In re Soule's Will

3 N.Y.S. 259, 1888 N.Y. Misc. LEXIS 581

• Court: New York Surrogate's Court
• Decided: December 19, 1888
• Status: Published

Opinion

Teller, S.

This is an application upon the part of Mrs. Cynthia D. Rood,, the petitioner, with George S. Everts, for a revocation of the probate of the will and codicils, four in number, of Lyman Soule, deceased, which were' admitted to probate in this court by decree dated June 26, 1886. The proceeding for probate was instituted by the filing of a petition therefor on the-part of Charles G. Briggs, Esq., one of the persons named as executor in the third codicil to said will, on the 16th day of December, 1885, and the issuing of citations upon that day. Thereafter one Leroy Soule, an heir at law and next of kin of said decedent, appeared in said proceeding by his attorney and counsel, and filed objections to the said probate. Eighteen other heirs at law and next of kin appeared by the same attorney. The petitioner in this proceeding was among the number so appearing. The issues thus joined were tried in part, evidence was given by all the subscribing witnesses to the will and codicils, the petitioners had rested their case, some evidence had been adduced upon the part of the contestants, when a compromise was agreed upon,, and the opposition to probate withdrawn; the residuary legatees, Howard Soule, Eanny J. Green, Mary S. Paige, and Charles F. Durston, stipulating that the moneys bequeathed to them by the first subdivision of the thirty-first article of the third codicil should not be counted or treated as among the legacies which by the third subdivision of said article are made the basis of the distribution of the residuary estate. To carry this agreement into full effect, the decree, at the request of all the parties, through their attorneys, was made to embody a construction of the will in conformity with the stipulation. The answer interposed by Leroy Soule, and by which issue was raised, attacked the validity of the attempted disposition of the property by the thirty-fifth and thirty-seventh items of the will, the fourth item of the codicil of March 25, 1882, and the thirty-first item of the codicil of March 7, 1884; and questioned the legal effect of the last two paragraphs thereof, which are referred to in the stipulation and decree. The answer also alleges that the will and codicils were not the free or voluntary acts of the testator, but were procured by fraud and undue influence, and that the testator at the times of their execution was not of sound mind,—all of .which was decided contrary to the allegations of the answer, except that the will was construed in accordance with the stipulation.

The petition for revocation of probate alleges that Lyman Soule, at the time of making the writings, purporting to be his last x^ill and testament and codicil, was not of sound mind or memory, or in any respect capable of making a will; that he did not know their contents; that they were not witnessed at his request; that they were procured by fraud and undue influence; and that, after the execution, the papers were altered, and other papers substituted in their place. Upon the last claim no direct proof was given. The third codicil to the will, bearing date March 7,1884, is shown to be in the handwriting of Charles F. Durston, who is named therein as one of four parties to share equally in the income of the residue of the estate for the period of five years, and at the end of that time to have each one-fourth of $100,000. He is also named as an executor. The dispute over the testamentary capacity of the testator, and the burden of showing that the codicil, so written by an interested party, was the free and untrammeled expression of the testator’s wishes, have been the chief sources of difficulty in the case. The will and two of the codicils are quite long, and at first some of the provisions seem intricate. At the time of the execution of the third codicil the decedent was about 91 years of age. He had never been married, and his nearest relatives were nephews and nieces, and their descendants, who are quite numerous, and all recipients, by the will and codicils, of his bounty. The length of the instruments is due principally to the large number of bequests and the repetition of formal words. By the first clause of the will, payment of debts and funeral expenses is provided for. In the second clause is contained a devise of three farms to a brother (since deceased) and his descendants. The third contains a devise of the use of a farm for life to two nieces. The next thirty clauses of the will •contain general money legacies to relatives and friends, including two lawyers, who had rendered services to the testator, and one of whom drew the will. The thirty-fourth clause contains gifts of $5,000 each to three charitable institutions in the city of Auburn. In the thirty-fifth clause the sum of $2,000 is set apart to provide means of caring for the testator’s family cemetery lots and surroundings, and in the thirty-sixth clause the same amount is appropriated to the purchase of a monument. By the thirty-seventh clause The residue and remainder of the estate is given to the executors in trust, to invest the proceeds and pay the interest to nine relatives, who are named, in such proportions as the executors deem proper, during the period of 10 years, and, at the expiration of that time, to divide the principal among the heirs at law of such persons, in such manner as the executors may deem proper, in view of their conditions, wants, and circumstances; it being provided that, if any such person die within the 10 years, the share going to the heirs of that person may be paid at once. By the next clause the general legacies are made a charge upon the real estate, power of sale is given, and ■the time of payment of legacies is named. In the thirty-ninth clause the time within which sales of real estate are to be made (five years) is fixed, and a' provision is made that the legacies of any parties wiio shall by suit seek to •compel a division of the estate or payment of a legacy, which may make expense or cause loss, shall be null and void. By the fortieth clause of the will, Horace T. Cook, Charles G. Briggs, and Howard Soule are named as ex-, ecu tors; and, lastly, the will directs that, should any of the heirs at law or next of kin contest or dispute the instrument, he shall take nothing from the ■estate. The will covers 18 pages of legal cap paper, but, with the exception •of the names of the legatees and the amounts of their several legacies, its provisions have been practically indicated. The attestation clause is perfect, ■and the instrument appears on its face to have been duly signed and published.

The first codicil, bearing date the 22d day of March, 1881, witnessed by the ■same persons, refers to the will, and particularly the third item thereof, and merely corrects the names of the two devisees named therein, which had been interchanged, applying the Christian name of the one to the other, and vice versa. The second codicil, dated March 25, 1882, witnessed by the same persons, refers to the will. In the first clause is a devise for life of a farm to the •testator’s brother, (since deceased,) and, upon his decease, to his grandchil■dren. In the second clause is a legacy of $3,000 to Charles 3?. Durston. In the third are legacies of $1,000 each to five clergymen. In the fourth the •thirty-seventh item of the will is quoted and revoked. The same provisions are then made for the payment of the income of the residuary estate as in the ■will, except that the names of four of the beneficiaries are omitted. One new name is added. Of the principal, not to exceed one-ninth is given to the heirs of each of these parties, in the same manner that the residuum was • directed to be distributed by the will to the persons named in item 37, and the balance to be distributed among the three charitable institutions named in the ■thirty-fourth clause of the will. The third codicil, dated March 7, 1884, refers to the will and the former codicils. In the first clause the farm, of which The use was given to two nieces in the third item of the will, is devised absolutely to them and one other niece, and each of the three is given $1,500. In The second clause the legacies of three nieces are increased to $3,000 each. In the third.and fourth clauses 16 legacies are increased $500 each. In the fifth clause a legacy of $5,000 is reduced to $3,000. By the sixth clause the sum set apart in the will, of which his housekeeper is to have the incomes-is increased from $1,500 to $2,000, and by the ninth clause she is given the-use of the testator’s residence for four years. By the seventh, eighth, eleventh to eighteenth clauses, inclusive, additional pecuniary legacies are given. By the tenth the provision of the will for a monument, which had subsequently been erected, was canceled. By each of the nineteenth, twentieth, and-twenty-first items, the use of $2,000 is given to a nephew for life, and in one-ease the principal, after the nephew’s death, is given to his children who may survive him. By the twenty-second, twenty-fourth, and twenty-fifth clauses,, legacies of $1,000 each are given to nine children and a grandchild of a nephew and nieces of the testator. By the twenty-third clause, the legacy in the twentieth item of the will to Howard Soule is increased to $5,000. The twenty-sixth, twenty-seventh, and twenty-eighth clauses of this codicil specify the-times at which certain legacies of the will and third codicil are to be paid.. The twenty-ninth clause is an amendment of the thirty-fifth item of the will, relating to the cemetery fund, providing that the income be expended under the direction of commissioners of the “Soule Cemetery,” to be appointed by the common council of the city of Auburn. There are two clauses numbered “Thirty.” The first gives $1,000 a year for six years to each of the executors in addition to his commissions. The next clause directs that the preceding legacies shall have a preference over the payments to be made under the following items. The thirty-first clause has three subdivisions. After reciting the change made in the residuary clause of the will by the fourth item of the-codicil of March 25, 1882, it is as follows: “First. That Howard Soule, of" Syracuse, FT. Y., Fanny J. Green, of Port Byron, FT. Y., Mary J. Paige,. of Sennett, Cayuga Co., FT. Y., and Charles F. Durston, of Auburn, FT. Y„. shall be the four (4) persons who, and their heirs that may respectively survive them, that shall have, the income of my rest and residuary estate,, willed to my executors in and by said item fourth (and which may remairu after satisfying the several legacies mentioned in my will, and in the codicil of date March 25, 1882, and this codicil, as they remain in force at my decease) of said codicil, for the period of five (5) years, and my executors will pay over the same to them, share and share alike, annually, and, in the-event of the death of either of them, either before or after my death, then-to pay over the share (one-fourth) to the heir or heirs of such person so dying;, and at the end of five (5) years to divide among them, or their heirs surviving-them, respectively, the sum of one hundred thousand dollars, ($100,000,) if" there be that sum belonging to said rest and residuary estate; if not that sum to so divide, then what sum there may be under said amount, share and share-alike, or one-fourth of said $100,000, to each of said four persons, viz., Howard Soule, Fanny J. Green, Mary Paige, and Charles F. Durston, or to the-heir or heirs of either of said persons who may die before said division may be made.” The second subdivision provides for the payment to each of the-three charitable institutions before named of $15,000 out of the residue of the-estate, making altogether $20,000 to each. By the third subdivision the balance of the property, if any, is divided among the legatees named in certain, specified clauses of this codicil, and the original will and second codicil, upon the basis of the sums given as legacies. The thirty-second clause contains a. direction as to forfeiture by any legatees contesting the will. By the thirty-third clause, Charles G. Briggs, Charles F. Durston, and Howard Soule are-named as executors, Durston being substituted for Horace T. Cook; and by the-last clause of the codicil it is provided as follows: “If by inadvertence I have-omitted the name of any person or persons who shall be heirs at law at my decease, I direct my executors to pay such person or persons a legacy of one-thousand dollars to each of them, if they see fit and proper. ” A fourth codicil is dated May 21, 1885, by which the above-named executors are reappointed, their powers as to transferring and selling securities, etc., are specified^ and authority given to the surrogate, in case of death or vacancy in the number, to appoint to such vacancy—First, George S: Everts; second, Silas Wright; and, third, George H. Green.

This analysis of the will and codicils is thought to be proper, in view of the contention upon one side of the case that a person, in the feeble condition of the testator, could not have understood the provisions of the will, owing to their intricacy, and, on the other side, that the will and codicils are simple in their meaning and purport, and, if at all involved, only so in their legal phraseology. Counsel for the proponent says the scheme of the testator was simple, and what he intended is perfectly evident. The difficulty is not as to what was in the testator’s mind, but as to whether the language used expresses his intent. The counsel for the contestants argues that the provisions of the residuary clause are of doubtful legality, as being in contravention of certain statutes, and claims this is evidence that they were not understood by the testator. If the decedent is found to have been of testamentary capacity at the time of the execution of the will and codicils, being a man of unusually advanced age, and consequently of weakened powers, in the circumstances of the case, it is necessary to decide that he fully understood the nature and consequences of his testamentary act; and this must be determined from evidence aliunde the formal execution of the will. The fact that a will is illegal in some of its provisions can be no evidence to show that the attempted disposition was not understood, unless the testator was a lawyer, and well acquainted with the law. It would appear most useful to endeavor to view a will from the testator’s stand-point, rather than that, of the scrivener who drew it; and, if it appears that the will as dictated by the testator was comprehended by him, and that his ideas had been accurately expressed,, in the will, although in language more obscure than is ordinarily used, and not readily understood by a stranger, it must be held that the will in this respect complies with the law, although for some other reason it may not do so.

The first inquiry, however, in this case, is, “did the testator have legal capacity to execute a will at the times of signing the will and codicil?” Much evidence has been given upon this subject, but it was not contended by the argument of the counsel for the contestants that Lyman Soule did not have mental ability to make a will of any kind, and under any circumstances. On the contrary, it was conceded that he might have made a lawful will at the time of the transactions in question. The evidence to support the theory of mental unsoundness was the age of the testator, impaired sight, attacks of vertigo, attended by brief unconsciousness, forgetfulness, losing his way, and having to be assisted home, and sometimes to his room, physical exhaustion, inability to read papers, making radical changes in the disposition of his property in the last years of his life, frequently declaring that he could not do business, and surrendering up most of it into the hands of others. One witness testified to one occasion when Mr. Soule had an attack in a store in 1880, when he fell out of his chair, and remained unconscious until after a doctor had been brought in, and had administered some remedy,—more than 20 minutes. It is not proven what the character of the illness was, but it appears by the evidence of the same witness that “Uncle Lyman,” as he was called, came to the store the next day, and asked if he had done any damage, and requested that the matter be kept quiet. One witness testified to meeting Mr. Soule near the city limits, when he appeared to be lost, in 1883 or 1884. The snow was deep, and witness took him in his sleigh to ride home. He asked witness what certain places were, with which he had been familiar. He was in the sleigh six or seven minutes, and, before lie reached his home, he expressed surprise that he had gotten lost. Several other witnesses tell of meeting him when he inquired for places which had been well known to him. In nearly every case it is shown that Mr. Soule appreciated the information given, and usually acted in accordance with it. Considerable evidence is also given to show that he failed to recognize people, and forgot that he had met them a short time before. It does not always, clearly appear why he did not recognize them, but, in most instances, it does appear that he acted rationally upon being told who the persons were. Even upon the evidence presented by the contestants, the condition of mental alienation, if such it be, was not continuous, and fails to establish the theory of senile dementia.

Upon the part of the proponents it is shown that, up to the time of the execution of the third codicil, and subsequently, the testator collected money upon mortgages, and for rent of houses owned by him, gave receipts therefor, and appeared to the persons with whom he transacted the business to be able to understand what he was doing. In October, 1883, he received money upon a mortgage, signed a receipt for it, and indorsed the payment upon the mortgage. The party who made the payment had had many similar business transactions with him, and did not notice anything unusual. In January, 1884, an attorney at law who was acquainted with Mr. Soule came to see about selling him a mortgage, found him at the bank, where he had his desk and papers, told him about the mortgage, and what he wanted. The testator agreed to meet him at his law office at 2 o’clock in the afternoon. He met his engagement promptly, examined the mortgage, objected to it because it ran too long, and finally refused to take it because of the time and of its being payable in small installments. The witness observed nothing different from what he had seen of the testator for a good many years. A few weeks before, he had a conversation with him in regard to a lawsuit which had been tried in 1855. The testator told over the details, of which the witness was cognizant, accurately and rationally, and inquired interestedly about people they had both known in former years. ' The testator was a member of a fire company. 1 He occasionally met the members at their house as late as 1882 or 1883. He lent the company $200 in 1881 or 1882, and took a note. Payments were made from time to time.. At one time he made them a present of $50. In September, 1884, the note was placed in the bank for collection. He met one -of the men who had made payments, and told him the note had run long .enough; whereupon the note was paid.

In 1884 one of his tenants, who kept a restaurant, told him he wanted more room. Mr. Soule said the tenant next door was going out, and he would see what he could do for him, but advised him not to be too hasty about it. In November, 1883, he made a contract with one of his tenants for the sale of a store, title to pass on the 1st of May, 1884. The deed was given at the time named, a mortgage given for part of the purchase price, and a check to Mr. Soule for the balance. The negotiations were made in person. Pending the negotiations, he asked a friend to go in and look at the store. When told that he did not want to buy, he replied: “I would like to have you go in and look at it anyway. ” This was done. Two or three times afterwards, and in 1884 or 1885, he told his friend he had sold the store, intimating that the looking at it had stirred the matter up; the purchaser being the occupant at the time. In the fall of 1885, a short time before his last sickness, he drove out to his tenant-houses. He mentioned particular houses he wanted to see; expressed pleasure at riding; asked the man who drove to take him to the barber shop to be shaved. He became ill, and concluded to go home. The driver says he saw nothing out of the way. In 1884 he met the husband of one of his nieces, who lives in Sennett, where he had formely resided, and asked him if a certain farm would bear a $13,000 loan. At one time he said to this witness: “John, when you go home, tell your young minister I have been making a new codicil to my will, and have left him one thousand dollars. ” This young minister was one of the clergymen named in the second codicil as legatee to the amount of $1,000. Subsequently he told this witness he was going to make a new codicil, and put Mate’s name in it. After that, in 1884, the witness met him, when he said; “John, when you go home, you tell Mate I have been making a new codicil to my will, and I have put her name in it..” (Mate was the witness’ wife, and one of the principal residuary legatees.) He then showed the witness a list of his property, mortgages, etc., which he had to collect. A large number of mortgages and checks, bearing the indorsements of the testator, were read in evidence; also checks signed by him. Twenty-eight checks were presented, which were filled out and signed in the handwriting of the testator, bearing date of 1884, which had been presented and paid at the bank in the usual course of business. There were also produced 52 checks issued in 1883, all bearing the autograph signature of the testator, but filled out by others, and 15 checks made the same year, which were both filled out and signed in his own handwriting, and which had been regularly paid. One witness produced by the proponents testifies to being with Mr. Soule upon two occasions, the last about1 four months before his death, when he was ill upon the street, and Mr. Soule told him that he had one of his dizzy • spells; said lie had had them some little time. About six months before, the witness walked with him, when he had one of the dizzy attacks, which passed ■ off after a time, when he said he was all right, and the witness left him. The witness says the testator always recognized him, and that he met him fre- • quently up to the last month of his life. It is proved that the testator’s habit, until a few weeks before his* death, was, about 8 o’clock in the morning, to go to the National Exchange Bank, where he had his papers, at first in tin boxes kept in the vault, and from the spring of 1884in asafeprocured for that purpose. The bank was over a quarter of a mile from his residence. He would often be the first person to arrive in the morning. He was a director • of the bank, and had a key to the outer door. He would ask the teller of the bank for his tin boxes, and, going into the back room, would take out his papers, and examine them. Payments were made to him there, and receipts either drawn by him or by the cashier of the bank, and signed by him, were • delivered; and the papers, being returned to the tin boxes, were again placed in the vault, or were put in the safe. The cashier and teller of the bank, who saw him and conversed with him nearly every day, saw nothing irra- ■ tional. The county clerk testifies that for many years, and down 'nearly to the time of his death, Mr. Soule brought papers, mortgages, and assignments to his office, to be recorded, and frequently asked him to examine the records ■ to ascertain if there were any prior liens upon the incumbered property, and would ask for and take away papers which had been recorded. The office was over half á mile from his residence, and he usually walked to it. On one oc•casion, a short time before his death, the witness saw him getting on the . street car, and expressed surprise at his riding, as it was so unusual an event, when Mr. Soule replied he did not think he would get there himself. One witness who rented a store building of the testator, testifies that he paid him • the rent monthly down to near the time of his death, and took receipts, all of which were in Mr. Soule’s handwriting, down to the 1st of June, 1885. Be■eeipts given in June and July, 1885, were drawn by the witness, and signed by Mr. Soule at the witness’ place of business.

The testator died November 28, 1885, of acute bronchitis. The will and first two codicils were witnessed by two gentlemen who were officers of, and in ■ daily attendance at, the bank where the testator had his papers, and of which he was a director. They knew him intimately. One of the witnesses, Mr. Newton, Lad been acquainted with him 14 years; liad seen and conversed with him almost daily from the time he brought his papers to the bank, in 1878, to .about 3 months before his death. He had known of bis extensive business transactions, and taken part in many of them, both as an officer of the bank .and as an assistant of the testator. He, as well as the other witness, testifies unqualifiedly to the opinion that the testator was of sound mind and memory, and in all respects competent to make a will at the time of the execution of the will and first two codicils in question. The third codicil was attested by men who were acquainted with Mr. Soule. One of them was a-physician, who had attended him professionally upon two occasions, and wholes tifies to a conversation with him at the time of the execution of the third codicil. Both witnesses say unequivocally that in their opinion the testator ■ was at that time of sound and deposing mind and memory. The witnesses to-the fourth codicil, dated May 21,1885, were both well acquainted with the-testator. One was a neighbor. Both of them say, without hesitation, that-he appeared in his right mind, and seemed to exercise his own free will. In addition to the evidence of the acts and conversations of the testator, extending' over a period of several years immediately prior to his death, and the opinions of some of the witnesses who were called to detail them as to the impressions-made at the time by such acts and speech, and the opinions of the subscribing witnesses to the will and codicil, expert testimony has been given. Four physicians on the part of the contestant, and three, including the state commissioner in lunacy and the superintendent of the state asylum for insane-criminals, on the part of the proponents, were produced as witnesses. They testified to their opinion in response to hypothetical questions propounded by* the respective counsel. To a question presenting very fairly the principal, facts established by the whole evidence, five of these witnesses agreed in giving the opinion that a person thus described would be one of sound mind. The other two witnesses answered adversely, in reply to a question embracing only the facts testified to by a portion of the contestant’s witnesses, and. without the benefit of the entire history given in the case.

Upon the whole evidence, the conclusion is imperative that the testator at the time of the execution of the will and codicil possessed legal testamentary capacity; that he was able to understand the condition of his property; his-obligations to those who were related to him by ties of blood, or who had legal 'or moral claims upon him; and the character and effect of the provisions of his will and codicils. While it appears that his perceptive powers and memory were somewhat impaired, as would be naturally supposed in a person of his advanced years, his regulative faculties and business acumen are shown to have been remarkably well preserved. Cases may be cited in which legal; capacity to make a will has been upheld in which there is apparently much less-ground. The case of Horn v. Pullman, (decided by the court of appeals ini 1873,) 72 N. Y. 269, involved the question of the testamentary capacity of a man, 83 years of age, who was suffering from infirmities incident to advanced age, and had been previously afflicted with sickness, which left him enfeebled in body. His sight and memory were considerably impaired. He took no active part in business for several years before his death, which occurred within three months after the execution of the will. He had grown more reserved and less cheerful than formerly; would repeat questions sometimes t.wo or three times during a conversation. He did not recognize readily some persons with whom he was acquainted, and had to be told who they were. The evidence altogether showed that the testator’s mental and bodily powers were impaired, but failed to show that he did not understand his relations to his family, the condition of his property, and the efféct of his will. There was evidence in the case of circumstances tending to show that he-acted intelligently in the transaction of some trivial matters of business. The physician who attended him during the last years of his life, and who was one-of the subscribing witnesses to his will, testified that his memory of recent, events appeared to be impaired, and that he was bodily and mentally infirm, but, in the witness’ opinion, these infirmities did not affect the testator’s competency to make a will. The court adopts this view of the case, and lays, down the rule that a will should be sustained if the testator is shown to have-had sufficient intelligence to comprehend the condition of his property, his relation to those who are or may be the objects of his bounty, and the scope and! meaning of the provisions of his will, provided it be his free act. Many cases; might be cited to show that mental impairment alone is not deemed sufficient-to defeat a will, if the person who made it appears to have had sufficient understanding to appreciate its effect. The courts have also held that a person' who has sufficient capacity to make the simplest will, who is compos mentis, can make any will, even the most complicated. Delafield v. Parish, 25 N. Y. 97. Within all the authorities, it must be held that Lyman Soule had legal testamentary capacity at the time of the execution of the will, and at the-times of executing the codicils. His numerous business transactions and conversations all conclusively prove that he was compos mentis.

A question of more difficulty to decide, upon all the facts of the case, is-whether the instruments admitted to probate as the last will and testament of the testator, and as codicils thereto, were fully understood by him, and were his own free acts, or whether they were obtained by undue influence. Had the parties who wrote the instruments in question been entirely disinterested, and the testator been in the full possession of his normal faculties and senses;had his sight been good, his memory unimpaired, and his actions independent,—the presumption would follow that he fully understood the provisions of the instruments, and desired to have them carried into effect. But the will and first two codicils were written by a lawyer, who is made a legatee to-the amount of $2,000, and the third codicil was drawn by, and is in the handwriting of, another lawyer, who is given thereby one-foiirth of the'income of a large residuary estate for five years, and at the end of that time the sum of $25,000, and who is named therein as an executor, at a salary of $1,000 a-year for six years, in addition to the commissions allowed by law. Upon the ■ issue as to undue influence, the question of the burden of proof is, in the circumstances, not free from difficulty, and the decisions of the courts in other cases have been examined to ascertain the proper rule to be adopted in the • present controversy. The case of Marx v. McGlynn, 88 N. Y. 357, was one in which the testator had made a will in favor of his religious adviser, and the-question of presumption as to undue influence was raised. The court held that it is not sufficient to show that a will is the result of affection or gratitude, or the persuasion of a friend or relative, which he may legitimately use, but the influence must be such as to overpower the will, producing a disposition of the ■ property which the testator would not have made if left free to act. Where, however, a weak-minded person makes a will in favor of his priest or confidential adviser, to the exclusion of the natural objects of his bounty, the law presumes undue influence, and, in order to sustain the will, there should besóme proof besides the making of it. This presumption, however, is one of fact; and, where the evidence tends to show that the will was the voluntary, deliberate act of a person of ordinary intelligence, prompted by affection, • without improper persuasion, and the will is not unjust, a decree admit-ting it to probate will be upheld. Two kinds of undue influence are re-f erred to as being recognized by the law,—one of coercion or threats of injury by which a person is compelled to act contrary to his desire, which cannot-often occur under the present system of executing wills; the other and more common one, in which the mind of a person is wrought upon through constant-persuasion, and mental or moral pressure, or appeals to hope or fears, con-tinned until the victim, for the sake of peace, is compelled to surrender his-own wishes, and do an act which he would not do or desire to do if left freely' to act his own pleasure. The case of Will of Martin, 98 U. Y. 193, was one-in which probate was contested on the ground of undue influence. The tes^ tatrix left three sons, one of whom was named as executor of the will. He had communicated to the-scrivener the provisions to be inserted in the will, and was himself a beneficiary. It was alleged against the will that it was ob« tained by undue influence. The court held that the burden of establishing the defense was upon the parties making the attempt, and, as the testatrix was found to have had testamentary capacity, and a present knowledge of the -contents of the will, it was held that it could not be avoided, except hy proof -of influence amounting to force or coercion. The case which has been most urged upon the attention of the court as an authority, and which, in many of the facts involved, is most like the case at bar of the decisions of our highest -court, is that of In re Will of Smith, 95 N. Y. 516. Eliza M. Smith, at the time of making her will, was over 75 years of age. She had no near relatives. The lawyer who drew her will was the chief beneficiary. The testatrix was infirm, mentally and physically. She had made three previous wills, two of them made in the same year as the last. In each of these the contestant was named as legatee. In the first two she was residuary legatee, but in the ■third the proponent was named as residuary legatee. In the fourth will, the one in question, the contestant was not mentioned, and the draughtsman was .given the bulk of the'property. The will was drawn and executed five days before the death of the testatrix. The court says the fact that the beneficiary was the attorney of the decedent does not alone create a presumption that a ■testamentary gift was procured by fraud or undue influence; but^ when a person of advanced years, and mentally and physicially infirm, has made his attorney the principal beneficiary, and it appears that this was contrary to previously expressed testamentary intention, that the attorney was the draughtsman of the will, and took an active part in procuring its execution, and that -the testator acted without independent advice, the burden is imposed upon the ■ attorney of satisfying the court that the will was the free, untrammeled, intelligent expression of the intention of the testator.

The case at bar differs from all the cases cited to such an extent that the ■burden of proof upon the claim of undue influence is left almost entirely to the judgment of the court as a new question. It may be said that propriety at least would dictate that a person deriving a benefit from the will of another ■ should not conduct the affair. Qui se soripsit hceredem, or whoever draws a will in his own favor, does, a thing which ought to excite the suspicion of the •court, and call upon it to jealously examine the evidence, and be judicially ■ satisfied that the paper propounded expresses the true will of the deceased, before admitting it to probate. The fact that the testator had full testamentary • capacity, and knew the contents of the will, is sufficient to remove such suspicions, and to place the burden upon the contestants of proving undue influence. It was said by the surrogate in Wilson v. Moran, 3 Bradf. Sur. 180: “A will by a client in favor of an attorney is not absolutely invalid. * * * In such a case there is no testamentary incapacity, but still the circumstances - call for the largest degree of circumspection and vigilance, to see that the act was in consonance with the views and wishes of the testator, and was not the .result of influence exercised through the medium of the existing confidential relation. * * * It is, in substance, a rule of evidence to the effect that proof of formal execution alone is not enough to force a conclusion, and that, • even after the factum is formally established, the burden remains upon the proponent to show, by additional testimony, spontaneousness and volition.” In view of the propositions contained in the case of Will of Smith, supra, the •doctrine laid down in Wilson v. Moran is only to be applied where the testator is shown to have been dependent upon his attorney for information •concerning the contents of the will, or where the testator was an infirm person, and the provisions of the will are such as to create suspicion, or the cir•cumstances under which it was executed are such as to lead to the inference ■of undue influence, as in the case of Rundell v. Downing, 5 N. Y. St. Rep. 253. It does not appear what may have been Lyman Soule’s purpose as to the disposition of his property prior to the will executed June 24, 1880, or that he was then mentally infirm. The legacy to the attorney who drew the will was small compared with the size of the estate. It would not seem to be unreasonable to assume that the legacy was given in consideration of services rendered. There is not enough evidence to raise the presumption that this gift was procured by fraud or undue influence, and if there was, the will being republished at the time of the execution of the third and fourth codicils, when other advisers were employed, no other evidence need now be considered as regards the validity of the will and the first and second codicils.

Before proceeding to examine the evidence relating to the third codicil, as-the proponents have referred to t-lie fact that this petitioner upon probate consented to the decree which she seeks to overthrow, it may be proper to refer to some authorities upon the question of the burden of proof in a proceeding like the present for a revocation of probate. In an early case in the surrogate’s court of Hew York county, (Collier v. Idley's Ex'rs, 1 Bradf. Sur. 94,) the history of the law relating to proceedings for the revocation of probate-was carefully examined, the law was expounded substantially as in the Case of Gouraud'in the court of appeals, infra, and the question of the onus of sustaining the allegations against the will was fully considered. It was. there-contended upon the part of the proponents that the probate of the will was prima facie evidence of its validity, and that the burden of overthrowing it lay with the contestant. The surrogate held that the proponents were bound to prove the will by original proof, independently of the first trial, but said, that “ where allegations are filed with the view of raising some issue, narrower than the broad and general one of the invalidity of the will, and the incompetency of the proof, if such a course be regular, the rule of evidence, as I have laid it down, may perhaps be varied.” The case of Post v. Mason, 91 N. Y. 539, was an action brought in the supreme court to have the probate-of a will vacated, and the defendants adjudged to hold property as trustees, which had been given them individually by the will. One of the defendants-was an attorney at law, who, at the death of the testator, and for one or more years previously, had been his friend and counselor. He wrote the will, and was named as one of the residuary legatees. The testator’s property amounted, to about $200,000, and the attorney’s share was about $17,500. The court of appeals in its opinion in that case says: “The relation of attorney and draughtsman, no doubt, gave, in the case before us, the opportunity for influence, and self-interest might supply a motive to unduly exert it; but its exercise cannot be presumed in aid of those who seek to overthrow a will, already established by the judgment of a competent tribunal, rendered in proceedings to which the plaintiffs were themselves parties, nor, in the absence of evidence, warrant a presumption that the intention of the testator was improperly, much less fraudulently, controlled.”

In the present ease the testator was a person of advanced years—about 90— when the third codicil was executed, he was physically infirm, he was slow of movement, his sight was poor, and he depended upon others to read to him. This instrument was, in respect to the most important provisions, contrary toll is previous will and codicils. The attorney and draughtsman was one of the chief beneficiaries. These facts require that the proponent should satisfy the-court, by a clear preponderance of evidence, that the testator fully understood the nature and consequences of the testamentary act. There is no direct, proof of any attempt on the part of the attorney, or those who were associated with him, to induce or influence the testator to make this codicil. There had been one quite radical change in the testamentary disposition of the residuum, of his property, made by one of the former codicils, before the parties who assisted in the making of the third codicil were brought into service. Four of the nine original residuary legatees had been left out, and one new name added. It is proven that Mr. Soule had repeatedly, after making the will,, expressed dissatisfaction with his relatives. He did not live with any of them, or have much intimacy with them. He was heard to say of Howard Soule, who continued throughout to be one of the residuary legatees, that he liked him because he stayed away from him, and did not bother him; that he-did not come until he sent for him. There is evidence of expressions of affection for Mr. Durston, the attorney who drew the third codicil, made by the .testator in the years 1884 and 1885. One witness says he had a conversation with Mr. Soule, in Mr. Durston’s office, in August, 1884. When asked if it was not hard for him to come up stairs into the office, Mr. Soule had said: “Yes, it is, some; still, at the same.time, I make it my business, if I can, to •see Mr. Durston once a day, for I like the man very much.” Another witness was in the office in the spring of 1885. Mr. Durston went out to the bank. Mr. Soule, sitting there, said: “Charley is a good boy; an awful good boy. I wish he was my son.” Another witness says Mr. Soule,in speaking • of Mr. Durston, in 1885, told him he was his best friend; that lie thought a great deal of him, and considered him a very honest man; and that he had said, in substance, the same thing to him at different times before. Another witness tells of hearing Mr. Soule speak in high terms of Mr. Durston in 1884, and of calling him his boy.

In the second codicil, dated May 25, 1882, in the making of which it does not appear that he took any part, Mr. Durston is made a legatee to the amount -of $300. It appears that the testator was very frequently in Mr. Durston’s law-office, in the years 1884 and 1885, and that, to enter the office, he had to -climb a very long flight of stairs, with considerable difficulty. Durston attended to the decedent’s law business, supervised his loans, made collections for him, and thus much of his time was occupied during the last three or four years of the testator’s life. It does not appear whether he received any other -compensation than the legacies named in the will. It is shown by the will and codicil that Mr. Soule made provision in this way to compensate other lawyers, and, in one instance, it is upon condition that no other claim be made. The amount given to Durston is stated to be about 6 per cent, of the •■testator’s property. Prior to the execution of this codicil the testator told the ■husband of Mrs. Paige, one of the four principal legatees, that he was going to put his wife’s name in it, and afterwards told him he had done so. This '•legatee had been named in the original will as the recipient of $2,000. With the exception of the change in the residuary clause of the will above mentioned, the scheme.of the third codicil, both as to the persons benefited and the proportionate amounts bequeathed, is practically the same as before. The amounts of most of the general legacies are increased, and all the relatives ■are remembered. From the evidence of the house-keeper, called by the'contestant to show the testator’s infirmity, it appears that, during the time of the preparing the third codicil, he was obtaining the names of the children of his nephews and nieces. There is evidence that the testator knew the consents of the will, from the fact that the first codicil was expressly declared to be made for the purpose of correcting a mistake in the will. The naming of so many relatives of remote degrees of affinity was presumably the act of the tesTator, or done at his dictation, as, in the absence of any member of the family, the lawyer who drew the instrument would hardly have been expected to have known them. The claim is fairly made that the execution of the fourth codicil, -the testator being shown to have been compos mentis, proves presumptively that he knew the contents, of the third codicil. Changes made in the provisions •of the will, increasing legacies of many parties who .were not present or represented, and diminishing those of others, seem rather to support the theory That the testator directed the changes than that they were the work of a few conspirators. By the will and first two codicils about $75,000 is given in general legacies, three farms are devised, and the residue of the property is divided .among six relatives and three charitable institutions. By the will, as altered by all the codicils, about $116,000 is given in general legacies, the farms are -disposed of in the same manner, the income of the balance is given to four persons, three of whom are relatives, for five years, $100,000 is then to be -divided between the four, the three charities are bequeathed $20,000 each, and The residue of the property is given to relatives in proportion to their general legacies. Assuming the property to be about $500,000 in amount, as con- • ceded, it will be seen that the latter disposition of the property is more equitable. It is more favorable to all the relatives, except the few who happened 'to be preferred in the earlier instruments. While a disposition is shown to be more careful in providing for all the relatives, no more cogent reason than ■the donor’s whim is given for preferring one to another.

It is in proof that, the day before the third codicil was executed, the testator, his nephew, Howard Soule, Charles G-. Briggs, one of the executors, and -Charles F. Durston, were together in a room in the latter’s office, with the •door shut. The law partner and the cleric of Durston were aware of the fact «that the parties were together, and the clerk was instructed not to allow interruptions. A draft or memorandum of the will had been previously made, which was read over to the testator by Howard Soule, who says this was >his second visit to Auburn, and the first time he had seen the testator upon •this business. After reading the draft, and at the request of the testator, he ..furnished him with names of the children of his (Howard’s) brother, who •were afterwards included in the codicil. He made an appointment to come •again the day following. He came from Syracuse the next day, as agreed, -saw the engrossed codicil in the morning, and read it in part to the testator. In the afternoon he read the whole of it to the testator. This was the same •day upon which it was executed. He now identifies the original instrument •as the one he read before its execution. He was present throughout the signing and witnessing of the codicil. The following day he made and took away -a copy of the paper, and also received a copy of the will and first two codicils: It is urged in support of the good faith of the parties who took part in the transaction that Howard Soule would receive less property under the third -codicil than he would have had if it had not been made. It appears that he had no acquaintance with the attorney who drew the codicil until the week it was executed. He is not proven to have had any motive to urge the change •in testamentary provision. The changes made by the codicil were presumably within the knowledge of Mr. Charles G. Briggs, one of the executors named in the original will as well as the codicils. The clause of the third •codicil which has been criticised is very plainly written. The nanjes of the legatees are mentioned in full, both at the beginning and end of the first subdivisión. The amount of the legacies is both written out and twice stated in figures. It would seem impossible to read the clause, or even glance at this •subdivision of it, without learning who the beneficiaries are. The fact that the codicil was read to the testator by his relative and chosen adviser is fully established. It cannot be held that Lyman Soule was the victim of deception or imposition without involving all the parties who were present at the time the codicil was prepared in an unlawful and contemptible conspiracy. The facts do not create such a presumption. In the absence of positive proof or •circumstantial evidence sustaining such a conclusion, and admitting of no other reasonable hypothesis, the finding must negative the theory of fraud. The conclusion is that, at the time of the execution of the third codicil, the testator was of sound mind and memory, and competent to make a will; that the codicil was his free act; and that it was in all respects properly and legally executed, and that the testator was not under restraint.

It is claimed on the part of the respondents in this proceeding that the petitioner is estopped from maintaining it by the fact that she has derived a ben•efit under it, and accepted money paid in pursuance of the decree admitting •the will to probate. Certain concessions were, at the request of the parties, .granted upon the probate, and incorporated in the decree, as stated above. It is not demonstrated, nor is it clear to the court, that the petitioner derived •any practical benefit from the adjudication in that respect. It is proven that, after the will was admitted to probate, the petitioner, Mrs. Bood, as assignee, received from the executors a legacy of $500, given by the third codicil to George A. Rood, her son, less the rebate of interest. It is now urged that by this act she is estopped from controverting the provisions of the decree. Upon the trial of this proceeding, after the evidence was closed, the petitioner, by her counsel, made a tender in court of the sum of $496.85, stating that he desired to tender the amount advanced to Mrs. Rood for George Rood’s claim, and interest to date, and to deposit that amount in court for the benefit of the estate. Ho objection was made to the form of the tender. Two questions-are thus presented: First. Was the petitioner, Mrs. Rood, estopped from, contesting the validity of the will by accepting the money? Second. If she-was so estopped, does the tender or offer to return the money, after the proceeding was commenced and continued nearly to a completion, restore her to-the position she occupied before the money was received ? It will be seen by the following authorities that, after some difficulty, the courts have decided: that a decree upon probate of a will does not preclude a party who opposed it from litigating over again the same questions in a proceeding like the present. It was decided by the general term of the supreme court in the First judicial department, in 1883, in Re Will of Gouraud, 28 Hun, 560, that it. was not tlie object of the statute, relating to a revocation of probate of a will,, to allow next of kin who had filed objections to the original probate, and contested ij;, to file the same objections, and enter upon a new contest on the issues already tried and determined. This decision was overruled, however,, by tlie court of appeals, (95 N. Y. 256;) and that court held that, upon a. proceeding for revocation of probate, the whole case was left open, and that the contestant had the right to have the same questions then litigated, tried, and determined, the same as if no adjudication had been had thereon. The-court says a party desiring to contest the probate in that way has the right to-try over again, upon the same or upon additional evidence, the very questions-which were litigated when the will was first proposed for probate. If the- ' petitioner has been precluded from obtaining the relief asked for in her petition, it must be by her acts in relation to the decree, and the parties interested therein, and such as to constitute an estoppel in pais. The acts or admissions relied on must have been intended to influence the party setting-them up.; they must have had that effect; and the denial of the admissions,, and the grounds upon which the. acts were based, must operate to the injury of the other party. A party cannot enjoy the rights awarded to him by a. judgment or decree, and repudiate its force as an adjudication. The case of Mills v. Hoffman, 92 N. Y. 181, which originated in this court, is in many respects similar to the one at bar. An action had been brought by a legatee against, an adm inistrator with the will annexed and others, for the purpose of determining the rights of the parties in the estate, and for an accounting. A judgment had been rendered in the action, determining the questions involved, and adjudging that the administrator, upon compliance with its terms, be discharged, from all demands. The administrator performed the requirements of the-judgment, and paid over, among others, the share of the defendant, who was then an infant. The payment was made to her general guardian. After the-defendant became of age, with full knowledge of the terms of the judgment, she received from her guardian the moneys so paid to him. She also instituted proceedings to vacate the judgment, upon the ground that the appointment of a guardian ad litem for her in the action was irregular. An order was granted vacating the judgment so far as she was concerned. Four yearsafterwards she commenced proceedings in surrogate’s court to compel the administrator to account. It was held, upon appeal, by the court of appeals, that tlie proceedings were not maintainable; that, although the judgment in the action had been deprived of any force as an adjudication, she, by the acceptance of the money paid, estopped herself from controverting either the-judgment or the settlement made thereunder.

In the case at bar it appears that the petitioner did receive the money from the executors of the will. A party who takes personal property under a will to a certain extent derives title from the probate. The petitioner would not have had a right to demand payment of the bequest, except for the decree admitting the will to probate. By the statute authorizing the proceedings for revocation, the effect of the degree, as an adjudication, was suspended, except for the act of the petitioner in accepting the fruits of the decree, and of the will as thereby established. At the time this proceeding was instituted she had in her possession the money which she had received in the nature of a bequest, and to which she, or her assignor, would not have been entitled if the will had been denied probate. I think the petitioner was not at liberty to repudiate the terms of the decree which she has ratified in accepting the bequest, and that she is estopped from claiming a revocation of probate, unless by her subsequent act she has made full restitution. Did the tender of the money in court have the effect to restore the petitioner to the rights she possessed to contest the will by a proceeding like the present? A tender made in court, for the purpose of avoiding an estoppel, is an anomaly. The theory of a tender is that the party who is injured by the act of another receives sufficient amends in accepting a tender, and ought not to be allowed to further maintain his action or hold his security. There are different kinds of tenders,—those which are held to discharge debts, and those where an offer is made of purchase money, upon condition of the delivery of a deed or of the payment of a debt, on condition of the return of a pledge. The Code provides for a tender, after suit has been commenced, in actions for a sum of money only. At common law, payment of money into court was made when tender had been made before suit brought, or when no such tender had been made, if leave was granted by order of the court. Our courts, in some rare instances, have held this rule to be in force. Had the petitioner made a lawful tender of the money received for legacy, for the purpose of making full restitution to the representatives of the decedent’s estate before filing her petition in this proceeding, it might well be said that no injury could thereafter have been alleged on the part of the executors. Having proceeded to obtain a revocation of probate, and caused costs and expenses of a trial, it would be contrary to precedent to allow a tender or deposit of the original amount, with interest, to avoid an estoppel at the close of the trial, if it could have that effect at any time after the proceeding was instituted. In the case of Hunter v. Le Conte, 6 Cow. 728, it was held that, if costs have been incurred by a landlord in distraining goods for rent, a tender, to take away the right of distress, must include the costs. The court says it is highly reasonable that costs should be paid when they have been properly and fairly incurred. It was so held, also, in the case of Eaton v. Wells, 22 Hun, 123, an action for the foreclosure of a mortgage, in which a tender of the amount of the mortgage, without costs, was made after suit was brought, and without an order permitting the tender without costs. It is very doubtful, however, if any tender or deposit of the moneys in court, after the commencement of this proceeding, could be of avail to the petitioner. It has been held in another state that where an execution has been levied on goods and chattels which have been sold, and the proceeds paid over to the creditor, he cannot maintain an action to obtain a new execution upon the ground that the goods were not trie property of the debtor until he has refunded the money thus received, or tendered it back. Batchelder v. Wason, 8 N. H. 121. In a case in this state, in which the plaintiff sought to recover upon one of two notes, the consideration of which was the assignment of a judgment held by him against the defendant’s brother, it was proven that, after its maturity, the note was transferred to the plaintiff, and the judgment assigned to him also. There was no offer made by him to assign the judgment. The court held that, if either party would sue upon this agreement,—the plaintiff for not paying, or the defendant for not transferring,—the one must aver and prove a transfer or tender, and the other a payment or tender, Berringer v. Wengenroth, 6 Hun, 531. Both upon principle and authority, I think the tender or offer of deposit came too late to affect the question of estoppel, and that it was properly urged as a bar to this proceeding.

An offer was also made at the same time to add another party as petitioner, against whom it is not shown the same defense could be made; but as the statutory time of limitation of commencing the proceeding is passed, and some of the parties are infants, and all are not represented, the amendment cannot be held to give the new petitioner the same rights he might have had if joined originally in the petition. It is claimed by the petitioner that the trusts attempted to be created by the will and the thirty-first item of the third codicil are prohibited by the statutes against perpetuities, and are consequently void. The law limits the suspension of the absolute ownership of personal property to two lives in being at the death of the testator, and it is contended that the ownership of the property cannot be absolutely determined until after five years, which may exceed the time allowed by statute. It is also urged that the will violates the statutes forbidding a direction as to the accumulation of interest, except for the benefit'd' minors. The decision of these questions, which are perplexing, is not useful or proper at this time. The inquiry now is whether the will was legally executed, and if it shall stand as proven, or if probate shall be revoked, and the will or codicils bo set aside. The construction of the will, and the decision as to the legality of particular provisions, must be had either upon the j udicial settlement of the accounts of the executors, or a proceeding for that purpose in an action brought in another court.

It being determined that the will and codicils were duly signed and published by a competent person, that they were his free acts, and that he knew and appreciated their provisions and effect, this application is denied. Costs are allowed to the successful parties from the estate.