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In re FALABELLA'S WILL.

(Surrogate's Court, New York County. February 10, 1913.)

1. WILLS (§ 303*)-EXECUTION-SUBSCRIPTION BY TESTATOR-SUFFICIENCY OF EVIDENCE.

Where three unimpeached witnesses swore that they saw testatrix sign the will with her own hand, and the contestant, husband of deceased, who was not present at the execution of the will, simply stated that, in his opinion, the subscription was not that of testatrix, subscription of the paper propounded was sufficiently shown.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 711-723; Dec. Dig. § 303.*]

2. WILLS (§ 163*)—UNDUE INFLUENCE-BURDEN OF PROOF.

Undue influence is an affirmative assault on the validity of a will, and the burden of proof is on the contestant, and does not shift throughout a probate proceeding; and this rule applies to an original proceeding in the Surrogate's Court.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*]

3. EVIDENCE (§ 90*)—“BURDEN OF PROOF"-DEFINITION.

"Burden of proof," onus probandi, is an equivocal term, referring, primarily, to the obligation resting on a party who has the affirmative of an issue of fact to establish it by a preponderating weight of evidence, and, secondarily, to a duty to go forward with the evidence at a precise moment in a judicial proceeding.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 112; Dec. Dig. § 90.*

For other definitions, see Words and Phrases, vol. 1, pp. 904-907; vol. 8, p. 7593.]

4. WILLS (8 274*)-PROBATE-AVERMENTS OF PETITION.

The proponent in a proceeding for probate must aver, in the first instance, testator's capacity and freedom from restraint.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 628, 631; Dec. Dig. § 274.*]

5. WILLS (§ 163*)-VALIDITY-PRESUMPTIONS-FREEDOM FROM RESTRAINT. Freedom from restraint in the execution of a will cannot be presumed. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*]

6. WILLS (§ 248*)-PROBATE-JURISDICTION OF APPELLATE DIVISION.

The Appellate Division serves as the real ordinary, and is vested with co-ordinate and original power over contested probates.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 584, 585; Dec. Dig. § 248.*]

7. WILLS (§ 163*)-VALIDITY PRESUMPTIONS-FRAUD OR UNDUE INFLUENCE. There is no presumption of fraud or undue influence in a probate cause from mere relations of confidence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*]

In the matter of the probate of the will of Angelina Falabella, deceased. Probate decreed.

Antonio Ferme, of New York City, for proponent.

Goldsmith, Rosenthal, Mork & Baum, of New York City, for con

testant.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

FOWLER, S. Contested probate proceeding.

The usual objections-testamentary incapacity and undue influence -were interposed to the probate of the will of Angelina Falabella by the husband of the testatrix. Husband and wife lived apart at the time the will was executed. The will is in favor of the mother of testatrix. There were no children of the marriage.

[1] The allegation that the testatrix subscribed the will is contested, and the genuineness of her signature is challenged. But three respectable and unimpeached witnesses swear that they saw testatrix sign the will with her own hand. The husband, who was not present at the execution of the will, simply states that, in his opinion, the subscription to the will is not that of testatrix. No handwriting experts were called, and there was no other comparison of handwriting specimens conceded to be genuine. The husband was allowed to give his testimony without objection. Under this state of facts subscription of the paper propounded by testatrix is found. The other statutory requirements for the due execution of the will were established by the testimony of the subscribing witnesses.

[2, 3] As to the plea of undue influence, the burden of proof is on the contestant, and does not shift throughout a probate proceeding. Such is the statement of the Court of Appeals in a very late case, and it seems to complete a definitive doctrine of great importance in probate law. It may be expedient and proper, in view of this important decision of the Court of Appeals, for the surrogate to take this early occasion to make clear his appreciation of the gravity of such final determination on this important point, as this is the court of this state in which most contentious probates of importance are heard and determined in the first instance.

The burden of proof in contested probate proceedings is sometimes said "to rest ordinarily on proponent" throughout the cause. Matter of Kellum, 52 N. Y. 517; Rollwagen v. Rollwagen, 63 N. Y. at page 517; Matter of Will of Cottrell, 95 N. Y. 329, 336; per curiam, Dobie v. Armstrong, 160 N. Y. at page 590, 55 N. E. 302. But in other cases of equal authority it is stated that the burden of proof on a plea of undue influence, for example, is on contestants. If the burden then shifts from proponent, the burden of proof is not always on proponent. These two decisions are, on their face, types of adjudications of weight. I had hoped that I might give heed in this court of first instance to both doctrines by attributing the primary meaning of the term "onus probandi" to the first class of cases and the secondary sense of that ambiguous term to the second class of cases. "Burden of proof," onus probandi, is an equivocal term. It refers, primarily, to the obligation resting on a party who has the affirmative of an issue of fact to establish it by a preponderating weight of evidence, and, secondarily, to a duty to go forward with the evidence at a precise moment in a judicial proceeding. Thayer, Prelim. Treatise on Evid. 354, 364, 379; Doheny v. Lacy, 168 N. Y. 213, at page 220, 61 N. E. 255; Loder v. Whelpley, 111 N. Y. 239, at page 250, 18 N. E. 874; Baxter v. Abbott, 7 Gray (Mass.) 71, 83; Jones v. Gran. State Ins. Co., 90 Me. 40, 37 Atl. 326. If the different decisions on burden of

proof in will contests could be reconciled, it would bring the modern law of this state into line with the former probate law of New York and England (Barry v. Butlin, 1 Curt. 637; s. c., 2 Moo. P. C. 480; Fulton v. Andrews, 7 Ho. L. Cas. 448, 461; Tyrrell v. Painton, [1894] P. D. 157), as well as with that prevailing in the Commonwealth of Massachusetts (Crowninshield v. Crowninshield, 2 Gray [Mass.] 524); otherwise our law stands apart.

But a very plain intimation in the Matter of Will of Kindberg, 207 N. Y. 220, 100 N. E. 789, very lately decided by the Court of Appeals, makes it, I think, impossible to reconcile the adjudications. A late writer, in his useful compendium of the case law of evidence, well states that it is "a hopeless task to undertake to reconcile the decisions which relate to the burden of proof in respect to the probate of wills." Jones, Ev. § 189. Professor Thayer, in his most admirable of all modern treatises on the true bases of the law of evidence, points to the root of this difficulty. Thayer, Prelim. Dissertation on Ev. 354 et seq.; Thayer's Cases on Ev. 69.

In a proceeding to test the validity of the probate of a will, pursuant to section 2653a, Code of Civil Procedure, the statute regulates the burden of proof and the procedure. The statute prescribes that in that class of actions

"the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil."

It then proceeds to regulate the procedure on the trial of such actions. It has been generally supposed by the profession that the burden of proof in that class of actions rested on the contestant solely by virtue of the statute. Dobie v. Armstrong, 160 N. Y. 584, 590, 55 N. E. 302; Ivison v. Ivison, 80 App. Div. 599, 603, 80 N. Y. Supp. 1011; Mock v. Garson, 84 App. Div. 65, 67, 82 N. Y. Supp. 310; Heath v. Koch, 74 App. Div. 338, 77 N. Y. Supp. 513; Scott v. Barker, 129 App. Div. 241, 113 N. Y. Supp. 695.

The latest utterance of the Court of Appeals on burden of proof in probate matters was made on an appeal from a judgment entered on an affirmance of the verdict of a jury on issues sent to the Supreme Court for trial. Matter of Will of Kindberg (December 31, 1912), 207 N. Y. 220, 100 N. E. 789. It was there said:

"Undue influence is an affirmative assault on the validity of a will, and the burden of proof does not shift, but remains on the party who asserts its existence. Tyler v. Gardiner, 35 N. Y. 559; Cudney v. Cudney, 68 N. Y. 148; Matter of Will of Martin, 98 N. Y. 193, 196."

The serious question in my mind is whether the pronouncement of the Court of Appeals in the Matter of Will of Kindberg was intended to regulate the burden of proof in original proceeding to probate a will in the courts of the surrogates, or only on trials by jury. If it was intended to apply to probate proceedings, whenever a plea of undue influence is interposed in this court to a petition for probate, the burden of proof is on the party so asserting it. In this and other jurisdictions, as I shall attempt to show, it has been laid down that the burden of proof in probate proceedings is always on the proponent,

and that that burden does not shift throughout the trial. The burden. of taking up the evidence may shift, after factum of will has been established by proponent; but the burden of giving preponderating proof on the whole issue in a probate proceeding rests always on the proponent. Is the finally completed rule announced in the Matter of Kindberg intended to abrogate altogether this established principle of probate law? That is now the first question. Were it not for the decisions cited in the opinion of the Court of Appeals in Matter of Will of Kindberg, I should venture to think that the statement of that court had no reference to original probate proceedings; but Tyler v. Gardiner, 35 N. Y. 559, Cudney v. Cudney, 68 N. Y. 148, Matter of Will of Martin, 98 N. Y. 193, referred to in Matter of Kindberg, were all appeals from surrogates' decrees in proceedings for probate. Evidently they were not regarded as foreign to the decision in the Matter of Kindberg. It may be assumed, therefore, that the pronouncement of the Court of Appeals is intended to be controlling in original proceedings for probate in the courts of the surrogates whenever a plea of undue influence is interposed. If this is now the rule of this jurisdiction, we must follow it here in every instance. I so did practically in a late case. Matter of Klinzner, 71 Misc. Rep. 620, 638, 130 N. Y. Supp. 1059.

Before the decision in Matter of Will of Kindberg, I had, however, been somewhat inclined to think that when the statement was made in several cases of importance in this state, that the burden of proof rests, in a proceeding for probate, on him who asserts undue influence, it was meant to assert only that after factum of will is established the contestant asserting undue influence then has the onus of going forward with his proofs (Doheny v. Lacy, 168 N. Y. 213, 220, 61 N. E. 255), and not that the burden of proof, in its primary significance, did not always rest on the proponent of a will in the courts of the surrogates. Doubtless, after the contestant had completed his proofs, the proponent resumed and gave adminicular proofs in support of the probate. Hoyt v. Jackson, 2 Dem. Sur. 443, 446. But, then, onus probandi the whole case was again on proponent. Matter of Flansburgh, 82 Hun, 49, 50, 31 N. Y. Supp. 177; Howland v. Taylor, 53 N. Y. 627; Taylor's Will Case, 10 Abb. Prac. (N. S.) 300. The reason why I was induced to think that the burden of proof, in its primary significance, in a probate cause rested always on the proponent I shall proceed to state. These reasons were of three kinds: (1) Because statute and the state of the pleadings naturally placed the burden of proof on proponent. (2) Because the traditional practice in probate proceedings so placed it. (3) Because both reason and authority had sanctioned it.

The state of the pleadings in a proceeding for probate naturally placed the burden of proof, in its primary signification (or, in other words, the necessity of sustaining all the issues on the will by a preponderance of evidence), on a proponent. In order to entitle a proponent to a decree of probate, he must establish (1) due execution of a testamentary script, pursuant to the statute of wills; (2) testamentary capacity; (3) freedom from restraint. Now, a plea

of undue influence is a mere negation of an allegation of freedom from restraint. Dayton on Surrogate's Practice, 177. If we assume that it is the pleadings which always fix the burden of proof in the first instance, then, on the principle originally adopted by our courts from the Roman law, "Ei incumbit probatio qui dicit non qui negat," onus probandi rests always on the proponent in a proceeding for probate (Doheny v. Lacy, 168 N. Y. 213, 220, 61 N. E. 255), except in the exceptional instance of special pleas in bar, such as former judgment, when proponent is temporarily relieved of the burden.

[4, 5] That the proponent in a proceeding for probate must aver, in the first instance, testator's capacity and "freedom from restraint" has been long established in this court. Section 2623, Code Civil Procedure, formerly 2 R. S. § 14; 1 R. L. 365, § 6; Dayton, Surrogate's Practice, 177; Kingsley v. Blanchard, 66 Barb. 317, 322; Harper v. Harper, 1 Thomp. & C. 351, 355; Ramsdell v. Viele, 6 Dem. Sur. 244, 247, affirmed 117 N. Y. 636, 22 N. E. 1130; Matter of Schreiber, 112 App. Div. 495, 98 N. Y. Supp. 483, affirmed 185 N. Y. 610, 78 N. E. 1111; Matter of Goodwin, 95 App. Div. 183, 88 N. Y. Supp. 734. A plea of undue influence is the mere negation of freedom from restraint already alleged by proponent. A person unduly influenced is not free from restraint. Placing the burden of proof (in the sense of an obligation to establish undue influence) on a contestant tends to place contrary burdens on the opposing parties to the same issue. We thus have the burden of proving freedom of restraint placed on proponent and the burden of proving the negative on contestant. In this state of the law it would be but a step to presume freedom from restraint, and thus have the entire burden of proof in contested probates placed on contestant. But this is not yet the rule, and it cannot be under the present statute of wills.

That the common or traditional law regulating the proceedings in the courts of the surrogates, in the absence of statutes, placed the burden of proof or weight of evidence on all the issues in a proceeding for probate on the proponent, there can be no doubt. If any change has been made in this state in the common law, it is by reason of later adjudications of authority in this state. The burden of proving undue influence in probate was carefully considered in a leading case in England by the Privy Council on appeal (Barry v. Butlin, 1 Curt. 637; s. c., 2 Moo. P. C. 480); and it was held that onus probandi in every case lies upon the party who propounds a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. Fulton v. Andrews, 7 Ho. L. Cas. 448, 461. This statement was expressly approved in this state in Crispell v. Dubois, 4 Barb. 393, 397, and again by that very distinguished surrogate, Mr. Rollins, in Hoyt v. Jackson, 2 Dem. Sur. 443, 446, and his judgment was afterwards affirmed by the Court of Appeals. 112 N. Y. 493, 20 N. E. 402. This point has, in substance, I think, been often since adjudicated, both here and elsewhere. Thayer's Cas. Ev. 82,

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