"It is shown to my satisfaction that the testatrix, at the time she executed this writing, was capable of recollecting the property she was about to dispose of, understanding the manner of distributing it therein set forth, the objects of her bounty, and the nature of the business in which she was engaged. If so, she had the requisite testamentary capacity."

The paper was in fact executed by her as her last will and testament, in the presence of two witnesses present at her house at the same time. The attesting clause does not say that they signed in the presence of the testatrix. One of these subscribing witnesses is dead; the other is living, but does not remember the circumstances. He is certain as to his signature, and that of the other witness is proved by his son. It is shown by the testimony of the other two persons who were present at the signing of the paper that they were all together in the diningroom when she signed and requested them to sign as witnesses to her will. This completes the attestation. It also appears that the will was read to her before signing. She took the will after execution, herself, up stairs, put it in a box with her other papers in a drawer of her room where she slept, and it remained in her possession until her death, about five years after its date. Of the fact of its due execution, and her capacity to make it, there seems to me to be satisfactory proof offered.

The more serious question in the case is whether Ruth W. Buzby executed this writing, purporting to be her last will and testament, through the undue influence of George G. Waddington, the proponent. The influence that will vitiate a will must be such as in some degree destroys the free agency of the testator, and constrains him to do what is against his will, but what he is unable to refuse, or too weak to resist. 1 Jarm. Wills, 37; Lynch v. Clements, 24 N. J. Eq. 431; Moore v. Blauvelt, 15 N. J. Eq. 367.

It is claimed that this appears in several particulars. The proponent wrote the will, in which he was made sole executor, and his son and wife were favored legatees. In Rusling v. Rusling, 35 N. J. Eq. 120, 36 N. J. Eq. 603, it was said that the fact that the will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not, of itself, invalidate the will. The same rule would apply where the lega

eies were given, not to himself, but to those who stand in such near relationship to him as a son and wife. We must therefore look for other circumstances. Each case must be judged by its own circumstances, and no general rule can be made applicable to all cases. The testatrix had three children,Mary Buzby, Bulah Gaskill, and Nathan Buzby. The son had died some years before her death, leaving a son of the same name, who is the caveator against the probate of this will. Mary Buzby lived with her mother until she died, on March 29, 1882. She cared for her in their home, aided her in the management of her property, but there is no evidence that she exercised undue influence over her. Her entire property was the sum of $5,200 invested in bonds and mortgages, and some household furniture of no great value. Some years before her death she made a will by which she bequeathed $1,200 to Beulah Gaskill, and the residue to Mary Buzby. That will was drawn by Aaron Fogg, a neighbor. On the evening before Mary died, a codicil was written by Aaron Fogg to this will. He went to the testatrix's house, at the request of the proponent, and it was there executed by Ruth W. Buzby and witnessed by him and his daughter, who went with him for that purpose. The exact form of the codicil is not given, but it was for the benefit of Mary B. Waddington, the proponent's wife, who is the daughter of Beulah Gaskill, and granddaughter of Ruth W. Buzby. She was taken by the testatrix when an infant, named after her daughter Mary, brought up by them with care and affection, and remained with them until her marriage. By the will in controversy $1,500 is given to Beulah Gaskill, and some furniture; $100 to Ann B. Gaskill, and some silver-ware; $100 to Isabella P. Gaskill, and some silver-ware; $600 to Asher B. Waddington, her great-grandson; $600 to Martha Hancock, in lieu of any charge for services or otherwise she might make against her estate; and the residue to Mary B. Waddington, her granddaughter. Her reason for giving no legacy to her grandson Nathan W. Buzby, the caveator, is stated in her will in these words: "My grandson Nathan W. Buzby heired a legacy for one thousand dollars by the will of his grandfather, Asher Buzby. By the failure of my co-executor, George W. Ward, I have been compelled to pay the greater part of said

legacy out of my own resources, and this is the reason my said grandson Nathan W. Buzby is not mentioned as a legatee in this instrument." This payment was demanded of her by her grandson when it was said that she had but $10 left in the house for their present support; and there is evidence that, although she was patient at the time, and afterwards treated him with kindness and affection, she was displeased with his demand for the money, and his extravagance in spending it after he had received it.

Beulah Gaskill went to live with her mother after Mary's death, and remained with her until her death, with the promise that she would be provided for. She also received $1,500 by the will of her sister Mary. From this disposition of the property it will appear that all, excepting $600 given to Martha Hancock for services in the family from the time she was a child, was bequeathed to Beulah Gaskill and her children; Mary B. Waddington and her son, Asher, namesake of his grandfather, receiving the greater portion of the estate. The exclusion of Nathan W. Buzby was in the former will drawn by Aaron Fogg, with which Waddington had no connection, and Beulah Gaskill's individual portion was largely increased after the death of her sister, Mary, by her will and by the terms of this will, though in these proceedings she is hostile to the proponent. These dispositions appear more like the natural operation of

the mind and affection of the testatrix than results of the fraudulent contrivance or undue influence of Waddington, who wrote this will. His conduct, his character, and relationship to her do not warrant such charges against him without more direct and certain evidence. Until about the time of Mary's death it does not appear that he took any interest in her business. He lived at Elsinboro, two and a half miles from the testatrix's home in Salem. After Mary's death, he attended to her money matters, collected her interest, and deposited it for her, advised the investment of her money when the security was changed, and with her consent reinvested it for the best rate of interest she could obtain. He was the husband of her granddaughter, and apparently the nearest connection with whom she could advise, and on whose judgment she could rely, as the infirmities of age increased. While it would have been more

delicate and prudent for him, under the circumstances, to secure the services of a stranger to prepare a will for the testatrix, yet, if she had sufficient capacity to make it, and this is the voluntary expression of her wishes in disposing of her property, his mistake or even officiousness in tendering his services should not be allowed to defeat her purpose, long entertained and expressed in a former will, to exclude the caveator from any portion in her property. The decree should be reversed, and the will admitted to probate.

Under the peculiar circumstances of this case the caveator will be allowed $250 in lieu of costs, expenses, and allowances in all courts; and the executor will be given his costs and expenses out of the estate.

Decree reversed.

KNAPP and PATERSON, JJ., for affirmance. The CHIEF JUSTICE, DEPUE, DIXON, GARRISON, SCUDDER, VAN SYCKEL, BROWN, CLEMENT, COLE, and MCGREGOR, for reversal.

Kinds of Mental Incapacity.*

HATHORN ET AL. v. KING.

8 Mass. 371. 1811.

Appeal from decree allowing the last will of Mary Norris, deceased. Among the reasons of appeal, one was, that the deceased was not of sane mind at the time of executing the will, and on this an issue was formed to the country.

On trial it appeared that the scrivener was called in at 11 o'clock in the morning on the 21st of March, and received from testatrix directions as to preparing her will. She was then very ill, and continued sinking until 6 o'clock in the evening, when she executed the will, and at a quarter-past 8 o'clock the same evening expired. The reporter states the instructions of the court as follows:

"After the examination was finished the evidence was

* See Sec. 946 et seq., Vol. 7, Cyclopedia of Law.

minutely summed up to the jury by SEDGWICK, J., and the jury were instructed by him (SEWELL and PARKER, justices, expressly concurring), that if they should be of opinion that the testatrix, at the time of dictating the will, had sufficient discretion for that purpose, and that, at the time of executing the will, she was able to recollect the particulars which she had so dictated, they might find their verdict that she was of sound and disposing mind and memory at the time of executing the will. And they found accordingly; and the will was proved, approved, and allowed by the court."

COLLINS v. TOWNLEY AND JOHNSON.

21 N. J. Eq. 353. 1871.

The Orphans' Court admitted to probate the will of Sarah Collins, deceased.

Appeal.

THE ORDINARY. The testatrix was ninety-eight years of age at the time she made the will in question. Upon an examination of the evidence this appears to be the only ground for filing a caveat against the probate of her will. No unsoundness or imbecility of mind is shown of a kind that approaches to defect of testamentary capacity. Nor is there any proof of any fraud, circumvention, or undue influence in procuring the will. There is no ground to sustain the appeal against the admission of the will to probate.

The caveator is a son of testatrix; he resided not far from his mother, and knew her situation and capacity. More than one unsuccessful attempt to procure an inquisition of lunacy against her in the last years of her life had been made and failed. Of all this he had full knowledge. The will gave the bulk of the property of testatrix to one child, and very little to her other children; yet this child was a daughter, with whom she had lived for many years, and who had taken care of her before and after she acquired her property upon the death of her son Hugh.

There may exist sufficient reason for examining into the valid