proof of the truth of the fact stated, for that would be hearsay. Smith v. Keller, 205 N. Y. 39, 98 N. E. 214; Marx v. McGlynn, 88 N. Y. 357, 374; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71. They are admissible for the purpose of proving the condition of testator's mind. They are entitled to no weight as proof of undue influence. Marx v. McGlynn, 88 N. Y. at page 374; Matter of Woodward, 167 N. Y. 28, 60 Ñ. E. 233. While not competent to prove acts of others amounting to undue influence, such declarations are, however, competent, as I have before stated, to show the operation such acts had on the mind of a testator. Cudney v. Cudney, 68 N. Y. 148.

We come now to the consideration of the actual proofs on the issue of undue influence, without the admissions and declarations of Mrs. Noll and Mrs. Stein. It is not enough to show an opportunity to commit the offense charged. The offense itself must be made out by relevant or direct evidence. I think it is so made out. It is an extraordinary circumstance, and one established, that the comparative stranger to testatrix, Mrs. Noll, had much to do in the creation of the paper propounded. What is still more extraordinary, and established, is that she is named as a legatee in the same paper for a large amount. How was this brought about? These are circumstances which require more justification than the record affords, in view of other circumstances established. Mrs. Noll was not employed about Mrs. Hermann's dwelling house; she had no labor to perform there, and no business in the dwelling, apparently, other than the new and old wills of Mrs. Magdalena Hermann; at least, this was her main business. The old servant of Mrs. Hermann tried to eject Mrs. Noll as an unworthy intruder. What an extraordinary testamentary situation these bare facts disclose, for it certainly is extraordinary that an entire stranger to the aged testatrix should be allowed to meddle at all with the last will and testament of the alleged testatrix. Mrs. Hermann, it will be remembered, had been testate before she knew Mrs. Noll, and there is evidence that her prior will was long satisfactory to herself. The testimonial evidence of Barbara Hecht, Mrs. Stein herself, and Mrs. Amelia Hermann discloses how it came about that testatrix changed her will and attempted to make a new will. Testatrix became prejudiced against Quintin and Leis by reason of the acts and conduct of Mrs. Noll and Mrs. Stein. The contents of the old will in their favor were, for this purpose, misrepresented to testatrix. New sheets appeared in the old will, certainly not inserted by Leis and Quintin, for the prior wili was not in their custody. Mrs. Hermann believed Quintin or Leis, or both, so arranged the old will. The belief that Leis and Quintin took her whole estate under the old will was a material inducement to Mrs. Hermann to execute a new will. Mrs. Stein and Mrs. Amelia Hermann so stated on the stand.

[18] If the old servant Barbara Hecht is to be believed, and she is not adequately contradicted in this, nor is she discredited as a witness, additional or extra sheets were inserted in the old will to carry out this scheme, and Mrs. Hermann was induced to believe that this was done by her prior legatees, Leis and Quintin. The effect which the misrepresentations had on the aged testatrix are competently proved by Mrs. Hermann's own declarations. Cudney v. Cudney, 68 N. Y.

at page 152. They establish that testatrix was induced to believe that by her prior will Quintin and Leis took her whole estate, which was not the fact. Mrs. Stein herself testified as well as Mrs. Amelia Hermann, that Mrs. Magdalena Hermann so believed. There is no doubt from the evidence that Mrs. Hermann's mind was thus unfairly prejudiced, in and about her act of will, against Mr. Leis and Mr. Quintin, her prior legatees, by misstatements of fact made by those charged with the exercise of undue influence. This, under the decision in the case of Budlong's Will, 126 N. Y. 423, 27 N. E. 945, is sufficient proof in itself of undue influence. The mind of testatrix was coerced by misrepresentations. I have brought my ruling within the decision in Matter of Will of Kindberg, 207 N. Y. 221, 100 N. E. 789, which I followed in Matter of Will of Falabella, 139 N. Y. Supp. 1003, placing the burden of proof on those alleging a plea of undue influence. The contestants have here sustained the burden of proof on the issue of undue influence.

In this particular case any evidence of an imposition upon the testatrix in respect of her act of will, if uncontradicted, ought to be sufficient proof of undue influence, as the aged testatrix is not proven to have had the benefit of disinterested and respectable legal assistance in the act of will, nor did she have the safeguards about her of circumspect and entirely neutral attesting witnesses. Two of the attesting witnesses were procured by Mrs. Noll and Mrs. Stein. One of them was instrumental in bringing about a particular legacy. He thus made himself an actor, not a witness.

[19] I could, I think, refuse probate according to probate law on the additional ground that the proponents have not sustained the burden resting on them to show satisfactorily that the instrument propounded was the last will and testament of Mrs. Hermann. In Rollwagen v. Rollwagen, 63 N. Y. at page 517, it was said on the plea of undue influence that:

"A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and contains the will of the testator, probate must be refused."

I cannot, for the reasons stated by me in Re Tod, 85 Misc. Rep. · 298, 147 N. Y. Supp. 161, 164, 165, think that this judgment was intended to be overruled by Matter of Will of Kindberg, 207 N. Y. 221, 100 N. E. 789, although if the burden of proof of undue influence is on a contestant, as said in the Kindberg Case, it cannot at the same moment be on proponent, as said in the Rollwagen Case. The fact is that in probate cases there is a great discrepancy in many of the decisions on the subject of burden of proof, as I attempted to show in my judgment in Re Gedney's Will, 142 N. Y. Supp. 157. So much so is this the fact that in Indiana I observe, after great fluctuations, they have gone back to the old established doctrine of probate law, that the final burden of giving preponderating proof on most issues in a probate case rests on the proponent of the will. Herring v. Watson (Ind. Sup.) 105 N. E. 900; McReynolds v. Smith, 172 Ind. 336, 86 N. E. 1009.

I cannot believe that the recent ruling on the burden of proof in probate cases was intended in any event to disturb the doctrine of Howland v. Taylor, 53 N. Y. 628, and Rollwagen v. Rollwagen, 63 N. Y. at page 517, that before a will is admitted to probate the surrogate must be satisfied that it is the will of the testator. I referred to this point in Re Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. page 521. But as this particular point is not now necessarily here, and the judgment need not rest on it, I will not discuss it at large.

For the other reasons already stated by me, probate of the paper propounded is refused. Settle decree accordingly.

(87 Misc. Rep. 170)

In re SPOONER'S WILL.

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

JURY (§ 19*)-POWER TO GRANT JURY TRIAL-PROBATE PROCEEDING-SurroGATE'S COUrt.

Under Code Civ. Proc. § 2771, as amended by Laws 1914, c. 443, providing that any "pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act," the surrogate has no power, in a probate proceeding pending prior to September 1, 1914, when such act took effect, to grant an application for a jury trial of controverted issues of fact.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 104-133; Dec. Dig. § 19.*]

Proceedings on probate of the will of Martha Spooner, deceased. Application for jury trial denied.

George B. Glass, for proponent.

William C. Spooner, for contestants.

SCHULZ, S. A careful consideration of this matter leads me to the conclusion that a trial by jury of the controverted questions of fact herein cannot be granted. The proceeding was brought prior to September 1st, and thus comes directly under the provisions of section 2771 of the Code, as amended and revised by chapter 443 of the Laws of 1914, which, so far as material, are as follows:

"Nothing in this chapter shall repeal nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect, and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act."

Under the established practice at the time when this proceeding was brought, the surrogate had no power to try controverted questions of fact with a jury, and hence, so far as this proceeding is concerned, it would seem that he has no power to direct such a trial.

Counsel urges that inasmuch as section 2653a of the Code has been repealed by the law above referred to, which took effect September 1, 1914, he may have lost his right to a jury trial under that section in the Supreme Court because he had not brought his action prior to said date. In other words, that if the surrogate cannot give him a

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

jury trial in the Surrogate's Court because he brought his proceeding. in the Surrogate's Court before September 1st, and the Supreme Court cannot give him a trial in that court because he did not begin his action in that court prior to September 1st, he would in fact be deprived of a trial of the issues before a jury. I cannot, of course, on this application, pass upon the applicant's right to a trial under section 2653a in the Supreme Court. That is a matter which must be decided by the Supreme Court itself, but whether or not such a right existed could not affect the power of the surrogate to grant a jury trial. That power must be found in the statute. The statute to me seems clear that with reference to a proceeding pending before September 1st the surrogate has no such power, and I must therefore deny the application for a jury trial herein.

Decreed accordingly.

(Surrogate's Court, New York County. November 30, 1914.)

1. WILLS (§ 55*)-TESTAMENTARY CAPACITY-SUFFICIENCY OF EVIDENCE. Evidence in a will contest held to show that testatrix, though almost in articulo mortis from cancer, possessed testamentary capacity at the time of the execution of her will.

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

2. WILLS (§ 52*)-TESTAMENTARY CAPACITY-BURDEN of Proof.

Where a will was contested on the ground of testamentary incapacity, the burden was on the proponents to prove that testatrix was competent to make her will at the time of its execution.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.*]

3 WILLS (§ 55*)—DEATHBED WILL-TESTAMENTARY INCAPACITY-QUANTUM OF PROOF.

While a deathbed will is subjected to closer scrutiny than others, proofs of physical weakness, followed by a will made near death, are alone insufficient to establish testamentary incapacity.

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

4. WILLS (8 50*)-"TESTAMENTARY CAPACITY"-REMEMBERING RELATIVES.

The rule that it is essential to testamentary capacity that testatrix comprehend her relations to the persons who might be the objects of her bounty does not require that she remember all the distant relatives, who might take a portion of her property if she were to die intestate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 96-100; Dec. Dig. § 50.*

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

5. WILLS (§ 289*)-PROBATE-SUBSCRIPTION-Burden of Proof.

Under the express provisions of Decedent Estate Law (Consol. Laws, c. 13) § 22, the burden was on proponents to show in the first instance that a will offered for probate was subscribed by testatrix or by another at her request.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 653-661; Dec. Dig. § 289.*]

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

6. WILLS (§ 111*)-SUBSCRIPTION-"DIRECTION."

Where it is suggested in testatrix's presence that her hand be guided by one of the attesting witnesses in the writing of her signature, and testatrix gives her tacit consent to such assistance, this constitutes a sufficient "direction," within Decedent Estate Law, § 22, providing that the subscription to a will shall be by testatrix, or by another who signs her name by her direction.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 267-275; Dec. Dig. § 111.*

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

7. WILLS (§ 111*) -"SUBSCRIPTION."

That testatrix's hand, with her tacit consent, is guided by a subscribing witness in the making of her signature, does not prevent the "subscription" from being hers, within Decedent Estate Law, § 22, providing that one of the two kinds of authorized subscriptions shall be a subscription by testator.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 267-275; Dec. Dig. § 111.*

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

8. WILLS (§ 163*)-CONTEST-UNDUE INFLUENCE-BURDEN OF PROOF.

Where a will is contested on the ground of undue influence, the burden is on the contestants to establish their contention.

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

9. WILLS (§ 166*)-CONTEST-UNDUE INFLUENCE-QUANTUM OF PROof.

Where a will is contested on the ground of undue influence by innocent agents deriving no benefit from their acts, the proof to establish undue influence must be of a high order.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]

10. WILLS (§ 166*)-CONTEST-UNDUE INFLUENCE-SUFFICIENCY OF EVIDENCE. Evidence in a will contest held insufficient to show that the execution of the will was procured by undue influence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]

11. WILLS (§ 155*)-"UNDUE INFLUENCE"-"URGENCY."

"Urgency" to make a will is different from coercion to make a will in a particular manner, which is "undue influence."

[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.]

12. WILLS (§ 288*)-CONSTRUCTION-INTENTION-PRESUMPTION.

A will is presumed to express the testatrix's real intention.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 651, 652, B62, 664; Dec. Dig. § 288.*]

In the matter of the probate of the will of Sarah A. Knight. Decree for proponents.

Harold Swain, of New York City (Edward S. Clinch and Robert W. Cromley, both of New York City, of counsel), for proponents.

Osborne, Lamb & Garvan, of New York City (James W. Osborne

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