somewhat impaired, and that on several days he would be apparently in quite a vigorous condition of mind and memory, and that other days he would be more affected by the ailments which afflicted him. A full consideration of all the evidence disclosed in the appeal book, upon being perused, leaves an impression that the bequest to the Dundee Baptist Church was not produced by improper influences, and that the finding of the surrogate to the effect' that the bequest to the church was the result of fraudulent practices, amounting to undue influence, is of doubtful propriety. In re Folts’ Will, 71 Hun, 492, 24 N. Y. Supp. 1052, and cases cited in the opinion.
The evidence fails to establish any impropriety on the occasion of the testator’s giving his check for $300 to pay off a note for that amount held by his daughter against the church, the day preceding the execution of the codicil in question. The testimony of Mr. Wilkin, who prepared the codicil (In re Chase’s Will, 41 Hun, 203) and that of the two subscribing witnesses, together with some other circumstances that are disclosed in connection with the preparation and execution of the codicil, which seem to have been known to the wife and to the daughter, tend to indicate that the testator was in possession of his faculties, and was acting independently, and without any restraint or influences which the law denominates “fraudulent.”
We are not satisfied with the finding, made by the surrogate, that the bequest to the Dundee Baptist Church in the codicil of March 19, 1895, was induced by undue influence, and we. must, therefore, direct issues, as settled, to be tried at a trial term in Yates county before a jury. We think that part of the decision and decree of the surrogate which, in effect, declares the codicil, so far as it relates to the bequest to the Dundee Baptist Church, null and void, should be reversed.
So much of the decision, judgment, and order as declares the bequest to the Dundee Baptist Church null and void is reversed, and questions of fact stated (and filed with the clerk), to be tried by a [674]*674jury at a trial term in Yates county, with costs of the appeal to the appellant, payable out of the estate.
ADAMS and GREEN, JJ., concur. FOLLETT and WARD, JJ., dissent.