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Kinne o. Johnson.

tire absence of mind, or an insane mind, then in this case there is not a particle of evidence that would warrant a finding that the testatrix was of unsound mind, in this sense, at the time of making the will, or at any other time in her life. The evidence does show that her powers of mind failed with her body, as is the case with most old persons; but the whole tenor of the testimony from the witnesses most intimate with her, shows that she retained her memory, intelligence and ordinary powers of mind quite remarkably for so old a person, till her death.

The testatrix was 83 years old when she made the will. She went, of her own accord, to the office of the draftsman of the will, Judge Richardson, where she stayed, as he states, about two hours-informed him that she wanted him to draw her will, and dictated the terms thereof, of which Judge Richardson then made a memorandum, which was produced on the hearing, and from which he drew the will. This memorandum, of itself, shows intelligence, memory, judgment and discrimination in regard to children and grandchildren, and other friends, and the character and situation of her property, quite remarkable for so old a person; and, I thiuk, amply demonstrates her capacity to make a will. The will as it is, was drawn, as Judge Richardson testifies, from this memorandum then made by him at her dictation, and was read over to her some few weeks afterwards, and corrected or altered in a few particulars by her, and then duly executed. It was in reference to this memorandum, thus made, that one of the chief contestants, and quite an intelligent man, I should presume, from his testimony, said, in the course of his testimony, that “ few men are competent to sit down and apportion an estate as it is apportioned in this will, unless he had notes put down first. I think few men are competent without taking a memorandum or minutes of the specifications in the will."

Judge Richardson testifies that he had but little ac

Kinne v. Johnson.

quaintance with the testatrix before; that she appeared remarkably bright, and talked about her husband and children, and affairs, and the early history of the country.

The two attesting witnesses had known her, one 30 and the other 38 years. They both testify that they saw nothing, at the time of the execution of the will, indicating that she was of unsound mind; and one of them said that his opinion was, “that she was more than ordinarily smart for a woman of her age.” And such is the concurrent testimony of most of the witnesses, on both sides.

So far, therefore, as the objection to this will is based upon the ground of the incapacity of the testatrix to make a will, I think the objection utterly unsustained and unfounded.

The next objection to the will—that the testatrix, at the time of making it, was under undue influence and restraint-stands upon a different ground. This objection tó a will always implies that the testator or testatrix had sufficient mental capacity to make a valid will, but that the will in question was not his or her own free and voluntary act, but was in fact a will imposed upon him or her by others. The will is set aside, or is refused probate, in this class of cases, on the ground that it is not an honest will that it does not reflect the unbiased intent and wishes of the testator or testatrix, but on the contrary, as I said in Voorhees v. Voorhees, (50 Barb. 126, “had been extorted or procured from the deceased in the weakness and imbecility of old age or disease, by artifice, deceit and imposition, or by persistent importunity amounting to a species of coercion or moral duress.” (And see Eadie v. Slimmon, 26 N. Y. 9; Gardiner v. Gardiner, 34 id. 155; Tyler v. Gardiner, 35 id. 559; Voorhees v. Voorhees, 39 id. 463.) Undue influence, in this sense, is a fraud. The will is set aside upon the principle that its execution was procured by fraud and imposition, and for that reason,

Kinne v. Johnson.

and upon that ground, it is not the act, deed or will of the deceased. Upon no other ground has a court any right to set aside a deed or will executed by a person of sane mind and memory, when the execution of the same was not procured, and the free agency of the party overcome, by some constraint, coercion, duress or force.

In this case there is not any distinct affirmative evidence showing that the respondent interfered with the making of the will. He did not draw it, or dictate it; was not present when its tenor was dictated, which we have seen, was done by the testatrix herself; no one else being present at the time, except the draftsman of the will. The respondent was not present at the time of the execution of the will, and there is no evidence that he knew of its provisions, before its execution or for some time afterwards. So far as relates to acts tending to influence the making of the will, in its present form, or interfering with its provisions or contents, there is not a particle of affirmative testimony tending to impute any interference with the testatrix, to the respondents or either of them, more than any other friend of the testatrix. If the testatrix was unduly influenced by the respondents, or any of them, to make the will in its present form, such influence must therefore be inferred from circumstances, and imputed and found as a fact, without any direct proof, and against the positive testimony of the respondent Johnson and his wife.

The facts chiefly relied on by the appellant, upon this point, are, that most of the property devised by the will was given to the respondent Johnson and his family; that the property was of the amount of about $30,000, and was chiefly personal estate. Of this amount the will gives to the respondent, inclusive of the specific legacies to his wife and children, about two thirds, according to the estimate of the collector appointed by the surrogate.

The other facts are, that the testatrix, for the last ten

Kinne o. Johnson.

years of her life, lived most of the time with the respondent, Johnson, and he was her agent and managed her affairs, and employed the attorney who drew the will, and took the testatrix to him.

These are the leading facts urged to establish undue influence. The respondent Johnson and his wife did go with the testatrix to Waterloo, some ten or fifteen miles from his residence, and took her with them, knowing that she was going there to have Judge Richardson draw her will. Johnson went with her to Judge Richardson's office. But Judge Richardson and Johnson both testify that he immediately left the office, and was not present during the conversation between her and Judge Richardson in respect to the will; and both Johnson and his wife testify that „neither they nor either of them, to the knowledge of each other, had any conversation with her about the will, or its contents, or at Waterloo or that place, or before, at any time.

And the circumstances attending the preparation of the will and the directions in respect thereto, as before stated, show, I think, quite conclusively that no person could have dictated the terms of the will to the testatrix before she went to the office of Judge Richardson, if his testimony is to be believed.

It also appears that though the testatrix had lived much in the family of Johnson, for the last ten years of her life, at the time of the making of the will she was living by herself, and in her own house, at Ovid, several miles distant from the respondent's residence; where she had, at that time, lived about two years, and where she continued to live for about a year afterwards.

The fact that the respondent was agent for the testatrix, and had for several years managed her affairs, is, I think, the most important fact for consideration, on this question of undue influence.

Where a large portion of the property of a deceased per

Kinne v. Johnson.

son is given by his will to one standing in a fiduciary relation to the testator, the circumstance is suspicious, if it does not furnish a ground for the presumption that undue influence was exerted, or fraud practiced upon the testator in procuring the execution of the will. (Van Pelt v. Van Pelt, 30 Barb. 140. Lake v. Ranney, 33 id. 68. Tyler v. Gardiner, 35 N. Y. 592.) In such case proof should be given to satisfy the court that such position and relation was not abused, and that the will was the clear and free act of the party, unaffected by any improper influence.

In Crispell v. Dubois, (4 Barb. 393,) the will contained a devise in favor of the medical attendant of the testator, who had long acted as the agent and confidential adviser of the deceased. The court held that these circumstances created a “strong presumption against the validity of the act;" and that this should be overcome “ by very clear proof that the will was executed by the testatrix with a full muderstanding of the nature and effect of the instrument.” In that case the will was drawn by the devisee himself; which was also regarded as one of the strong circumstances from which undue influence was to be inferred. In Tyler v. Gardiner the will was drawn from written instructions of the daughter chiefly benefited by it. This fact was justly regarded, in that case, as a very controlling circumstance tending to impeach the will. So when the chief beneficiary under the will stands in a coufidential relation to the deceased it should clearly appear that the will was freely made, and was fully understood by the testator. This fact is fully proved, in the present case, by the testimony of Judge Richardson. He drew the will from her dictation, and read it over to her when it was executed, a few weeks afterwards, when, he says, she fully understood it, and corrected it, in some particulars.

The force of the objection that a devisee under a will

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