Tompkins, ■ S.
The deceased died on the 15th day of August, 1895, at the age of eighty-two years.
The proponents have offered for probate instruments purporting to be the last will and testament and codicil, executed respect-' ■ ively on the Tth day of May, 1895, and the 29th day of May, 189'5:
The probate of the alleged codicil is contested by Edward G. Van Houten, a son of the deceased, he alleging that the testator had not mental capacity to make and execute the Codicil,: and that he was unduly influenced to make it, and that the paper was not executed in conformity wifh the statute.
At the close of the' proponent’s case, a motion was made by contestant’s counsel to dismiss the proceeding for: the probate of the codipil on the, ground that the same had not been executed with the formalities required by law,
That question was then fully presented, and .a decision Was' made denying the motion, and while the same • objection is still urged by contestant,' there has been no testimony introduced on his part" of a character to change the opinion which" was then expressed.
The question of the mental capacity of the testator is not now urged by contestant,. except so far as it may have rendered the deceased susceptible td such influence. '
While.- the testator was a very old man, feeble in body, and for a year before his death was confined to his home-, and required the constant attendance of a nurse, it is, nevertheless, conceded by all of the witnesses who testified on the subject that he was o. 'sound mind down to the time of his death, and that about the ■ time the Will and codicil were executed, and subsequent; thereto, he comprehended and understood all matters that were talked about in his presence.
Tie alone gave instructions to the draftsman of the will -and- ■ codicil concerning the disposition of his property in a comprehensive and intelligent manner, and without discussing- this question further, I find that at the time of the execution of both the will • and. codicil lie was of sound mind and - capable of devising and bequeathing, his estate,
The contestant insists that the testator was unduly influenced by persuasion, threats, fears and duress to make the codicil,
The will contained the following provision: “ Third. The. other half of the Barker farm and the homestead on which I reside, that was given, to my. daughter. Fanny in a former will, I give -and devise to my grandson Ralph Van Houten, subject to a mortgage [447]*447of five thousand dollars, which he shall give to my son Edward 0. Van Houten.”
By the codicil, the amount of the mortgage which the will provided that Ralph Van Houten should give to Edward 0. Van Houton was reduced from the sum of $5,000 to $1,000, without interest so long as the said homestead should remain in the possession of Ralph.
The codicil also provided that the personal property at the barn should go to Ralph Van Houten, also the kitchen furniture. By the will the kitchen furniture was to be divided, and Edward O, Van Houten was to have all of the personal property excepting the farm utensils, which were bequeathed to Ralph.
The contention of the contestant is, that after the execution of the will on the 7th day of May, 1895, and until the 29th day of May, 1895, when the alleged codicil was executed, Ralph Van Houten, the sole beneficiary under the codicil, by his manner and conduct toward his grandfather and his treatment of him and threats, so worked and operated upon the old man’s mind, that he was unduly influenced to make the codicil.
In considering this question, a clear understanding of the relations of the parties and of the several members of his family will aid us.
The deceased resided at Orangeville, in Rockland county, and after, his soil William’s death, which occurred nearly thirty years ago, his household consisted of himself, his wife, his: deceased son William’s wife and three children, his daughter Fanny and the contestant, Edward O. Van Houten.
Ralph Van Houten is a son of the testator’s deceased son William, and some time prior to 1890 left the testator’s home and went away. After that the other children of William left the testator’s home, and the son William’s widow died. In. 1890 the testator’s wife died; then Ralph returned to his grandfather’s farm, and remained there until the old man’s death, during all of which time he worked upon the farm, and under an .agreement "with his grandfather had some share or interest in the products and profits of the farm, and during the sickness and physical decline of the deceased had full authority and control of the farm and premises. '
The testator’s daughter Fanny died on the 5th day of July, 1894, and after that the testator and Ralph Van Houten were the only members of the family left "together at the homestead.
[448]*448As the testator grew more feeble and gave less, of his attention to the management of the farm, Ralph assumed the general charge and management of the affairs of the farm, superintending and directing the workmen and. assisting in the care of his grandfather.
A will was prepared for the deceased and executed by him in 1888, by which he devised to his daughter Mary the Barker farm, subject to a mortgage of $1,000, to be given to each of- the three children of his deceased son William, and devising all the. rest, residue and remainder to his wife Margaret and daughter Fanny, and providing further, as follows-: “By reason'of advancements and conveyances of a portion of my real estate by deed of conveyance and gift to my son Edward 0. Van Houten, I have omitted him from any further participation of my estate in and by this testamentary disposition of the same.”
Another will was made in April, 1891, by which he gave to Ins daughter Mary the Cooper farm, and by which he gave to his daughter Fanny and to the children of William the Barker farm. All of the residue he gave to his daughter Fanny. This will contains the same reference to his son Edward 0. Van Houten, the contestant, and was made after his wife’s death.
Then again on ihe 10th day of August, 1894, and after his daughter Fanny’s death, .he made a codicil, by which he bequeathed unto his son Edward 0-. Van Houten .all the “ actual money of which I may die possessed, together with whatever may be due tome and unpaid from my share of the products of the farm, also all money or moneys standing to my credit or in my . name in any of the savings banks or banks of deposit, except so much of the- moneys above described as may be required to pay my just debts and obligations and my funeral expenses.”
■ There seems to have been no change in the family or in the relations they bore to each other from the date of this codicil to the date of the execution of the will and codicil now offered for probate.
The codicil was drawn by one S. B. Huested, who also drew and superintended the execution of the will, and I find that in the execution of the codicil all the requirements of the law were' complied with.
The contestant contends, that from the relations-' existing, between the deceased' and his grandson Ralph Van'Houten, and from the fact that the codicil made in favor of the latter radically [449]*449changes the provisions of the. prior will, undue influence should be presumed, and that the burden of proof is thereby cast upon the proponent.
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Tompkins, ■ S.
The deceased died on the 15th day of August, 1895, at the age of eighty-two years.
The proponents have offered for probate instruments purporting to be the last will and testament and codicil, executed respect-' ■ ively on the Tth day of May, 1895, and the 29th day of May, 189'5:
The probate of the alleged codicil is contested by Edward G. Van Houten, a son of the deceased, he alleging that the testator had not mental capacity to make and execute the Codicil,: and that he was unduly influenced to make it, and that the paper was not executed in conformity wifh the statute.
At the close of the' proponent’s case, a motion was made by contestant’s counsel to dismiss the proceeding for: the probate of the codipil on the, ground that the same had not been executed with the formalities required by law,
That question was then fully presented, and .a decision Was' made denying the motion, and while the same • objection is still urged by contestant,' there has been no testimony introduced on his part" of a character to change the opinion which" was then expressed.
The question of the mental capacity of the testator is not now urged by contestant,. except so far as it may have rendered the deceased susceptible td such influence. '
While.- the testator was a very old man, feeble in body, and for a year before his death was confined to his home-, and required the constant attendance of a nurse, it is, nevertheless, conceded by all of the witnesses who testified on the subject that he was o. 'sound mind down to the time of his death, and that about the ■ time the Will and codicil were executed, and subsequent; thereto, he comprehended and understood all matters that were talked about in his presence.
Tie alone gave instructions to the draftsman of the will -and- ■ codicil concerning the disposition of his property in a comprehensive and intelligent manner, and without discussing- this question further, I find that at the time of the execution of both the will • and. codicil lie was of sound mind and - capable of devising and bequeathing, his estate,
The contestant insists that the testator was unduly influenced by persuasion, threats, fears and duress to make the codicil,
The will contained the following provision: “ Third. The. other half of the Barker farm and the homestead on which I reside, that was given, to my. daughter. Fanny in a former will, I give -and devise to my grandson Ralph Van Houten, subject to a mortgage [447]*447of five thousand dollars, which he shall give to my son Edward 0. Van Houten.”
By the codicil, the amount of the mortgage which the will provided that Ralph Van Houten should give to Edward 0. Van Houton was reduced from the sum of $5,000 to $1,000, without interest so long as the said homestead should remain in the possession of Ralph.
The codicil also provided that the personal property at the barn should go to Ralph Van Houten, also the kitchen furniture. By the will the kitchen furniture was to be divided, and Edward O, Van Houten was to have all of the personal property excepting the farm utensils, which were bequeathed to Ralph.
The contention of the contestant is, that after the execution of the will on the 7th day of May, 1895, and until the 29th day of May, 1895, when the alleged codicil was executed, Ralph Van Houten, the sole beneficiary under the codicil, by his manner and conduct toward his grandfather and his treatment of him and threats, so worked and operated upon the old man’s mind, that he was unduly influenced to make the codicil.
In considering this question, a clear understanding of the relations of the parties and of the several members of his family will aid us.
The deceased resided at Orangeville, in Rockland county, and after, his soil William’s death, which occurred nearly thirty years ago, his household consisted of himself, his wife, his: deceased son William’s wife and three children, his daughter Fanny and the contestant, Edward O. Van Houten.
Ralph Van Houten is a son of the testator’s deceased son William, and some time prior to 1890 left the testator’s home and went away. After that the other children of William left the testator’s home, and the son William’s widow died. In. 1890 the testator’s wife died; then Ralph returned to his grandfather’s farm, and remained there until the old man’s death, during all of which time he worked upon the farm, and under an .agreement "with his grandfather had some share or interest in the products and profits of the farm, and during the sickness and physical decline of the deceased had full authority and control of the farm and premises. '
The testator’s daughter Fanny died on the 5th day of July, 1894, and after that the testator and Ralph Van Houten were the only members of the family left "together at the homestead.
[448]*448As the testator grew more feeble and gave less, of his attention to the management of the farm, Ralph assumed the general charge and management of the affairs of the farm, superintending and directing the workmen and. assisting in the care of his grandfather.
A will was prepared for the deceased and executed by him in 1888, by which he devised to his daughter Mary the Barker farm, subject to a mortgage of $1,000, to be given to each of- the three children of his deceased son William, and devising all the. rest, residue and remainder to his wife Margaret and daughter Fanny, and providing further, as follows-: “By reason'of advancements and conveyances of a portion of my real estate by deed of conveyance and gift to my son Edward 0. Van Houten, I have omitted him from any further participation of my estate in and by this testamentary disposition of the same.”
Another will was made in April, 1891, by which he gave to Ins daughter Mary the Cooper farm, and by which he gave to his daughter Fanny and to the children of William the Barker farm. All of the residue he gave to his daughter Fanny. This will contains the same reference to his son Edward 0. Van Houten, the contestant, and was made after his wife’s death.
Then again on ihe 10th day of August, 1894, and after his daughter Fanny’s death, .he made a codicil, by which he bequeathed unto his son Edward 0-. Van Houten .all the “ actual money of which I may die possessed, together with whatever may be due tome and unpaid from my share of the products of the farm, also all money or moneys standing to my credit or in my . name in any of the savings banks or banks of deposit, except so much of the- moneys above described as may be required to pay my just debts and obligations and my funeral expenses.”
■ There seems to have been no change in the family or in the relations they bore to each other from the date of this codicil to the date of the execution of the will and codicil now offered for probate.
The codicil was drawn by one S. B. Huested, who also drew and superintended the execution of the will, and I find that in the execution of the codicil all the requirements of the law were' complied with.
The contestant contends, that from the relations-' existing, between the deceased' and his grandson Ralph Van'Houten, and from the fact that the codicil made in favor of the latter radically [449]*449changes the provisions of the. prior will, undue influence should be presumed, and that the burden of proof is thereby cast upon the proponent.
It appears from the testimony of- Jared Osborn, who worked .upon the .place and was one of the subscribing witnesses ,and. a witness for the proponent, that shortly after the will was executed he stated to Ralph, in substance, the provisions of the will. in respect to the $5,000 mortgage, which Ralph should give to the contestant, and which his (Ralph’s) share should be charged with. Then, in about three weeks’ time this codicil was made, changing the amount of the mortgage from $5,000 to $1,000, without interest.
There is' no proof that during these three we'eks the relations between the deceased and his son Edward changed or that there was any apparent reason for' so radical a change in the provisions of his will.
Ralph was in sole possession and charge of the farm and' the deceased was dependent upon him for the care of his property. Ralph was in constant communication with his grandfather, and from the testimony of the nurse, Jennie Mar ah, the deceased and Ralph had arranged for the coming again of Mr. Huested to the house for the purpose of making the codicil.
Ralph occupied a position of influence" and authority over his grandfather and the affairs of the place.
I am in doubt as to whether or not these conditions and relations in themselves shift the burden of proof from the contestant to the proponent. From all of the evidence, however, I have come to the conclusion that the codicil was not the free ’ and voluntary act of the testator.
After the death of his wife he changed his will and made ample provision for Ms sick daughter Fanny, by which will he excluded the contestant from a participation of Ms es.tate, giving as a reason therefor that he had already bestowed property upon him. This was due apparently to his desire to make as ample provision for ' his invalid daughter as was possible. After her death he made the will now offered for probate, the validity of wMch is not now questioned..
- By this will he gives $5,000 of his estate to the contestant.
It is not claimed that anything occurred in the relations between him and the contestant after the execution of the will which can be assigned as a reason for' so radical a change as was made by the codicil.
[450]*450The contestant lived at Nyack, several miles distant from the deceased, while Ralph, upon whom the testator was dependent in a very large sense, lived and was constantly with him.
It was testified by Orpha D. Van Houten that on the 8th day of. May, the day after the will was made, the deceased was bright, and said that he felt happy and more contented, and told her that he had made a change and said: “ Tell Eddie that Mr. ‘ Huested has been here and fixed my will and Eddie must pay him.”
There is no claim that Edward 0. Van Houten, the contestant, or any one in his behalf, unduly influenced the- deceased to make the will.
It appears from the testimony of the same' witness, Orpha D. Van Houten, that the next week, when she saw him, she observed a change. He seemed cast down; he said he felt very badly; refused to take his medicine and informed her that Ralph did not like the changes that he had made in the will, and from that time to his death he refused to take any more medicine,, and • said that he was not going to live, and wanted to die.
He frequently, said that Ralph had threatened to commit suicide, as his father William Van Houten had done, and the deceased complained that-he never could live through such a thing again, and -that he did not want to do anything that might bring that on again. - '.
- The nurse, Jennie Marah, who impressed me as being a very truthful and conscientious witness, had been with- the deceased some time before the will was executed. . She was in the room at the time of the execution of the will, and heard the deceased say that he wanted $5,000 to go to his son Edward, and after the will was made he said he felt happy.
She testified that after the making of the will Ralph’s, treatment of him changed.. He handled his grandfather roughly and spoke harshly to him, and on an occasion after the making of the ’ will and before the codicil was executed, the witness heard Ralph talking with his grandfather about the will, and heard Ralph say (quoting the words of the witness): “As sure, as there was a God in heaven he would suffer from the way he treated him.” '
She observed a decided change in the old man’s -manner and condition a few days after the will was made, which continued down to his death.
. r Before this change came he was anxious to live, spoke about [451]*451being provided, with winter clothing, took his medicine regularly and até well. After the change, he refused to take his medicine, said he was going to die, -and complained that the nurse was trying to keep him living and evidenced a restlessness and uneasiness and a desire to die.
He complained to the nurse of Ralph’s treatment of him. He said that he was tormenting him, and told her that Ralph was not pleased with the way he had fixed his property, and that he was tormenting him, and that he said that he was going away from him, and would leave the place, which he assigned as his reason for wanting to die.
He also said to the witness that Ralph threatened to hang himself, as his father had done, if he did not change things. This all occurred in the month of May, between the time of the making of the will and the codicil. He frequently expressed his fear that Ralph would leave him, and would say: “ What will I do if Ralph leaves? ”
This witness testified that his troubles and Ralph’s manner toward him and treatment of him seemed to be on his mind all the time.
The morning of the day the codicil was executed he was very uneasy, and sent the nurse to the bam to Ralph to know if Mr. Huested was coming. After the éxecution of the codicil, he refused to take his medicine; his condition grew gradually worse; he did not want to see the contestant ór speak to the contestant’s wife, whereas before he had always wanted to' see them, and was cordial in his manner toward them.
He requested that the contestant be not informed of the making of the codicil.
These facts and conditions, in connection with the radical change made in the provisions of the will, so shortly after its execution, and the fact that the change in the testator’s condition began almost immediately after Ralph became aware of the provisions of the will in respect to the $5,000, are only consistent with the conclusion that the codicil was the result of duress or fear, produced by Ralph’s conduct, treatment and threats.
In the helpless condition in which he was and dependent upon Ralph, he apparently feared that unless he made a change to accord with Ralph’s views, he would either hang himself, as his father had done years before, or would abandon the pláce and leave the old man helpless and alone.
[452]*452While it is apparent from the testimony that the deceased, himself gave the instructions to Mr. Huested in reference to the change that he . wanted made, and that the preparation and execution of the codicil were regularly and orderly done, and while I am fully satisfied that Mr. Huested and the .subscribing wit-, nesses observed nothing at the time to indicate that the deceased was laboring under any restraint or any improper influence, I am, nevertheless, forced to the conclusion that he had been so wrought upon, harassed, and tormented, that he had determined to rid himself of further annoyance and of the danger of Ralph’s leaving him, by having his (Ralph’s) wishes complied with.
If so, the codicil was not his will, but was the will and desire of Ralph, and in the light of the original will and all the surrounding circumstances, was the result of the controlling influence of Ralph’s conduct and threats.
In coming to this conclusion, I have carefully considered the testimony of all the witnesses,. and have not considered the _declarations made by the deceased to the witnesses, in the absence of Ralph, except so far as they tend to show the effect of Ralph’s threats .and treatment upon the testator.
A decree will, therefore, be made, admitting the will to probate and refusing probate to the codicil,, with costs to all parties out of the estate.
Ordered accordingly. ■ ■