Van Kleeck v. Phipps

4 Redf. 99

• Court: New York Surrogate's Court
• Decided: June 15, 1879
• Status: Published

Opinion

The Surrogate.—As there is no question raised against the due and formal execution of the instrument propounded as a last will and testament, no further consideration of that part of the case is necessary, especially as the testimony abundantly shows a substantial compliance with the requirements of the statute.

A careful consideration of the testimony, though very conflicting upon the point, I think leaves some doubt as to the mental capacity of the testator to have executed a will before his departure from Augusta. The testimony of the physicians, of course, is most reliable, as their duty and attendance upon him called them to observe carefully his mental condition, and I think that testimony is more reliable than that of any attendants, or the evidence of Mr. and Mrs. Phipps, who are obviously biased. Dr. Dessausdre Ford appears to have visited decedent, for the last time, on the 13th day of April; Dr. Campbell on the 14th, Dr. Lewis D. Ford on the 6th, and they all concur substantially in the opinion that he was incapable of understanding or attending to ordinary business transactions. Dr. Steiner, however, was in attendance upon him from the 1st of April until the 38th,- having taken charge of him April 18, and continued to his departure from Augusta, and may well" be regarded as the more reliable witness, respecting the decedent’s mental condition in the latter part of his stay at that place. His testimony shows that while decedent was capable of but very little mental effort in the early part of his attendance upon him, he became much more rational during the latter part; that he saw no evidence of incoherency during the last week of his stay; that there was a decided improvement in decedent’s mental condition during the last week, and in his articulation, which enabled him to be understood without much difficulty, and that decedent .controlled the arrangements for his journey home.

This testimony would seem to prove sufficient mental capacity to make a will, if no important influences were brought to bear upon his mind. The decided weight of testimony in respect to decedent’s condition at the time of the execution of the instrument in question, tends to show the gradual improvement in the decedent’s mental condition, up to the time of such execution, and indeed down to the 18th day of May, when the receipt of the money from Mr. Taylor, and his giving of a receipt therefor took place, which leaves no doubt of his then mental soundness.

But while it is true that under the authorities this evidence shows an intelligent and disposing mind, sufficient for the execution of such an instrument, it is quite apparent, from the testimony, that his mind was somewhat affected by his paralysis, and must have been in a weak condition at the time of its execution. This fact must be considered in determining the final question, whether the instrument was the result of undue influence exercised upon the mind of the testator or not.

Redfield (American Cases upon the Law of Wills, p. 472), in defining what is meant by undue influence, says : “ We may safely say that where an unjust will is produced by deception and fraud, it cannot be upheld. ' O So too, where such a will is the offspring of any influence brought to bear upon the testator in any manner, so as to overcome his free agency, it cannot be sanctioned by law. It matters not whether the influence be force, or fear, or importunity, destroying peace of mind. It is often said in the cases, that influence resulting from love, dnty and affection, will not be regarded as unlawful. But we have never hnown a case where even this kind of influence was carried to the extent of producing an unjust will, more through the agency of the principal beneficiary than of the testator, that it could be upheld in a court of justice.” The same learned commentator, in his treatise upon the Law of Wills, page 519, cites, with approbation, the language of Eyre, C. B., in Mountain v. Bennett (1 Cox, 355), as follows: “If a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate Ms affairs in general; yet, if such a dominion or influence were acquired over him, as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind (as if actual force were resorted to).”

See also Tyler v. Gardner (35 N. Y., 559), in which Judge Porter cites with approval Bergen v. Udall (31 Barb., 9).

In Turner v. Cheesman (15 N. J. Eq., 265), the rule was stated to be that the influence exercised over a testator, which the law regards as undue, or illegal, must be such as to destroy his free agency, but no matter how little the influence, if the free agency is destroyed, it vitiates the act which is the result of it.

The amount of undue influence which will be sufficient to invalidate a will, must, of course, vary with the strength or weakness of the mind of the testator; but the influence which will vitiate a will must be such as in some degree to destroy the free agency of the testator, and constrain him to do what is against his will, but what he is unable to refuse, or too weak to resist. The influence, to vitiate an act, must amount to force or coercion (moral coercion), destroying free agency ; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Purther, there must be proof that the act was obtained by the coercion, by importunity which could not be resisted ; that it was done merely for the sake of peace, so that the motive was tantamount to-force or fear. (Jarman on Wills, 36, 39 ; and see Davis v. Culvert, 5 Gill & J., 302; and Gilbert v. Gilbert, 22 Ala., 529.)

In Dailey v. Dailey (3 Bradf., 481, 507, 8), the Surrogate draws a distinction between duress and undue influence, and in describing the nature of the latter, proceeds to say: “The stronger will frequently acquires an extraordinary power over the weaker, not by mere dint of importunity, by threat or force, but by that steady persistence, that unrelenting pursuit of its purpose which wears away less stubborn determinations, or again, by artfully taking advantage of the play of emotions and passions, appealing to prejudices, flattering weaknesses, and fomenting quarrels. A dominion thus acquired, if employed to effect a testamentary act, may be just as potent, distinct, and positive in its results as if coercion had been used, and I cannot perceive why it. should not be viewed in the same light, and receive the same treatment at the hands of the court, as palpable duress.”

The undue influence must be of such a character as to dominate the will of a testator, and substitute the will of another in its stead. There must be such importunity or coercion as could not be resisted, so that the motive impelling the testator is tantamount to force or fear. (Leeper v. Taylor, 47 Ala., 221; Tyson v. Tyson, 37 Md., 567; Bicknell v. Bicknell, 2 Thomp. & C., 96; Rutherford v. Morris, 77 Ill., 397; Gardiner v. Gardiner, 34 N. Y., 155.)

In Redfield on Wills, 525, after an exhaustive review of all the authorities upon the subject, the result of such review is stated to be that such influence, to avoid a will, must be such as “ First, to destroy the freedom of the testator’s will, and thus render his act obviously more the offspring of the will of others than of his own. Second, that it must be an influence specially directed towards the object of procuring a will in favor of particular parties. Third, if any degree of free agency, a capacity, remained in the testator, so that when left to himself he was capable of making a valid will, then the influence which so controls him as to render his making a will of no effect, must be such as was intended to mislead him to the extent of making a will essentially contrary to his duty, and it must have proved successful to some extent, certainly.”

In Hazard v. Hefford (2 Him, 445), Mr. Justice Gilbert says: “ Evidence that the testatrix had been influenced in making a will, would lead to no legal result. Such an inquiry would lead to an investigation of the motives and the reasons operating on the mind of the testatrix to the confessions of a debt. It is therefore a wise and salutary rule that requires proof of actual coercion and fraud.”

If the learned judge, by this language, intended to hold that, in order to establish undue influence sufficient to overturn a will, actual coercion or fraud must be proved, I am of the opinion that he states the doctrine altogether too broadly, unless he designs to hold that the exercise of influence or persuasion, amounting to the control of a testator’s free agency, may be denominated coercion, and in a sense it may be what in the books is called moral coercion.

In Rollwagen v. Rollwagen (63 N. Y., 504), the court holds that influence exercised over a testator, which the law regards as undue or illegal, must be such as to destroy his free agency; bnfc no matter how little the influence, if free agency is destroyed, it vitiates the act which is the result of it.

The result of these authorities, together with many others that might be cited, seems to be that any influence brought to bear upon the mind of a testator, which leads him to surrender his free agency and adopt the will of another, is undue to the extent of avoiding the will. If a person be persuaded by appeals to his generosity, his affection, or his sense of duty, to make a will contrary to what he contemplated, yet, if the act be the legitimate result of such persuasion, acting upon his untrammeled judgment, it is not an unlawful persuasion, and a will is not a result of his surrender of his free agency, butrather the result of another’s persuasion upon an independent mind, capable of compliance or refusal. If, however, such a persuasive appeal be made toa person of too feeble a mind to resist, or to one who, from physical or mental weakness, is incapable of enduring or repelling the importunity, such persuasion or importunity would be undue, for the reason that it overcame and controlled the will of the testator, and his act became but the expression of the will of another. (See Redfield on Wills, 529.)

Having considered and clearly defined what constitutes undue influence, it becomes necessary to consider briefly what testimony is necessary to establish such an undue influence.

In Marvin v. Marvin (3 Abb. Ct. App. Dec., 192), it was held that undue influence in the making of a will might be inferred from circumstances. In Reynolds v. Root (62 Barb. 253), it was held that direct evidence of undue influence was not necessary; it may be, and most Requently is, a legitimate inference from other facts and circumstances in the case.

In this case the inference was sought: First, from the provisions of the will; Second, from what occurred at the making of it; and Thirds, from the mental and bodily condition of the testator, and his situation in the family of his son, whose family were the greatest beneficiaries under the will. In Forman v. Smith (7 Lans., 443), Miller, P. J., says; “Direct proof of undue influence can never, or at least but rarely, be given, and ordinarily it must be established by circumstances and inferences, to be drawn from facts and the character of the transaction. These facts could scarcely be known to the subscribing witnesses, who are simply called to attest the execution, and not to prove what usually wo aid. be beyond their knowledge. It also raises a violent presumption of fraud and undue influence, where a will executed by an old man differs from his previously expressed intentions, and if it is made in favor of those who stand in confidential relationship to the deceased, which should be overcome by satisfactory testimony.” (See Davis v. Calvert, 5 Gill & Johns., 269; Tyler v. Gardner, supra; Lewis v. Mason, 109 Mass., 109.)

Redfield on Wills, at p. 522, says : “Where the influence is shown tobe absolute, and irresistible over the lestatator upon general subjects, and there were constant opportunities of exerting such influence, and the will is unreasonably and extravagantly in favor of the party possessing such influence, the inference is legitimate that it was the result of that influence, and that even though the will were executed in the temporary absence of such person, upon the theory that the temporary withdrawal of that influence did not relieve the testator wholly from its effects.”

In the Matter of Humphrey (26 N. J. Eq., 513), it was held that whether, in any case, there was undue influence exerted upon the testator, must be determined from the facts. It is not a presumption, but a conclusion. In Sears v. Schafer (6 N. Y., 268), the court said that undue influence will be inferred from the nature of the transaction alone in some cases ; in others, from the nature of the transaction, and the exercise of occasional or feeble influence. In Rollwagen. In Rollwagen (63 N. Y., 519), Judge Rapallo says : “Undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of liis health and mind, dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person ” (citing numerous authorities). And at page 520, he well says : “A competent testator may bestow his property upon the objects of his affection, and he may from gratitude reward those who have rendered him services, but if one takes advantage of the affection or gratitude of •another, to obtain an unjust will in his favor, using his position to subdue and control the mind of the testator 1 -so as, substantially, to deprive him of his free agency, then the fact that affection or gratitude was the moving cause makes it no less a case of undue influence.”

In Fagan v. Dugan (2 Redf., 341), I had occasion to . consider this question, and at page 348 it is stated that “to prove that undue influence was present at the particular time of the execution of the instrument, it was not necessary to show that the duress was visible, or physically exercised at the moment of the execution, but that there must be such evidence as will satisfy the mind of the court or jury that the duress existed shortly before, and continued its domination over the mind of the testatrix at the time of execution; and that fraudulent results were usually attained by slow, adroit, and covert processes, manifested by numerous acts, each of which might be trifling in itself, but which, when combined, were sufficient to convince the mind of the existence of fraud.” Indeed, if undue influence or fraud be resulted to in any case, to procure the execution of a will in favor of the person exercising it, it would effectually defeat its object to exhibit any evidences of such influence at the execution of the instrument., If the undue influence had taken effect upon the mind of a testator, so as to subject it to the control of another, the adherence of the testator to the purpose thus influenced ■would be likely to manifest itself in dictating the terms of the will, and in its execution, though the person thus dominating the mind of the testator might be absent therefrom.

These principles may seem to contravene the doctrine enunciated in Seguine v. Seguine (3 Keyes, 363) and Deas v. Wandell (1 Hun, 120). In Cudney v. Cudney (68 N. Y., 148), it was held that an inofficious or undutiful will raised neither the presumption of mental incapacity or undue influence, and that it is not sufficient to show that a party benefited by a will had the motive and opportunity to exert undue influence, but there must be evidence that he did exert it.

But, when properly considered, these cases are not inconsistent with the rule that undue influence may be shown by circumstances, for if it be shown by circumstances, then there will be affirmative proof that it was exerted. Otherwise, these cases would entirely overrule ■the well-settled principle, that if a person occupying a confidential or fiduciary relation with the testator writes himself a legatee, or procures a will to be written in his favor, a presumption arises against the validity of the will, and the onus is imposed upon the proponent of proving that the decedent understood the terms of the will, and that it was executed voluntarily.

In Vreeland v. McLelland (1 Bradf., 393) it was held that a will drawn in favor of an executor or trustee, who was in the active management of the estate, and had not accounted with the cestui que trust, could not be supported without satisfactory evidence of its entire fairness. The fiduciary relation between the party creating a presumption against the act, and rendering necessary clear proof of volition and capacity, and that decedent, being of irregular'and intemperate habits, of weakened capacity, and dependent on the executor, whom he had made his devisee for the satisfaction of Ms pecuniary wants, the legal presumption was confirmed; and the proof, being defective, the will should be rejected. The same doctrine is maintained in Lake v. Ranney (33 Barb., 49) and Newhouse v. Godwin (17 Id., 236).

In Tyler v. Gardiner (supra), at page 595, Judge Porter says : “ It is no sufficient answer to the presumption of undue influence, which results from undisputed facts, that the testator was aware of the contents of the instrument, and assented to all its provisions ; this was the precise purpose which the undue influence was employed to acccomplish.” In Heguenin y. Baseley (14 Ves. 299), Lord Elboií says: “The question is not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced.”

In McLaughlin v. McDevitt (63 N. Y., 213), Chief 1 Justice Church says, in commenting upon the facts of that case : “During this period, he (the principal beneficiary) had access to, and was the only person who had the care, control, and management of the deceased. The beqxiest in his favor is contrary to the repeatedly-expressed intention of the testator, and there is evidence that he kept the testator excluded to some extent from liis friends. Under all the circumstances it behooves the, beneficiary to be provided with evidence that the instrument expressed the honest, spontaneous purpose of the testator to reverse his previous testamentary disposition. True, it does not appear precisely wha t the means employed were.- The testator was incurably sick; it was eleven days before his death, and whether the testator was so managed as to give the instructions, or whether he failed to understand the effect of what was done, does not appear.” And at page 220: “ It is not indispensable that the precise mode of committing the fraud should be proved ; if the circumstances raise a legitimate presximption of fraud it is proper to so find, in the absence of sufficient explanation.” (And see the language of Earl, J., in Rollwagen v. Rollwagen [supra], 521.)

It is always a suspicious circumstance, requiring satisfactory explanation, that the decedent was surrounded by those who are to benefit by the change, and makes a will radically different from that which he had recently made. (Forman v. Smith, 7 Lans., 443; Delafield v. Parish, 25 N. Y., 95.)

The facts which raise a presumption against the fair and free execution of the instrument propounded, and call upon the proponent satisfactorily to explain, are,

First. The will ignores all the decedent’s relatives, friends and associates except Mrs. Phipps, and wholly reverses his testamentary purposes, as expressed in his will of date 28th April, 1874, which disposed of his estate to his relatives, though remote, and to special friends and associates, but in which no mention of Mrs. Phipps, or any member of her family, is made ; while the evidence shows that his intimacy with her family was quite as great before, and at the time of its execution, as subsequently.

Second. The former will contained several bequests which were made as special expressions of kindly and interested remembrances, such as to Robert Leeds, William W. Leeds, Rev. Pennamore Leeds, Daniel W. Leeds (his namesake), the sons and daughters of Mr. Richards, his mother’s clothing to Mrs. Leeds, his porringer (his first present) to Mrs. Van Kleeck, his watch to Mr. Richards as a memento, he having had intimate and friendly business relations with him for many years, and particularly a $5,000 gift to Miss Van Kleeck, who had been for years a particular and admired favorite, whom he' .had visited, and shown marked attention and partiality, and whom he had informed of his remembrance of her in his will. This complete reversal appears to have been without any evidence of a change in his relations towards, or interest in, the several legatees, except such as is evinced by his silence respecting them in the instrument propounded ; and there appears also to have been no suggestion, either in the will itself or the instructions given to the attorney who drew it, or in any conversation, that he had any remembrance that he had made a prior will.

Third. The concededly impaired mental vigor of the decedent, at the time of the execution of the instrument offered for probate.

Fourth The decedent’s utter helplessness and dependence upon Mr. and Mrs. Phipps, and their family.

Fifth. The active agency of Mr. and Mrs. Phipps in procuring their own attorney to draw the will, and the witnesses who attested it.

Sixth. ■ The fact that the will in question bestows all decedent’s property upon a person alien to his blood and family.

What are the facts alleged in explanation of these suspicious circumstances %

First. The proof by Mr. Reed, that when he first entered the sick chamber and announced that he had come to draw decedent’s will, the latter said, in the presence of Mr. and Mrs. Phipps, that he wished to give all his property to Mrs. Phipps ; and that after Mr. and Mrs. Phipps had, at his request, i-etired from the room, decedent adhered to his purpose, and afterwards heard the instrument read, and said it was as he wanted it.

Second. The testimony of Mr. and Mrs. Phipps, that the terms of the will as well as the desire to make a will, were suggested by the decedent voluntarily, and that, they never attempted to influence him, either to make it, or suggested its provisions.

Third. That the present will was induced by the fact that since decedent’swill of 1874, was executed, the decedent’s friend had become insolvent, and that the decedent in sympathy for his condition, made' this bequest to his wife.

Fourth. That decedent made the change in his will as a-reward to Mrs. Phipps, as a recognition of her services, in nursing him in his last illness.

Fifth. That his relatives were remote, and his feeling toward them and the legatees had changed since the execution of his former will, by reason of their neglect of him during his last illness.

Sixth. That some ten days after the execution of the instrument, when decedent was concededly in better mental condition, he gave, inter vivos, the principal part of his property to Mrs. Phipps, in money.

The answer to the first attempted explanation will behest made in the language of Judge Portee, in Tyler v. Gardner (supra): “It is no sufficient answer to the presumption of undue influence, which results from undisputed facts, that the testator was aware of the contents of the instrument, and assented to all its provisions. This was the precise purpose which the undue influence was employed to accomplish.”

I cannot regard the voluntary statement of the- decedent before being asked, that he wished to give all his property to Mrs. Phipps, as adding anything to the explanation, for it was so readily uttered that it excites the suspicion that it may have been but- the expression of what had been just before suggested by the parties present, who were to1 be wholly benefited by the instrument about to be drawn.

These suggestions in noway implicate or cast suspicion upon the fidelity or the fair dealing of the honorable counsel who drew the will; for wherever undue influence has been exercised over a testator, that influence has taken effect before the instructions to prepare the will, and has been carefully kept from the draftsman, with the knowledge that, if exhibited or suggested to him, it would wholly defeat the unlawful purpose.

The second point of explanation needs to be carefully considered in the light of the interest and bias of Mr. and Mrs. Phipps, as well as in conjunction with certain other facts which reflect upon the credibility of their testimony ; and I think.it will not be seriously contended, that without the benefit of their testimony, the presumption of undue influence will be overcome in this case; nor will the suspicious circumstances be satisfactorily explained.

Dr. Marcy testified, that when he was seeking information of Mrs. Phipps, to enable him to prescribe for the decedent, she told him that decedent’s mind was not affected by his paralysis at Augusta, while all the physicians concur in stating the contrary. Dr. Ford says, that at first he was comatose. Dr. Campbell: “his mental faculties wholly clouded.” Dr. Steiner, a witness for proponent, and who finally took the entire charge of the patient, says: “Capable of very little mental effort for the first two weeks.”

Mrs. Phipps testified that the decedent could talk as well as anybody, if he was a-mind to, referring to Wednesday after the first Tuesday of April, about a week after his attack ; and Mr. Phipps swears to an extended conversation with the decedent, in which he took active part, the next morning after his attack. Yet Dr. Campbell testifies, that upon the 14th day of April decedent was unable to articulate, and Dr. Steiner, that he found decedent unable to speak, and until the last week he could scarcely speak at all, because of the paralysis of the tongue.

The third explanation seems to fall very far short of a satisfactory reason for the change in the decedent’s testamentary purpose, as the evidence shows that Mr. Phipps’s insolvency came to the knowledge of the decedent during the year 1873, and probably about the .middle of that year, while that will bears date April 28, 1874. But if, on the evidence, there is, any doubt as to the knowledge on the part of the decedent of Mr. Phipps’s pecuniary embarrassment at the time of the execution of the will, yet his attention was specially called to his former will, on the 15th day of March, 1875, when he prepared special instructions addressed to his executors respecting the carrying out of his wishes, and then, in May or June in the same year, when he informed his executor, Van Kleeck, that he had made a will, and named him executor, requesting him to serve, and informed him where the will was to be found ; and later still, in December, 1875, the night before he left for the South, he said to the said executor that he might never return ; that if he did not, he would find his will and instructions as he had stated, showing quite conclusively that the pecuniary embarrassments of his friend, Mr. Phipps, was not a probable reason for his changing his will, for at that time he had certainly been in possession of all the information upon the subject; and so far from evincing a determination or desire to change-his will in the interest of that friend, he appears to have visited him and his family just before his departure, when he was in ill health 4 and thereafter, the night before his departure, recalled the attention of his executor, Mr. Van Kleeck, to his instructions.

These circumstances afforded ample and apt opportunity to decedent to consider and determine upon the propriety of a change in his will, in the interest of his friend, especially as he was then contemplating the possibility of never returning.

It is quite apparent, therefore, that this motive for a change must be disregarded in the determination of this case, and thé motive founded either in his changed relation to the legatees under his former will, or his desiz’e to reward the sole beneticiaiy for her care and attezition to him during his last illness.

In respect to the alleged change in his relations and feelings towards the legatees, there seems to be no evidence warranting such change ; for it is entirely clear, that so far as any pretended neglect of the decedent on the part of Mr. Yan Kleeck, Mr. Richards, Mr. Leeds or Mrs. Yan Kleeck is concerned, such apparent neglect resulted from the statement given to them by Mr. or Mrs. Phipps, respecting the inzibiiity or unwdllingness of the decedent to see them, except in the case of Mr. C. H. Leeds, whom, it appeal’s, he manifested a disinclination to see in his last illness. This disinclination is in no v way accounted for, and is full of suspicion, when it is considered that he made him his .executor, and in the early part of the year 1875 communicated to him special instructions in respect to his will, and wjho testified to the continuance of his friendly relations down to the time of his visiting him at Mrs. Phipps’s house. Indeed, I have looked in vain for any explanation, in the testimony, of his' apparent change of interest in his relatives and former trusted friends, unless it is to be found in the overmastering impulse to reward Mrs. Phipps for her kindly services in his last illness with his entire effects, including the clothing of his mother, and his valued keepsakes.

So far as the occurrences between Mr. Taylor, decedent, and Mrs. Phipps, relating to the payment by Mr: Taylor, to decedent, of nearly $30,000, and his gift thereof to Mrs. Phipps are concerned, it is not necessary to determine, whether or not that was a valid gift, inter vivos, but only to consider its effect upon the' question of undue influence, imputed to the sole beneficiary under the will.

On the one side it is urged that this occurred some time after the execution of the will, when decedent was concededly in better mental condition than when the will was executed, and that the gift was a confirmation of the purpose of the testator, expressed in his will, to give her the entire estate ; while, on the other hand, it is claimed to afford confirmatory evidence of the purpose and active effort of Mrs. Phipps to secure the entire estate beyond all contingency.

The fact that she wrote a letter to Mr. Taylor, that she was present when the money was paid to Mr. Ingersoll, and that, notwithstanding the will gave all the estate to her, yet that it was deemed necessary to go-through the form of a personal gift and delivery-, without any formal reference to the fact of the will having bestowed it upon her, are claimed to establish an apprehension on her part, that the will might for some reason fail to operate.

The testimony upon the subject of this gift is somewhat contradictory, and the transaction suspicious.

[The Surrogate reviewed the evidence on the point, and. then proceeds.]

It is quite impossible to reconcile these different versions of that transaction, and it is left without satisfactory explanation.

It is proper to notice also that Mrs. Dodge, the nurse of decedent at Augusta, testifies that on several occasions when she returned to decedent’s room, Mrs. Phipps being in charge of the decedent, she found her speaking in a low and confidential tone to the decedent, which ceased immediately on the witness’ s entrance to the room ; and Mr. Walker, one of the attendants at Augusta, testified that he overheard Mrs. Phipps speak to decedent upon the subject of making a will “to him” (meaning possibly Mr. Phipps); that decedent said,- “ ¡No and that she said: “You will make it to me then,” and he answered, “ Yes.” It is proper, however, to say that Mrs. Phipps denies this positively, and yet it is a circumstance worthy of note in considering the question, as to the probable influence exercised upon decedent to procure the will in question.

Another circumstance which to my mind is very significant, is the treatment by decedent in his last illness of Mr. Leeds, his executor in his former will, and a relative. This seems entirely inexplicable except upon .one of two theories—-first, either that decedent was in such a mental condition that he was unconscious of what he was doing, or that his mind had been prejudiced against Mr. Leeds, by some person who had access to him during his last illness, and that for an unlawful purpose ; which, taken with the other evidence that Mrs. Phipps assumed to deny the friends of decedent access to him during his last SIness, and appears to have had considerable influence over him, as several of the witnesses testify, certainly tends to show that the decedent may not have been acting as a free agent in the execution of the will in question.

While the recommendation and procuring of Dr. Marcy, their physician, for the decedent, and Mr. Reed, their counsel, to draw the will, do not in anyway militate against the skill or integrity of these gentlemen, yet it is a circumstance to be noted on the inquiry, whether Mr. and Mrs. Phipps interfered with the decedent’s wishes in that respect. For it must be remembered that his trusted physician at Augusta, Dr. Steiner, recommended him to call on Dr. Hammond on his arrival at New York, but decedent was dissuaded therefrom by Mr. Phipps.

Having considered at large several of the alleged explanations of the decedent’s reversal of his testamentary purpose as expressed by his will of 1874, and reached the conclusion that none of them are satisfactory, unless found in the desire of the decedent to recognize and reward the services of Mrs.' Phipps in his last illness, it seems to me proper to consider whether that motive is sufficient to overcome all the proof and circumstances pointing, to the undue influence exercised upon the. testator by Mrs. Phipps.

It must be conceded that there, is no direct and positive evidence of such undue influence ;.'that it must be, if found at all, inferred from the circumstances of the case, and the helpless condition of the decedent, and his being surrounded by the influences of those who benefited by the will, and from the reversal of his former will, and such other inferences as are deducible from the facts already considered.

That decedent felt a deep sense of obligation to Mr. and Mrs. Phipps for their unwonted attention and kindness to him in his extremity, was certainly natural and praiseworthy, and if he had rewarded her by a gift of even 85,000, it would not have seriously shocked one’s sense of propriety or justice. But that he should have felt that it entitled her not only to his entire fortune, but the forgetfulness on his part of all interest in his former legatees, seems to me entirely unreasonable, and to be accounted for upon some other principle than that of personal gratitude. Indeed, setting aside all the other circumstances which suggest undue influence, can it be truly said that a helpless paralytic, of enfeebled mind and will, who conceives such an extravagant sense of his obligation for eight weeks of kind and attentive nursing as to be moved to bestow his whole fortune of $45,000 as a reward for such service, was acting under a free and intelligent purpose, at a time when he must-have been impressed with his utter dependence for every attention upon his sole legatee \

In considering this case, I have striven to give all due importance to the fact that decedent left no ■ near relatives, and that his sense of obligation to relatives so remete might well be weak and comparatively insignificant ; yet from the most careful consideration that I have been able to give to the evidence in this case, I have not been able to escape the conclusion that the instrument in question was not the free expression of decedent’s will. I am fully impressed with the duty of a judicial officer to respect and sustain a last will and testament whenever it shall appear that it was executed intelligently and freely, and with the danger of setting at nought the declared purpose of such a testator, on the application of an irreverent, or factious contestant; but I am equally persuaded that the success of such a policy must rest upon the general approbation and respect felt for the washes of a testator freely and rationally expressed.

The will offered should be refused probate, on the ground that it was executed under undue influence.

Ordered accordingly.