Van Brunt, P. J.
The will in question was dated and executed on the 10th of February, 1883. The testator died on the 3d of May, 1883, leaving a wife, Lilly W. Hamersley, but no children, and no father or mother. His father died in the January preceding his own death. The only next of kin of the testator on his father's side was his uncle, John W. Hamersley, a brother of the testator’s father. Upon his mother’s side the testator had a number of next of kin,—brothers and sisters of his mother, and their descendants. The testator was the only child of Andrew Gordon Hamersley. He was married in 1879, and was before that, time, and afterwards, a gentleman of large fortune, although the bulk of his estate at the time of his death had been recently derived from his father. By the will the testator substantially gave the whole income of his property to his wife for life, and after her death he willed all of it to his own issue, if any, and in default of such issue to the male issue of his cousin, J. Hooker Hamersley, and in default of such issue to such charitable societies of New York as his wife by her will or other instrument in writing might designate and appoint. The probate of this will was contested upon the ground that it was radically different from a holographic will written by the testator six weeks earlier, but which he was prevent,ed from executing; that Louis C. Hamersley was a man of weak mind, and that the alleged will was not duly executed; that the mind of Louis C. Hamersley did not accompany the act of execution, and that he had no conscious knowledge of the alleged will; and that the will was obtained by undue influence practiced upon him by his wife, and others acting in her interest.
An examination of the record shows that the most material part of the testimony upon which the casé of the contestants depends was taken in absolute defiance of the prohibition of sections 834 and 835 of the Code. Lawyers and physicians of the testator were examined, and testified from knowledge procured at professional visits made upon the testator and by the testator to them. This evidence seems to have been admitted upon the theory that the prohibition of sections 834 and 835 did not apply to testamentary cases. It is difficultto see, upon a reading of the sections in question, how any such idea came to be entertained, because their language is positive and unequivocal, and makes no exceptions as to the class of cases to which they shall apply; and they must necessarily apply to testamentary cases as well as to any others, unless the plain provisions of the sections are to be repealed by judicial legislation. They require no construction, but are plain and explicit; and they condemn the admission of this testimony, and such evidence cannot be considered by this court in the determination of this appeal. The evidence shows by a preponderance of testimony that the testator was not of that weak mind which is claimed by the contestants. It would appear from such evidence that he was a man of certainly ordinary capacity, and a rather stubborn will. Neither is the claim that the alleged will was not duly executed, and that the mind of the testator did not accompany the act of execution, and that he had no conscious knowledge of the will, sustained by evidence. The due execution of the will was proved, if we leave out of the case the testimony of Lockman, as to what transpired between the testator and himself. We have, then, the case of a testator having in his possession a will drawn by his solicitor, signed by him in the presence of the witnesses, and stating that it was satisfactory [481] to him as his will, and acknowledging and declaring the instrument, in response to a question put to him, to be his last will and testament, and requesting the witnesses to sign it. This evidence shows a perfect execution of the will, and there is no presumption whatever to be drawn from the circumstance that the testator was unacquainted with the contents of the instrument which he signed after having declared himself satisfied with it. If we take into consideration the testimony of Lockman, which probably we have no right to do, then it is clear that the testator gave the instructions to draw the will in the manner in which it was drawn, and there is every reason to believe that before execution he read it and acquainted himself with its contents. There is no presumption to be indulged in against an intelligent execution where the testator has ample time and ample opportunity to acquaint himself with the contents of the instruments executed.
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Van Brunt, P. J.
The will in question was dated and executed on the 10th of February, 1883. The testator died on the 3d of May, 1883, leaving a wife, Lilly W. Hamersley, but no children, and no father or mother. His father died in the January preceding his own death. The only next of kin of the testator on his father's side was his uncle, John W. Hamersley, a brother of the testator’s father. Upon his mother’s side the testator had a number of next of kin,—brothers and sisters of his mother, and their descendants. The testator was the only child of Andrew Gordon Hamersley. He was married in 1879, and was before that, time, and afterwards, a gentleman of large fortune, although the bulk of his estate at the time of his death had been recently derived from his father. By the will the testator substantially gave the whole income of his property to his wife for life, and after her death he willed all of it to his own issue, if any, and in default of such issue to the male issue of his cousin, J. Hooker Hamersley, and in default of such issue to such charitable societies of New York as his wife by her will or other instrument in writing might designate and appoint. The probate of this will was contested upon the ground that it was radically different from a holographic will written by the testator six weeks earlier, but which he was prevent,ed from executing; that Louis C. Hamersley was a man of weak mind, and that the alleged will was not duly executed; that the mind of Louis C. Hamersley did not accompany the act of execution, and that he had no conscious knowledge of the alleged will; and that the will was obtained by undue influence practiced upon him by his wife, and others acting in her interest.
An examination of the record shows that the most material part of the testimony upon which the casé of the contestants depends was taken in absolute defiance of the prohibition of sections 834 and 835 of the Code. Lawyers and physicians of the testator were examined, and testified from knowledge procured at professional visits made upon the testator and by the testator to them. This evidence seems to have been admitted upon the theory that the prohibition of sections 834 and 835 did not apply to testamentary cases. It is difficultto see, upon a reading of the sections in question, how any such idea came to be entertained, because their language is positive and unequivocal, and makes no exceptions as to the class of cases to which they shall apply; and they must necessarily apply to testamentary cases as well as to any others, unless the plain provisions of the sections are to be repealed by judicial legislation. They require no construction, but are plain and explicit; and they condemn the admission of this testimony, and such evidence cannot be considered by this court in the determination of this appeal. The evidence shows by a preponderance of testimony that the testator was not of that weak mind which is claimed by the contestants. It would appear from such evidence that he was a man of certainly ordinary capacity, and a rather stubborn will. Neither is the claim that the alleged will was not duly executed, and that the mind of the testator did not accompany the act of execution, and that he had no conscious knowledge of the will, sustained by evidence. The due execution of the will was proved, if we leave out of the case the testimony of Lockman, as to what transpired between the testator and himself. We have, then, the case of a testator having in his possession a will drawn by his solicitor, signed by him in the presence of the witnesses, and stating that it was satisfactory [481] to him as his will, and acknowledging and declaring the instrument, in response to a question put to him, to be his last will and testament, and requesting the witnesses to sign it. This evidence shows a perfect execution of the will, and there is no presumption whatever to be drawn from the circumstance that the testator was unacquainted with the contents of the instrument which he signed after having declared himself satisfied with it. If we take into consideration the testimony of Lockman, which probably we have no right to do, then it is clear that the testator gave the instructions to draw the will in the manner in which it was drawn, and there is every reason to believe that before execution he read it and acquainted himself with its contents. There is no presumption to be indulged in against an intelligent execution where the testator has ample time and ample opportunity to acquaint himself with the contents of the instruments executed.
The objection that the will is radically different from the holographic will written by the testator six weeks earlier, which he was prevented from executing, and that therefore the alleged will was obtained by undue influence practiced upon the testator by his wife, is wholly unsupported by the evidence. The position of the contestants seems to be that because the wife had an opportunity to exert undue influence, and had a motive to exercise such influence, and because provision is made for her beyond what the law provides for her, she has exercised such undue influence. It seems to us that no such presumption can arise, and that undue influence must be proved precisely as any other fact, and cannot be presumed. Upon the contrary, where there are two inferences which may equally well be drawn from the testimony upon the question of undue influence we are bound to accept that which is consistent with honesty and fair dealing, and reject that which establishes a fraud. A wife or a parent has a right to exert influence, has a right to advise, has a right to urge, and has a right to suggest, and, unless the argument or suggestion is of so potent a character that it overcomes the will of the testator, it in no manner impairs the validity of the act, even if done in accordance with the advice or suggestion. Influence is not necessarily undue, and it must be undue influence which is established by the evidence, before a will can be impeached upon that ground. Where is the evidence of the exercise of any influence whatever by the wife of the testator in respect to the execution of this will? It is alleged that the evidence of this influence is to be found in the fact that the will as executed is radically different from the holographic will written by the testator six weeks earlier. But let us consider a moment the circumstances under which that will was prepared. The testator’s father was then alive. It is apparent that in the preparation of that will the father exerted a strong influence upon the son, because we find a draft for the son prepared in the father’s handwriting. Is it not rather to be presumed that this unexecuted holographic will was prepared because of the undue influence of-the father upon the son, which influence, however, the son so far resisted that he did not execute the will, than to be presumed that the execution of the will in question was due to the undue influence of his wife? In view of the relations existing between the father and the son, and in view of these documents having been prepared by the father in the first instance, there is just as much evidence, and probably more, tending to establish the inference that undue influence was exercised' by the father to induce the son to make the will about which he was negotiating with Mr. Strong, rather than that the wife was guilty of undue influence in causing the will to be prepared. We can find no presumption in favor of undue influence to bring about the execution of the will, which cannot be applied with tenfold force to the preparation of the proposed unexecuted will. It is not the province of the court to set aside wills merely because they fancy there may have been some undue influence exercised. In order that the decree of the surrogate may be overthrown in a case of this description, there must be grave doubts as to whether [482] the will in question was the will of the testator, not that there may be some doubt upon the question; and those doubts cannot rest upon fancy but upon fact. We think, therefore, that there is nothing upon which the claim that this will was not the will of the testator, duly executed without duress or restraint, can rest.
Some exceptions have been taken to the admission of evidence, and to one of these only it is necessary to call attention, as Mr. Justice Macomber seems to think that error was thereby committed. He says, [post, 484:) “Testimony was sought to be given by the appellants that the testator had made declarations after the date of the will to the effect that his wife had made efforts to influence and obtain from him a will in her favor. The effort appears’in different parts of the case, but more conspicuously when the witness Cortlandt De Peyster Field was on the stand. The following questions were asked of this witness: ‘Did you ever have any conversation with Louis Ilamersley about another will,—about an effort being made to induce him to makeacertain will, by any person ? ’ Objected to. Objection sustained. ‘ Did Louis Hamersley ever say anything to you about efforts being made by his wife to obtain from him a will?’ Objected to as hearsay. ‘The Surrogate. It is not a declaration of testamentary purpose, and I do not think you can prove undue influence by the decedent himself.’ Exception. ‘ Did he say anything to you upon thesubject of whether or not his wife had asked him to make a will in her favor?’ Objected to. Objection sustained. Exception.” This ruling, the learned judge states, “does not seem to be in accord with the decisions of this court. In Re Clark, 40 Hun, 237, the court say: ‘ The proponents also took exception to the admission of declarations made by the testator in November following the time of making the will. These declarations had relation to the terms of the will he had made and the one he first undertook to make, and in respect to this added that his wife objected to it, and he had to make another. This evidence was clearly incompetent to prove the contents of the will in question, or those of that he first had the purpose to make, or to show that the one made was caused or produced by duress. The validity of the will cannot be affected or impeached by his declarations. They were no part of the res gestee, and therefore were not any or competent evidence of the facts stated by them. * * * But the question on trial was whether the will was the result of undue influence which involved the consideration of the mental condition of the testator at the time he made it. Although he was then of sound disposing mind and memory, his susceptibility to the influence and control of others depended somewhat upon the vigor and character of his mind and will power. He was in feeble health at and from the time the will was made until his death; notwithstanding he improved in that respect, and was out some in the mean time. His declarations were only competent as bearing upon the state and condition of his mind at the time of the testamentary act. The declarations were made about two months afterwards, and were not separated from the act by such length of time; nor were there such intermediate changes of condition as to enable the court to hold as matter of law that it was not competent to prove them with a view.to the inquiry as to his mental vigor and condition at the time the will was executed as bearing on the question of undue influence.’” And we are also referred to a decision in 99 Mass. 112, (Shailer v. Bumstead,) to the same effect. But, applying this rule to the questions asked, it appears that they by no means complied with the requirements therein contained, because there is no time fixed as to when these declarations were made. There is no evidence that they were made so soon after the execution of the will as to afford a reasonable inference that such was then the condition of his mind. But it rather appears that they were made before the execution of his will, (whether during the life-time of his father we know not,) and therefore it does not appear that there were not such intermediate changes of condition after the death of his father as would naturally [483] destroy them as an argument for the purpose of upsetting the testamentary disposition of his property made subsequent to that event.
But upon a further examination of the case it appears that, as far as these questions were relevant, the witness was not in possession of facts which tended in any way to show that any undue influence had been exercised by his wife, or any improper solicitations had been made upon her part in relation to the making of the will. The witness was asked, immediately after the last ruling: “Have you told us all you know about the testamentary declarations?” and he answered: “I think I have told all I remember at the moment. Question. Did he ever make any declarations to you as to his intention with reference to his wife? Answer. I dare say he has, but I don’t remember anything specifically. Q. You cannot state anything definite at the moment? A. I don’t remember anything specific. Q. Can you state the substance of anything? A. I don’t think I can. Q. Do you mean to say you don’t-remember? A. I don’t remember. I have an indistinct recollection of a great many things which I cannot put into a sufficient form to answer the question.” Here it appears that the witness had told all that he knew in regard to the testamentary declarations of the testator. And the mere fact that the witness was willing to swear to the circumstance that Louis C. Hamersley had told him that his wife had asked him to make a will in her favor cannot in any way impair the validity of the act which had been done, and by which his wife might be said to profit. Under the language of section 2545 of the Code of Civil Procedure the general term should not order a new trial unless it appears that the exceptant was necessarily prejudiced by an erroneous ruling. There is no evidence of any prejudice. Upon the contrary, the weight of the evidence is that the testimony, even if admitted, would have been of no particular consequence upon this issue of undue influence. But it is urged by the learned justice that because of the testimony of Strong, showing the earlier testamentary disposition in the negotiations or interviews with him in regard to the unexecuted will, this evidence becomes important. As already stated, the court had no right to consider the evidence of Strong. It was given in violation of the rules of section 835 of the Code. For this reason, therefore, it affords no support whatever to the claim that the evidence of Cortlandt De Peyster Field may have been important. But, conceding that Strong’s evidence is to be considered, how does that evidence establish anything else than that the father was endeavoring to get the son to make a will? ■Or, even if that be not so, then the change in the testator’s condition by reason of the death of the father was a sufficient reason for the change of testamentary intention. Without proceeding further in the discussion of the evidence in this case, which is too voluminous to be gone into at length, it is sufficient to sum up the whole matter to say that there is no evidence whatever of undue influence exercised upon the part of Mrs. Hamersley to obtain the making of the will in question by the testator; and the necessary conclusion is that the will was duly executed, the testator having full knowledge of its contents, he having had ample opportunity to acquaint himself therewith, and apparently having done so. The decree of the surrogate should be affirmed, with costs.
Brady, J., concurs.