Fowler, S.—
The motions for a new trial and judgment having come on to be heard, pursuant to the practice directed in this court (Matter of Dorsey, 94 Misc. Rep. 566), after deliberate consideration I have been unable to find any exceptions which warrant the granting of a new trial. The surrogate in every probate cause tried with a jury is compelled to decide whether or not there is an issue for the jury and whether a verdict against the will would be against the weight of evidence. (Matter of Dorsey, 94 Misc. Rep. 566.)
On the trial no serious point was made about the due execu[519]*519tion of the will, and all the contestants’ efforts were directed to the plea of undue influence. On the motion for a new trial the insistence seems to be reversed, and the alleged defective execution is given the prominent place. To my mind the execution of the will was fully established and not contradicted. Discrepancies in the testimony of attesting witnesses as to the order of execution are not sufficient to impeach the execution of a will, if the essentials of execution are otherwise established and not controverted. Here was a full certificate of attestation in the usual form used in this jurisdiction. The ceremony of execution was superintended by a lawyer authorized to practice in this jurisdiction. From the attendance of such lawyer there is per se some presumption of regularity of execution.
The exclusion of the opinion- of the expert, in reference to the genuineness of the- testator’s mark, was in conformity with the rule, as I understand it, in this State. Marks are not within the reasons assigned for opinion evidence. It would be improper, I think, to take the opinion of an expert on the genuineness of a mark made .under the circumstances given in evidence in this proceeding.
I now come to the plea of undue influence, upon which, originally, the whole contest was made on the trial. There, seems to be an impression among some practitioners in this court that a plea of undue influence can be established in a probate cause by less evidence, or by proofs of a less cogent kind, than those required to establish other defensive pleas in this court. They seem to think that the rules governing the logical relevancy of proofs have no application to pleas of undue influence. . It is- almost needless to say that this is not the fact. But as juries have come to be employed in the course of the surrogates’ preliminary inquisition as to factum of will, it is perhaps of fundamental importance that this misconception should be speedily corrected, or great injustice may result to testators and to the testamentary power in general. Unless on [520]*520trials of this kind held! with juries, the judge restrains the evidence within legal bounds I can conceive of no greater wrong to the testamentary power. It must be remembered that the right to make a will is still in force in this jurisdiction. Loose juridical notions and doctrines upon the nature of the plea or the proofs of undue influence will tend to disturb the right still conferred to make a will. This is a fortiori so now that this subtle and highly specialized plea is to be dealt with by common juries on the probate.
In Matter of Hermann (87 Misc. Rep. 476, 481, affd. above), I took occasion to point out with some care that a plea of undue influence always imports coercion or compulsion of the mental states of testator in respect of the act of will, and in substance that unless the proof of coercion was sufficient and cogent the plea of undue influence was not made put in law. My opinion was fortified by authority, and it was affirmed on appeal. But I will not rest on any adjudication of my own.. Undue influence has been defined in the country whence we derive our testamentary common law as influence of such a nature that the volition of a testator is. subjected to the coercion or domina-' tion of another person. (Parfitt v. Lawless [1876, L. R.], 2 P. & M. 462 ; Wingrove v. Wingrove [1886], 11 P. D. 81 ; Baudains v. Richardson [1906], A. C. 184, 185, per Lord Macnaghten. And see other cases cited in Powles & Oakley Probate [4th ed.], page 36, n. P.)
. Coercion is at all times the essence of undue influence. In a number of adjudications in this court I have cited the leading decisions of our own courts reaffirming in substance the common-law doctrine that coercion is the essence of undue influence. (Matter of Hermann, 87 Misc. Rep. 476 ; Matter of Van Ness, 78 id. 599.) A controlling definition of undue influence in testamentary causes is contained in Gardiner v. Gardiner (34 N. Y. 161), and it is in strict conformity with the testamentary common law already cited.
[521]*521Our superior courts in common with superior courts elsewhere have held that undue influence may be made out by what is called circumstantial or indirect evidence, as-it is not always possible to prove undue influence by direct evidence. (Rollwagen v. Rollwagen, 63 N. Y. 519.) There are doubtless some unguarded, and, I think, unjustified expressions, largely obiter dicta, that such proofs should be liberally received by the trial court. But be this as it may, our courts have nowhere said that. any circumstance, or any misconduct, or any misbehavior on the part of any beneficiary taking under the will is a circumstance which may be adduced to establish undue influence. A circumstance or item of evidence which does not logically bear on coercion of the testator’s mental states in and about the very act of will is not entitled to be given in evidence on the trial of an issue of undue influence. (Boyse v. Rossborough, 6 H. L. Cas. p. 51.)
Undue influence is never presumed from the mere situation of the parties, or from the fact that the party alleged to have wielded the undue influence benefits- by the testament in controversy. (Boyse v. Rossborough [1857], 6 H. L. Cas. p. 49, per Lord Cranworth ; Parfitt v. Lawless, supra ; Spiers v. English [1907], p. 24.) To maintain the contrary is, in-reality, to cast the onus in the first instance in every probate cause on those preferred by a will to disprove undue influence. Yow our courts have repeatedly said that mere opportunity to exercise undue influence does not establish -the allegation of coercion. (Matter of Gihon, 44 App. Div. 621, 622 ; Seguine v. Seguine, 3 Keyes, 669 ; Cudney v. Cudney, 68 N. Y. 149, 152 ; Matter of Mondorf, 110 id. 456.) Yet much of the proofs ordinarily offered to support pleas of undue influence are addressed to opportunities to commit the offense. The decisions last indicated were only in conformity with Lord Chancellor Crakworth’s celebrated judgment in Boyse v. Rossborough (6 H. L. Cas. p. 51), where he said: “ In order to set- aside [522]*522the will of a person of sound mind it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown- that they are inconsistent with a contrary hypothesis. The undue influence must be exercised in relation to the will itself.” (Cited at lenth in Tristram & Coote’s Probate Pr. [14th ed.] 412.)
It is too often forgotten in probate causes that the- coercion which is always the basis of undue influence in probate common law must be exercised -in relation to the will itself. It is not sufficient to prove coercion in respect of other matters. (Mortimer Probate Practice, 78 ; Seguine v.
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Fowler, S.—
The motions for a new trial and judgment having come on to be heard, pursuant to the practice directed in this court (Matter of Dorsey, 94 Misc. Rep. 566), after deliberate consideration I have been unable to find any exceptions which warrant the granting of a new trial. The surrogate in every probate cause tried with a jury is compelled to decide whether or not there is an issue for the jury and whether a verdict against the will would be against the weight of evidence. (Matter of Dorsey, 94 Misc. Rep. 566.)
On the trial no serious point was made about the due execu[519]*519tion of the will, and all the contestants’ efforts were directed to the plea of undue influence. On the motion for a new trial the insistence seems to be reversed, and the alleged defective execution is given the prominent place. To my mind the execution of the will was fully established and not contradicted. Discrepancies in the testimony of attesting witnesses as to the order of execution are not sufficient to impeach the execution of a will, if the essentials of execution are otherwise established and not controverted. Here was a full certificate of attestation in the usual form used in this jurisdiction. The ceremony of execution was superintended by a lawyer authorized to practice in this jurisdiction. From the attendance of such lawyer there is per se some presumption of regularity of execution.
The exclusion of the opinion- of the expert, in reference to the genuineness of the- testator’s mark, was in conformity with the rule, as I understand it, in this State. Marks are not within the reasons assigned for opinion evidence. It would be improper, I think, to take the opinion of an expert on the genuineness of a mark made .under the circumstances given in evidence in this proceeding.
I now come to the plea of undue influence, upon which, originally, the whole contest was made on the trial. There, seems to be an impression among some practitioners in this court that a plea of undue influence can be established in a probate cause by less evidence, or by proofs of a less cogent kind, than those required to establish other defensive pleas in this court. They seem to think that the rules governing the logical relevancy of proofs have no application to pleas of undue influence. . It is- almost needless to say that this is not the fact. But as juries have come to be employed in the course of the surrogates’ preliminary inquisition as to factum of will, it is perhaps of fundamental importance that this misconception should be speedily corrected, or great injustice may result to testators and to the testamentary power in general. Unless on [520]*520trials of this kind held! with juries, the judge restrains the evidence within legal bounds I can conceive of no greater wrong to the testamentary power. It must be remembered that the right to make a will is still in force in this jurisdiction. Loose juridical notions and doctrines upon the nature of the plea or the proofs of undue influence will tend to disturb the right still conferred to make a will. This is a fortiori so now that this subtle and highly specialized plea is to be dealt with by common juries on the probate.
In Matter of Hermann (87 Misc. Rep. 476, 481, affd. above), I took occasion to point out with some care that a plea of undue influence always imports coercion or compulsion of the mental states of testator in respect of the act of will, and in substance that unless the proof of coercion was sufficient and cogent the plea of undue influence was not made put in law. My opinion was fortified by authority, and it was affirmed on appeal. But I will not rest on any adjudication of my own.. Undue influence has been defined in the country whence we derive our testamentary common law as influence of such a nature that the volition of a testator is. subjected to the coercion or domina-' tion of another person. (Parfitt v. Lawless [1876, L. R.], 2 P. & M. 462 ; Wingrove v. Wingrove [1886], 11 P. D. 81 ; Baudains v. Richardson [1906], A. C. 184, 185, per Lord Macnaghten. And see other cases cited in Powles & Oakley Probate [4th ed.], page 36, n. P.)
. Coercion is at all times the essence of undue influence. In a number of adjudications in this court I have cited the leading decisions of our own courts reaffirming in substance the common-law doctrine that coercion is the essence of undue influence. (Matter of Hermann, 87 Misc. Rep. 476 ; Matter of Van Ness, 78 id. 599.) A controlling definition of undue influence in testamentary causes is contained in Gardiner v. Gardiner (34 N. Y. 161), and it is in strict conformity with the testamentary common law already cited.
[521]*521Our superior courts in common with superior courts elsewhere have held that undue influence may be made out by what is called circumstantial or indirect evidence, as-it is not always possible to prove undue influence by direct evidence. (Rollwagen v. Rollwagen, 63 N. Y. 519.) There are doubtless some unguarded, and, I think, unjustified expressions, largely obiter dicta, that such proofs should be liberally received by the trial court. But be this as it may, our courts have nowhere said that. any circumstance, or any misconduct, or any misbehavior on the part of any beneficiary taking under the will is a circumstance which may be adduced to establish undue influence. A circumstance or item of evidence which does not logically bear on coercion of the testator’s mental states in and about the very act of will is not entitled to be given in evidence on the trial of an issue of undue influence. (Boyse v. Rossborough, 6 H. L. Cas. p. 51.)
Undue influence is never presumed from the mere situation of the parties, or from the fact that the party alleged to have wielded the undue influence benefits- by the testament in controversy. (Boyse v. Rossborough [1857], 6 H. L. Cas. p. 49, per Lord Cranworth ; Parfitt v. Lawless, supra ; Spiers v. English [1907], p. 24.) To maintain the contrary is, in-reality, to cast the onus in the first instance in every probate cause on those preferred by a will to disprove undue influence. Yow our courts have repeatedly said that mere opportunity to exercise undue influence does not establish -the allegation of coercion. (Matter of Gihon, 44 App. Div. 621, 622 ; Seguine v. Seguine, 3 Keyes, 669 ; Cudney v. Cudney, 68 N. Y. 149, 152 ; Matter of Mondorf, 110 id. 456.) Yet much of the proofs ordinarily offered to support pleas of undue influence are addressed to opportunities to commit the offense. The decisions last indicated were only in conformity with Lord Chancellor Crakworth’s celebrated judgment in Boyse v. Rossborough (6 H. L. Cas. p. 51), where he said: “ In order to set- aside [522]*522the will of a person of sound mind it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown- that they are inconsistent with a contrary hypothesis. The undue influence must be exercised in relation to the will itself.” (Cited at lenth in Tristram & Coote’s Probate Pr. [14th ed.] 412.)
It is too often forgotten in probate causes that the- coercion which is always the basis of undue influence in probate common law must be exercised -in relation to the will itself. It is not sufficient to prove coercion in respect of other matters. (Mortimer Probate Practice, 78 ; Seguine v. Seguine, 3 Keyes, 669 ; Theobald Law of Wills [6th ed.], 28.) The coercion, which is the gravamen of undue influence, and I cannot be too emphatic about this, must be destructive of the free agency of the testator; it must -overpower his volition; it must be tantamount to force and fear. Coercion which leaves the testator’s judgment free is not sufficient to establish undue influence. Proofs of mere importunity, a general dictatorial conduct of legatees or devisees toward a testator, unless connected with- the act of will, are not evidence of that coercion which in testamentary law suffices to destroy the will of an otherwise competent testator. This is especially true when in the act of will a testator is proved to have been surrounded by all those safeguards and- precautions which, the Statute of Wills in its wisdom malees essential to a valid exercise -of the testamentary power.
In -almost every will case of importance the attendance of a lawyer of elevated professional' character, of disinterested and highly respectable attesting witnesses, summoned by the testator himself to- -the ceremony of execution, the formal circumspection and deliberation ordinarily attending the execution of a will, in most instances, at least, serve to repel the inference possible from the disconnected circumstances generally adduced in support of the plea of undue influence. These are too often gossip [523]*523called by the high-sounding name of declarations, or res gestae, of an inconclusive kind. On every trial it is for the surrogate to determine in the first instance whether such proofs are in law sufficient to support a verdict against the will. If he do not, he is highly derelict in his duty. To abandon to a jury proofs consisting of circumstances which may, but which necessarily dio not, show coercion in and about the act of will, is practically to destroy the testamentary power in the greatest .number of cases. It is for this reason that the surrogate should never leave such proofs to a jury. If in law the circumstantial evidence adduced in support of undue influence is insufficient, it is error for the surrogate to leave the case with the jury.
The Irish Probate Law, from its foreign origin, its tradition and its substance, more nearly resembles our own than modern English probate law. It is well said in a leading Irish case: “ That a contestant is not entitled to have an issue of undue influence left to the jury unless reasonable evidence is given: That the person charged had influence over the testator; (2) that he exercised such undue influence over 'him to the extent of coercion; and (3) that the execution of the impeached paper was procured by the exercise of such coercion as the causa causans of the act itself.” (Purdon v. Longford, 1 L. R. Ir. 80, cited in extenso in Miller’s Irish Probate Pr. 132.) I know "of no case in our own bo oles where the correct elements of undue influence are better indicated than in the case just cited. That case also serves to point out the duty of a surrogate in reference to submission of undue influence to a jury. It is that case which I esteemed to be a good and proper example for my action in this case. I believed that that case well ex-piressed the law recognized' in this jurisdiction. Motion for a new trial overruled. Motion for probate of the paper propounded, based on the directed verdict of the jury, granted. Settle decree of probate in due form, reciting the submission to the jury and -the proceedings for new trial and judgment.
Decreed accordingly.