to rob him of his right to the costs of the tribunal to which he was compelled to resort by his opponent, and we are satisfied that the order of the County Court was right.

The order appealed from should be affirmed, with costs. All concur, except KELLOGG, J., who dissents.

(87 Misc. Rep. 79)

In re ELDER'S ESTATE.

(Surrogate's Court, Bronx County. September, 1914.)

EXECUTORS AND ADMINISTRATORS (§ 17*)-RIGHT TO LETTERS OF ADMINISTRATION-INTEREST OF APPLICANT.

Under Code Civ. Proc. § 2588, as amended in 1914, limiting the right to administer to persons interested, a sister of decedent, who, by reason of the survival of infant children, was not entitled to share in decedent's personal estate, was not entitled to letters of administration.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 43-59; Dec. Dig. § 17.*]

Petition for letters of administration on the estate of William C. Elder, deceased. Decreed according to opinion.

J. Chester Johnson, of Brooklyn, for petitioner.

SCHULZ, S. The children of the decedent, under the circumstances set forth in the petition, would be entitled to letters of administration if they were of full age. Where all of the persons entitled to take the personal estate are infants, as in this case, letters may be granted to the general guardian. Code Civ. Proc. § 2588. Recently in Matter of D'Adamo, 212 N. Y. 214, 106 N. E. 81, the Court of Appeals held that the case of Lathrop v. Smith, 35 Barb. 64, and 24 N. Y. 417, established the proper construction of section 2660 of the Code (as it was before amendments hereinafter referred to), and is applicable to that section of the Code as it was to the Revised Statutes, but stated that the result of the amendments to the Code contained in chapter 443 of the Laws of 1914, which took effect on September 1, 1914, would be to establish a new rule hereafter.

This proceeding, having been brought subsequently to September 1, 1914, is governed by the provisions of section 2588 of the Code, and, as the construction established by Lathrop v. Smith is not applicable to the new rule, I am of the opinion that the petitioner, who is the sister of the decedent, and not entitled to take or share in the personal property of the decedent, cannot have letters granted to her. The language of the section, I think, is clearly to the effect that the right to administer is given only to persons interested, and such was the intention of the commission to revise the practice and procedure in Surrogates' Courts, whose efforts resulted in the amendment of chapter 18 of the Code, as will appear from the note to the above section in their report submitted to the Legislature and dated February 9, 1914. Letters must therefore be granted to the guardian of one or both of the infants, and if there be no guardian, and none be appointed who makes application. then letters should issue to the public administrator. Decreed accordingly.

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

(87 Misc. Rep. 164)

In re ROBINSON'S WILL.

(Surrogate's Court, Chenango County. October, 1914.)

1. WILLS ($ 55*)-TESTAMENTARY CAPACITY-SUFFICIENCY OF EVIDENCE. Evidence on the probate of a will held to show the existence of testamentary capacity to execute the will.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.*]

2. WILLS (§ 43*)—TESTAMENTARY CAPACITY-DRUG HABIT.

A testatrix does not lack testamentary capacity merely by reason of her habitual use of drugs, where she is lucid and sober when her will is made.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 88; Dec. Dig. § 43.*] 3 EVIDENCE (§ 570*)-EXPERT TESTIMONY-PROBATIVE EFFECT.

Little weight will be given to a physician's answer to a hypothetical question which assumes facts not found by the court.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. § 570.*1

4. WILLS (§ 215*)-PROBATE-MATTERS CONSIDERED.

On the probate of a will, objected to on the ground of undue influence and testamentary incapacity, the surrogate will not decide whether testatrix made the most equitable will that she could have made, or made the will which the surrogate would have made if in the same position, but whether she was competent to make a will and not subject to undue influence.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 522, 523; Dec. Dig. § 215.*]

Proceedings on the probate of the will of Emily A. Robinson, deceased. Decree for proponents.

Duane L. Atkyns and E. H. O'Connor, both of Sherburne, for proponent.

Ward N. Truesdell, of Sherburne, for special guardian.

HILL, S. Emily A. Robinson died at the town of Sherburne on September 9, 1913. She was about 66 years of age. For many years unquestionably the decedent had been addicted to the use of morphine. The husband of the decedent died several years prior to her death, and the only son of the decedent, one James Robinson, also died prior to her decease. Her deceased son, James Robinson, left him surviving a widow, Edith Robinson, and the grandson, Robert Robinson, whose special guardian herein contests the probate of this will.

The will in question was drawn on the afternoon prior to the death of Mrs. Robinson at night. The testimony is conflicting as to whether the will was drawn between 3 and 4 o'clock in the afternoon, or as late as 6 o'clock in the afternoon. The decedent went into a state of coma prior to 7:30 o'clock in the evening, or, if it might not properly be called a state of coma, she was entirely irrational. Between 5 and 6 o'clock in the afternoon a disinterested witness testifies that decedent was able to go from the bed to a chair in her room unaided and unassisted and seemed to be rational and in her right mind. I am left to surmise to some extent just what was the immediate cause of death, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

as the above-mentioned witness, Ellen Wildman, disinterested and reputable, testifies that between 5 and 5:30 o'clock on the afternoon of September 8th she saw Mrs. Robinson sitting in a chair in her bedroom, and saw her go from the chair to the bed, and Mrs. Robinson talked with her about doing business, and decedent thought she would be all right in the morning. At 6:30 a witness, Mrs. Inman, called upon the decedent and found her in a stupor, with her eyes half shut, talking in an incoherent manner. The attending physician was not called, and, as I say, I am left to conjecture as to the immediate cause of death. However, I am convinced, from scraps of testimony at various places, that in the interim between the visit of Mrs. Wildman and the visit of Mrs. Inman the decedent took an overdose of morphine and from its effects died.

[1] The probate of the will is objected to upon the ground of undue influence and testamentary incapacity. Mr. Atkyns, the attorney who drew the will, is very positive, and offers some corroborative testimony to show, that the will was drawn in the middle of the afternoon of September 8th. He testifies that the decedent was in her usual mental condition, except, of course, that she was ill, and the other witness, Mrs. Tracy, who was interested as the daughter of the chief beneficiary, testifies likewise.

The will in question bequeaths unto the cemetery wherein her people are buried the sum of $50, and bequeaths certain keepsakes to other parties, including the grandson, Robert C. Robinson; the articles bequeathed to her grandson being an Elgin open-face watch which belonged to his father, James Robinson, two large landscape oil paintings, all pictures of James C. Robinson, all silver teaspoons, and all books. The remainder, which amounted to the sum of $800, was bequeathed to a stranger, Mrs. Addie Chapin.

The decedent had for many years worked at various places, including some places several miles away from Sherburne, but apparently she had always regarded that vicinity her home. She was the recipient of a pension, which, with the money she earned, supported her. She had received certain life insurance upon the life of her deceased son, James C. Robinson. In the summer of 1913 she seemed to have been engaged in endeavoring to find a home where she might spend her declining years. She contemplated making application to the Masonic Home, and to that end had certain conversations with an official of the Masonic order at Sherburne, but decided not to go there. She settled for a time in the town of Smyrna, but finally, some weeks before her death, she had arranged with the Chapin family, living midway between Sherburne and Smyrna, to stay with them as long as she might live.

The testimony of certain witnesses shows that she contemplated and made plans to purchase the property where the Chapins resided, they being tenants. She talked this over with several persons, including the owner of the property. The attorney, Mr. Atkyns, and she had some talk about it with one of the witnesses produced by the contestant. Mrs. Wildman testifies that decedent said it was her intention to pay in $500, the first payment of the purchase price of the place where the Chapins lived, she to have the privilege of remaining with them

during her lifetime, and at her death the Chapins should have everything she left.

[2] One of the medical witnesses on cross-examination testified that he had been acquainted with the decedent many years, that some time about July 1, 1913, he met her in the village of Sherburne, and in a conversation told her that he had during the past winter in California met a brother of decedent's husband, and the decedent inquired rationally regarding this party and concerning another brother of her husband. This witness testifies that he had inquired of decedent concerning her grandson, and she talked about him rationally and sensibly. On or about the Wednesday before decedent died she had a talk about business with one of the objector's witnesses, Mrs. Nellie Potter, which conversation as detailed impressed me as rational. There have been a great number of witnesses sworn on behalf of the objector, who testified to various peculiar and irrational acts. From the description of these acts, I am led to believe that they were solely the result of a drug which she took, and it is well known that at times the taker of morphine acts in a peculiar and irrational manner. I do not understand that a person addicted to the use of drugs or of liquor, if lucid and sober when a will is made, lacks testamentary ability by reason of the habit. If the decedent had been as irresponsible and as insane as some of the interested witnesses testified, I marvel that they should have permitted her to journey about to Utica, Sherburne, and Smyrna unattended and alone. I should have thought, rather, that they who were interested in her welfare would have had her declared incompetent and watched over and cared for. Their failure to do this leads me to view their testimony as highly colored by their interest in the little grandson, Robert Robinson, or that the acts mentioned were done at the times she was under the influence of the drug.

[3] I do not give great weight to the answer by the physicians to the hypothetical question, for the reason that I do not find as facts all that was assumed in that question. The question assumes a condition between July 13th and August 4th, while decedent was at Mrs. Colwell's, which I do not find existed. The question permitted the doctors to assume that all day prior to 6:30 or 7:30 in the evening on September 8, 1913, the decedent did not talk, which did not state the condition as testified to have existed on that afternoon, and in various other ways the question varies from the state of facts which I find. Had I found the facts as assumed in the question, I would have given weight to the answer of the doctors; but as they answered upon a hypothesis assumed, which I do not find existed, I cannot give it weight. Further, one of the doctors established a rule of law when he said: "Making a will requires a keener mental condition than ordinary business." This rule of law is somewhat at variance, as I understand it, with the holdings in this state.

[4] It is not for me to decide whether Mrs. Robinson made the most equitable will which she could have made, or whether she made. the same will which I think I would have made if I had been in her position; but it is for me to decide whether at the time she made the will in question she was of competent capacity to make a will, and not subject to undue influence. This is not exactly the condition of a

woman in the last moments of her life bequeathing her property to strangers with whom she was temporarily sojourning. The evidence shows that the decedent contemplated and expected to live her life with the Chapins. It shows that several weeks prior to the time when the will was made she had agreed to advance certain money to the Chapins in return for their care of her, and, while it would seem unnatural for decedent to substantially disinherit her grandson, of whom she was very fond, yet it seems that a woman with the little property that she had, and afflicted with the unpleasant habit which she had, confronted with the necessity of living out her life as comfortably as possible, could have made such a will without undue influence, and having in mind the natural objects of her bounty and the nature and extent of her property.

There is no direct proof of undue influence, and as I cannot believe from the testimony of the witnesses that at 3 or 6 o'clock, whenever the will was made, the woman was in a state of coma, or unconscious, and as I do believe that she was in about the condition which she had been in for many months,. I decide that within the authorities laid down she was competent to prepare her last will and testament.

The amount of allowance to the special guardian and to proponent can be brought up on consent before me at any time. Decreed accordingly.

(87 Misc. Rep. 476)

In re HERMANN'S WILL.

(Surrogate's Court, New York County. November 23, 1914.)

1. WILLS (§ 163*)-APPLICATION FOR PROBATE-UNDUE INFLUENCE-BURDEN OF PROOF.

The burden of proving undue influence and conspiracy, alleged as grounds for denial of probate of a will, is on the contestants, which burden does not shift.

[Ed. Note.

§ 163.*]

For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig.

2. WILLS (§ 155*)-PROBATE "UNDUE INFLUENCE."

Undue influence, when alleged as a ground for denial of probate of a will, while involving elements of fraud and duress, is nevertheless a special plea distinct from either; and while it imports moral coercion, distinct from duress, which is a physical wrong and primarily a matter of legal cognizance, undue influence in respect to testamentary acts postulates freedom of the will, and is established by any set of circumstances showing any coercion which subverts freedom of action on the part of the testator.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 375-381; Dec. Dig. § 155.*

For other definitions, see Words and Phrases, First and Second Series, Undue Influence.]

3. WILLS (§ 155*)-EXECUTION-"COERCED."

The word "coerced," as used in testamentary law, involving the execu tion of a will, means any pressure by which testator's action is restrained against his free will in the execution of his testament.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 375-381; Dec. Dig. § 155.*

For other definitions, see Words and Phrases, First and Second Series, Coerce.]

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