In re the Probate of Papers Propounded as the Last Will & Testament & a Codicil thereto of Van Ness

This has been one of the-longest contested probates ever before this court. The contest has been so

Cornelius H. Van Ness, the alleged testator, when a very old man made the papers propounded in favor of his third wife, now here as proponent. Much, if not all, of the estate, which in some event purports to pass under the testamentary scripts in question, was derived by Mr. Van Ness under the will of his second wife. Probate of the several papers propounded as the last will of Mr. Van Ness is contested by certain beneficiaries or representatives under the will of the second Mrs. Van Ness, and also by the only daughter of testator’s first marriage, now Mrs!' Parsons. The daughter, Mrs. Parsons, however, confines her contest to the paper purporting to be a codicil, and she fails actively to contest the will itself, but in an extremely cautious way, as she states at the bar of the court, that she regards it “ as unjust.” This statement of opinion goes for nothing, as, if she does not contest the will and is willing to take under it, she must be taken to assent to its probate if the mere factum is established by proponent. The special guardian, likewise, contests the codicil only.

The fact is apparent to the surrogate that this disputed will in reality relates to a small part, if any, of the estate enjoyed by the late Mr. Van Ness in his lifetime. Before he made the testamentary writings, now brought into this court for probate, he had made various assignments of his property to his third wife, which are now the subject of controversy elsewhere. The testamentary papers propounded seem to operate, to a great extent, as a sort of further assurance to the third wife. If the assignments to her fail, she falls back on the will. If the will fail, she resorts to the assignments. Thus this probate cause is only an incident in an extensive litigation, or litigations, which ransack the whole estate enjoyed by the late Mr. Van Ness in his lifetime. The proceedings in this court are a mere adjunct to more searching proceedings conducted elsewhere. A contested probate of this character is extremely troublesome in

Cornelius H. Van Ness was born in this state, February 14, 1819. In 1845 he married in this state the daughter of his employer. The lady’s name was Deborah Bradt. She is still alive in the ninetieth year of her age. By this marriage Mr. Van Ness had one child, now Mrs. Parsons, one of the contestants of the codicil here offered for probate. During this first marriage Mr. Van Ness is shown to have had a somewhat varied business career, at first being employed in the Erie canal freight office, and afterward with various transportation offices. He appears not to have shown extraordinary talent or power of accumulation. His own estate, if anything, was always small. On August 21, 1867, Mr. Van Ness was divorced by a decree of a competent court of this state -from the wife of his youth, De

In 1875 Mr. Van Mess married Mrs. Emma Louise Burr Wright. There was some offer or attempt to prove that Mr. Van Mess courted this lady while she was the wife of another, but the surrogate excluded this as too-remote and not relevant or fair to the dead woman in question. This lady’s relatives and representatives are now here contesting on various grounds the probate in this cause. It seems Emma Louise Van Mess was the heiress to a very large paternal estate, of which she shortly after her marriage to Mr. Van Mess became seized and possessed in her own right. Eor twenty-three years Mr. Van Mess lived apparently happily with this second wife Emma Louise; lastly, on an estate purchased by her at Cornwall, in the county of Orange and state of Mew York. In 1898 the second Mrs. Van Mess died, and her property passed by her will to Mr. Van Mess, under conditions and circumstances which will of necessity be the subject of consideration in this cause.

In the eighty-second year of his age Mr. Van Mess, then being possessed of an apparently large property, contracted his third marriage. This time he intermarried with a very young woman, by name Alice Wood. This third marriage took place under circumstances and conditions shown in great detail in the testimonial evidence offered on the part of the contestants. The third marriage ceremony was twice performed, once in Mew York city on February 21, 1900, and again in Mew Jersey on May 11, 1900: It is the widow of this third marriage who now stands here as the proponent of the papers purporting to be the last will and codicil thereto of Cornelius H. Van Mess. The will offered for probate bears date June 24, 1901, and the codicil January 24, 190'2, and both writings purport to have been executed on their respective dates.

The opposition of the contestants to the probate sought rests mainly upon charges of fraud and undue influence exercised over the testamentary mind of Mr. Van Mess by the proponent and others unknown. Absolute incapacity to malee any will upon the part of Mr. Van Mess is not pre

In probate causes, alleging undue influence alone, the proofs naturally take a wide range (Matter of Woodward,

Undue influence has been so often defined by courts of authority that it is superfluous for us again to enter at large upon such a refined and settled discussion. But in respect of the principle which ought to control this adjudication it may be announced, in brief, that undue influence in law always imports coercidn in and about the will itself. Matter of Campbell’s Will, 136 N. Y. Supp. 1104 , 1105. Without such moral or actual coercion there is no undue influence in law. Wingrove v. Wingrove, 11 P. D. 82; Williams v.

But the definition of undue influence just noticed is obviously incomplete. What in law is coercion, or, as it is sometimes designated, “ moral coercion ? To define coercion is really the crux of the accepted definition of undue influence. It has been said that it is impossible to define or prescribe undue influence with precision, and that it depends on the facts of each case. Rollwagen v. Rollwagen, 62 N. Y. 519 . This can only mean that the law in this regard proceeds by negation; it defines what is not undue influence, not what is undue influence. Some day surely the negative category will be complete and an accurate legal definition made possible. Fortunately meanwhile we are not left with so unsatisfactory a working rule. The coercion of the definition may be defined with tolerable precision. Coercion is an artificial state whereby a testator is deprived of his free will. This deprivation may result from fear, constraint, force or fraud, or any other unlawful inducing cause, produced by some one not the testator himself, for the purpose and with the intention of procuring from testator a last will and testament of testator which shall not in fact be the true expression of testator’s own testamentary

It is obvious that “ coercion,” as used in the sense indicated or in the definition of undue influence, need not be induced by actual or physical force. It may be the result of any wrongful means which produce moral restraint and consequent want of free will. -Such means in law constitute the moral coercion of the definition. In the year 1564, in Hacker v. Newborn, Style, 427, Chief Justice Roll said: “ If a man make his will in his sickness,, by the overimportuning of his wife to the end he may be quiet, this shall be said to be a will made by constraint, and shall not be a good will.” This case is cited with approval by the chancellor in Clark v. Fisher, 1 Paige, 177. But the importunity Chief Justice Roll speaks of must be irresistible and such as to render the act no longer the act of the deceased. Kinleside v. Harrison, 2 Phill. 551 ; I Ecc. Rep. 336; Constable v. Tufnell, 4 Haag. 485; C., 6, 34, 1.

I have cited the Boman law as still of some indirect influence on probate law and the law of wills, and in so doing I am justified by precedent. In this court the authorized citations of rules of law differ from those employed in the other courts of this state. The testamentary law, administered in this court, stands on its own independent, foundations and it has a long history, too little understood. The genesis of the English and American will was peculiarly Boman, and in every country where wills exist Boman law affecting them remains potentially, even if not expressly, adopted. Kelke, Roman Law, 101. It has been said with

It is not necessary for contestants in this cause to prove Mr. Van Mess insane. It has never been doubted, since Lord Hardwicke said in Lord Donegal’s Case, 2 Ves. Sr. 408, that fraud and imposition upon a man of weak mind (which include undue influence) might be sufficient to set-aside his will, although his weakness was not sufficient ground for a commission of lunacy. Rollwagen v. Rollwagen, 63 N. Y. 519 ; Matter of Campbell, 136 N. Y. Supp. 1104 . As stated before, contestants rest in this cause largely on a charge of undue influence exerted by Alice Wood, the third Mrs. Van Mess, and now the proponent in this cause, as the widow of the deceased. Fraud also is distinctly alleged.

It has been said by the highest court of this state that “ undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator.” Rollwagen v. Rollwagen, 63 N. Y. 519 ; Children’s Aid Society v. Loveridge, 70 id. 395; Matter of Sandberg, 75 Misc. Rep. 38 , 44. Certainly when undue influence is charged and maintained by evidence of circumstances only, the courts are extremely liberal in regard to

Having briefly surveyed what is conceived to be the accepted law of this case in order that the evidence may be weighed with more precision, the surrogate takes leave to remark that there are some points which should not be overlooked. After proponent shows a formal compliance with the Statute of Wills the burden of going forward and making out proof of undue influence lies with contestants. Boyce v. Rossborough, 6 H. L. Cas. 51; Matter of Martin, 98 N. Y. 196 ; Matter of Bolles, 37 Misc. Rep. 567 ; Matter of Nelson, 97 App. Div. 217 ; Matter of Klinzner, 71 Misc. Rep. 638 . But where the ultimate burden of proof on the whole issues raised by the pleadings lies in a probate cause is another matter. Matter of Mooney, 73 Misc. 323 ; Matter of Klinzner, 71 id. 638; Mater of Campbell, 136 N. Y. Supp. 1102 . There can be no doubt that it rests on proponent.

Undue influence, while it may be proved indirectly by circumstantial evidence, cannot be presumed; it must be proved with precision. Boyce v. Rossborough, 6 H. L. Cas. 49; Cudney v. Cudney, 68 N. Y. 148 ; Loder v. Whelpley, 111 id. 250 ; Matter of Richardson, 137 App. Div. 103 ; Matter of Campbell, 136 N. Y. Supp. 1104 . This rule is as old as Ulpian: “ Dolum ex indiciis perspicuis probavi convenitff and it is a part of the testamentary law of every nation where walls are allowed. Pothier, Pand, tit. 1, p. 125, No. 10; 2 Troplong, Des Testaments, 64.

What do these rules, recognized in all probate courts, mean except that strained inferences and arbitrary assumptions are not to be indulged in on an issue of this kind ? The evidence must be cogent and permit no other inference than undue influence. The danger of all circumstantial evidence is that some pride of intellectual ingenuity or some irrelevant guesses and unauthorized assumptions may be suffered to bridge chasms of missing proofs. Circumstantial proofs must be irrefragable and they must irresistibly point with moral certainty to the factum probandum. If the circum

This brings us to the general consideration of the first point of difficulty in this cause. I refer to the circumstances proved in relation to the third marriage of testator, or that to Alice Wood. Much time was consumed on this branch of the trial. The circumstances in and about the marriage of Mr. Van Hess to Alice Wood are greatly, relied on by contestants to prove undue influence on her part in and about the subsequent procurement of the papers propounded in this cause. It is claimed by contestants, in substance, that a young stranger enticed an old and amorous man, in his dotage, into matrimony for her own ulterior ends, and that she accomplished these ends by undue influence, circumvention and artifice. From the facts surrounding her marriage, I am asked to infer undue influence in subsequent acts and events. The first question of law for me in my own mind is, whether the circumstances in and about her act of marriage ought to be assumed to he connected with subsequent circumstances of a different nature, tending to prove undue influence in and about .a later will made in the favor of the young woman by her husband. To inquire into the motive which induces any status of marriage is to me abhorrent and I think, as a general rule, it is contrary to public policy. To my mind, all prior acts, conduct and negotiations of the intending spouses in and about an act of marriage are to be regarded as merged in their subsequent marriage, if it is a marriage de jure, or one recognized as a marriage in fact and in law. If there is not sufficient fraud or incapacity about such circumstances to induce the active interference

There is authority, both English and American, to the effect that extraordinary circumstances in and about a prior marriage may be considered on an allegation of undue influence in the subsequent procurement of a will from one spouse in favor of the other. In Clark v. Fisher, 1 Paige Ch. 171 , the marriage was regarded as a circumstance of the unlawful performances which was consummated by a will. In the well known case on the will of Rollwagen (Rollwagen v. Rollwagen, 83 N. Y. 508 ), the Court of Appeals went very far, I venture to think. They appear to sanction an inference from discrepancy in age, taking into account the ill-health of the man and the poverty of the woman, that their marriage was not, therefore, “ a marriage of affection,” and that such a woman “ could have no motive to marry a helpless and broken down man except his wealth.” From that decision, I would, perhaps, be justified in drawing a similar inference here, but I will not. In Hoffman v. Hoff

These are very exalted utterances of authority which I have just instanced, and to some proper extent they are those to which the surrogate may be bound to defer in this cause. But, nevertheless, I venture to think for myself that some of such inferences are not wholly legitimate in application by the stricter principles of the law governing circumstantial evidence. A mere discrepancy, however gross, in the age of the spouses seems to me tó tolerate no conclusion in law that there is an absence of affection between them or that one will necessarily overreach the other. There are well known instances of deep affection and good faith between apparently ill-mated spouses, and one such instance destroys the legitimacy of an inference of the kind indicated. An inferior court is always obligated to take the law from the superior courts of its jurisdiction. But it is not bound to adopt mere inferences which are unnecessary to its judgment. I am, in fact, in extreme doubt, having reference to the principles controlling circumstantial evidence, whether many of such inferences as those stated in the cases • cited were intended to be prescribed as invariable inferences from certain facts proven. There are some sanctuaries where" even the law cannot penetrate, and one, to my mind, is the heart of

While it is true, I think, that an assumption of an unlawful intent upon the part of the younger spouse ought not to be made from the poverty of one spouse and the wealth of the other, or from a mere discrepancy in the ages of the spouses, there may under the authorities be other circumstances surrounding a marriage which are fairly entitled to be taken into consideration on the allegation of subsequent undue influence exerted by one spouse over the other. The situation of the parties at the time of marriage, the mental strength of one spouse and the weakness of the other at the time the status of husband and wife is first determined, may have some direct relation to a subsequent testamentary act on the part of the weaker spouse. A fact or situation once proved to exist may' in the absence of proof to the contrary be presumed to continue. Indeed, there are occasions when subsequent situations may be shown in no other way. In such cases to reject such proofs would, I think, be a denial of

In order to understand the proofs of contestants tending to show that at the time of his marriage and the making of his will testator was in his dotage, eccentric and -feeble-minded and thereby rendered peculiarly susceptible to outward influence of a feminine kind, we must first construct from the evidence the normal man both mentally and physically. A man asserted from circumstantial incidents to be in such a state of dotage and subjection must-be compared with himself in periods of his health and freedom from subjection, otherwise our inference from the circumstances proved may err. Matter of Hock, 74 Misc. Rep. 20 , 21. We are all familiar with the common principle that there is no presumption of testamentary incapacity by reason of advanced age alone. But when a senile state is established the proponent’s proofs must be clear.

At the time of the death of his second wife, Emma Louise, Mr. Van Hess was in his 80th year, and no doubt the shock of her death was great. Her life must have been most closely bound to his in consequence of the peculiar obligations entailed by the intermarriage of persons situated as both then were. There is no rea-son to conclude that his grief for her death was not genuine and his isolation complete, no matter what peculiar or tasteless form his grief may have exhibited. Whether the forms in question are consistent with the normal man or only consistent with dotage and mental weakness

That some of the contestants’ evidence of Mr. Van Mess’ acts is consistent with the claim of dotage and abnormal eccentricity on the part of Mr. Van Mess is all that can be inferred. Standing alone such evidence would be insufficient to establish testamentary incapacity. But even if it denotes only the weakness of age, that fact, if established, is not to be disregarded in a probate cause where fraud and un-. due influence are charged and attempted, as in this, cause, to be substantiated by circumstantial proofs only.

The testator’s family relations must next be considered. From the time of Mr. Van Mess’ second marriage with Emma Louise Wright, in 1875, until her death in 1898, Mr., Van Mess’ intercourse with his first wife’s daughter, Mrs. Parsons, was necessarily interrupted. This daughter lived with her mother, Mr. Van Mess’ wife, who had divorced him, and Mrs. Parsons’ sense of dignity and propriety toward her mother precluded such intercourse with her offending father. But after the death of the second Mrs. Van Mess, Mrs. Parsons, with apparent delicacy and amiability, became reconciled to her father and he to her. That the daughter was in every way his superior was- apparent on the trial. That before his third marriage the father’s affection, or such as he had to give, returned to his only daughter after his second wife’s death is also apparent in detail. He exhibited some real interest in this daughter and presented her with an elaborate and costly tomb, quite out of keeping with her apparent and regular means of existence. The small settlement • in money which Mr. Van Mess also made on his daughter, after his second wife’s death, exceeded only by a little the cost of the tomb, but not by much, both items aggregating from $50,-000 to $60,000. At that time the income of Mr. Van Mess was very large, and his mode of life relatively inexpensive. He could very well afford to do what he did for his daughter

Mr. Van Hess after his second wife’s death was in the eightieth or eighty-first year of his age. He then lived alone in his country home with several servants, Mr. and Mrs. East, who were brought back from England to testify in this cause, and their evidence is much relied on by the contestants. This man and his equally elderly wife seem to have performed almost all the household duties for Mr. Van Hess, as they had in the lifetime of the second Mrs. Van Hess. Later they were aided by their niece, Lilian, a very young English woman Avho soon was high in the favor of their common employer. Mrs. East, the woman servant, testifies that Mr. Van Hess after the death of the second Mrs. Van Hess and about the time that Miss Alice Wood appeared on the scene was in such a helpless condition that she even gave him his bath and dressed and undressed him. This testimony is not contradicted directly. Ho doubt after the death of the second wife Mr. Van Hess was both ill and prostrated and such ministrations ought to be referred, I think, largely to that immediate period. Certainly this extremely weak condition must have somewhat altered for the better, for there is much competent and uncontradicted testimony showing

There is much disagreeable evidence in the record and some arguments of counsel which I will not refer to, unless they are imperatively necessary to my conclusions. Mr. Van Hess was a very old man at the date of his last marriage, but some inferences suggested from that fact would not be proper for a court of justice. In smnming up the testimony and taking account of the arguments of counsel of course the court must take the facts and arguments as it finds them, and not as it would prefer them. The case is not an ordinary one, and if there are some incidents or arguments which seem trifling or indelicate, the surrogate at least need not dwell on them longer than necessary.

The testimony of the servants, Mr. and Mrs. East, is so important that the weight to be accorded to it requires much consideration. The testimony of dependents in a household concerning household matters is always to be scrutinized with some care in cases of this character; not because there is any diminution of average truthfulness by reason of such an honest status, but for other reasons hereafter mentioned. It

It is true, that at the instance of contestants, the deposition of Mrs. Alice Wood Van Ness was taken before trial, and that some portions of the deposition so taken were read in evidence before the surrogate by counsel for contestants, while still other portions were read by counsel for proponent. This deposition was taken before trial under the provisions of the Code of Civil Procedure, and it was read in evidence pursuant to the Code of Civil Procedure. Berdell v. Berdell, 86 N. Y. 519 . The party reading it in evidence was at liberty to read any parts of the deposition which he preferred to read and to omit any parts not desired. Smith v.

The testimony of Mrs. East taken on the trial concerning Mr. Van Hess’ physical prostration after the death of his second wife and at the period of the arrival of Miss Wood on the scene at the country home at Cornwall is confirmed by

Much testimony of the contestants was directed to other strange incidents and circumstances, relied on by contestants as significant of undue influence, conspiracy and fraud, as well as senility and weakened condition of the alleged testator in the years 1899, 1900 and 1901, the period embracing his first acquaintance and marriage with Alice Wood and the making of the contested will. The attentions of Mr. Van Ness to various women, including the young country girls whom he met on the roadside or casually elsewhere, are instances in point and are much relied on by contestants, or I should not notice them. It is, however, apparent to me that this may have been stupid jocularity on his part. At this

That Mr. Van Ness, the alleged testator, was during the years 1899, 1900 and 1901 a very old man, somewhat eccentric and susceptible to female influences, is, I think, established. That he was an easy prey to designing people is likewise established, although there seems to have been a dominating note and strength of purpose at times apparent in him, which he mainly reserved for trifles. In no instance of importance was it ever apparent. In all trifles he was firm and in all important matters obviously weak. But had there been no evidence of fraud, circumvention, or undue influence, in this cause his testamentary power would have been sufficient. His actual condition, as established by the proofs, made it highly incumbent on proponent to substantiate the fact that the papers propounded were the acts of a

It appears by the evidence that on Movember 5,. 1899, when the grief of Mr. Van Mess for his late wife was apparently somewhat allayed, as shown by some of the incidents mentioned, the proponent, then Miss Alice Wood, suddenly appeared at his country home in Cornwall. This then very young stranger, more than half a century Mr. Van Mess’ junior, was a native or resident from her early youth of Port Jervis, in the same county, and was at that time sojourning temporarily at Cornwall. It is established that she was then in very poor circumstances. As the result of a slight mishap to her anlde in front of Mr. Van Mess’ house, Miss Wood entered the house on Movember 5, 1899, and was cared for by one of Mr. Van Mess’ woman servants, Mrs. East. Miss Wood did not meet Mr. Van Mess on that occasion, as it appears. But on the day following she called in person to thank Mr. Van Mess. He invited her in, and on this first occasion she is sworn to have embraced him and to have protested that she could remain all her life in his attractive house, or words to that effect. On that occasion the testator was so affected as to shed tears. Miss Wood then left, but the next day Mr. Van Mess took Miss Wood to drive, and in a day or so it seems he followed her to the city of Mew York. A few days subsequently Miss Wood came quite unattended for a visit of some duration to Mr. Van Mess. Reciprocal visits followed between Mr. Van Mess and Miss Wood’s family, but it is quite unnecessary to go into all the uninviting details of the evidence concerning this courtship, which resulted in a first marriage ceremony in the city of Mew York on February 21, 1900, a little more than three months after the first meeting of the contracting parties. The important points in law are the only necessary considerations for the surrogate. In order to be just to the parties concerned, too much weight should not be placed on what may be termed the unconventional character of some of the incidents surrounding the accidental acquaintance or the

We come next to the consideration of matters which do constitute the gravamen of the contestants’ case: The facts proven are claimed to show undue influence, fraud and circumvention in and about the unlawful procurement by the proponent and her abbettors of the estate of Mr. Van Mess, including the will propounded. A will is claimed to be only pa'rt of the res of which Mr. Van Mess was defrauded. If the marriage of Mr. Van Mess to Alice Wood was in fact only a part of an avowed and established scheme, it should be so considered. Otherwise the'facts attending the marriage itself, however lacking in conventionality, are to be disregarded. The newly married couple, as it appears, went to Mr. Van Mess’ house at Cornwall to live immediately after the ceremony on February 21, 1900, which was unattended by his friends or relatives. On his arrival at home the alleged testator was taken ill from a cold and he kept his bed for several weeks. During the first month of the newly married life of Mr. and Mrs. Van Mess, the declarations of Mrs. Van Mess are given in evidence as tending to prove her intent and purpose and the fraud and undue influence charged by contestants. Had she seen fit to contradict them I should have given her contradiction close attention, but she did not.

It is uncontradicted that the proponent shortly after marriage told Mrs. East that she had heard before her acquaintance with Mr. Van Mess “ that there was a rich old guy up the country that wanted a wife badly, and that was how she came to know Mr. Van Mess.” This declaration stands wholly uncontradicted and the surrogate cannot disregard it in view of the character of his acquaintance with proponent and Mr. Van Mess’ condition at the time. Such •declaration is only important in connection with other closely related facts, established on the hearing.

The surrogate must now pass to a circumstance greatly

Mr. Chedsey, the very respectable family lawyer, who had long been connected with the estate of the second wife, Emma Louise Van Mess, gave very important testimony about the Pobe letter and proponent’s conduct concerning it. Mr. Chedsey’s evidence on this point also stands uncontradicted, although it was in proponent’s own power to have denied it if untrue. Taking his testimony on this point as

We come next to the nature and situation of the testator’s property. The nature and situation of the property of a testator is always properly before the surrogate on an allegation of undue influence in a testamentary cause. Matter of Woodward, 167 N. Y. 28 . The judgment-roll in the action of Harmon v. Van Ness in the Supreme Court of the state of New York was ultimately put in evidence in this proceeding, and the judgment is certainly binding as between the parties thereto and the persons claiming under them in this proceeding. It discloses much concerning the nature and the situation of the testator’s property at the time the papers propounded came into existence. It also discloses that shortly after the intermarriage of Mr. Van Ness with Alice Wood the will-of Emma Louise Van Ness was construed in that action by the Supreme Court of this state and that the rights and powers thereunder of Mr. Cornelius H. Van Ness, whose will is now offered for probate in this proceeding were determined to be plenary. The persons entitled under the will of Emma Louise Van Ness in the event that Mr. Van Ness did not exercise the powers of disposition conferred on him by the will of his wife, Emma Louise Van Ness, had brought that action against him individually and as executor of Emma Louise Van Ness, claiming in substance that the

It appears that this trust arrangement, provided fox in the judgment of the Supreme Court, was carried out ox-executed by Mx\ Van Mess, his wife being a party defendant, and that the remaining estate not embraced in the tx-ust x-eceived by this alleged testator under the will of Emma Louise Van Mess continued in his possession, but subject to cex-tain contingent limitations over in the event that he did not exex-cise his powers of disposition. Such limitations of contingent remainders over after life interests, with power of disposition in life tenant, have become very common limitations in this state since the Revised Statutes. The $315,000 so set apax*t, it is conceded, did not pass under the will or codicil now before the surrogate in this proceeding to probate them. That a very large property did remain in the hands of Mr. Van Mess is apparent, and he continued throughout his life to be entitled to receive a considex-able income from the trust fund cx-eated pursuant to the said

Mr. Parshall was asked on cross-examination concerning his own knowledge at the time he drew the will of the claims of the heirs and next of kin of Emma Louise Van Mess as made in the suit of Harmon v. Van Mess. In other words, Mr. Parshall was asked, in effect, whether he knew that Alice Wood Van Mess was there charged with being an adventuress, intending to possess herself of the estate enjoyed by Mr. Van Mess under the will of his second wife. Objection was made that the record alone could show the state of his knowledge of such claims. But no attempt was made at that time by such questions to introduce in evidence the record qua record. The questions so put to Mr. Parshall were addressed merely to the knowledge of the witness and to his notice of the contestants’ early position and allegations. The questions were also directed to the fact that after the witness had received such notice he became a party to all the subsequent proceedings stripping testator of his entire estate in favor of Alice Wood Van Mess and her family associaties. It seemed to the surrogate that the knowledge of the witness as to the claims of those claiming adversely to Alice Wood Van Mess under the will of Emma- Louise Van Mess was material in several aspects. It might not be very material in all respects, and yet in others it might be important. Mr. Parshall was distinctly charged by contestants with aiding and abetting Alice Wood Van Mess in all her subsequent acts regarding Mr. Van Mess’ property. The state of Mr. Parshall’s mind was important, as was the extent of his knowledge of the precise situation of Mr. Van Mess and his estate. If the witness Parshall had acted professionally in good faith for Mr. Van Mess, without any

That the Harmon heirs had after his third marriage to Alice Wood some reason to apprehend that Mr. Van Hess might defeat their expectations under the will of Emma Louise Van Hess is apparent, as before such marriage he had already begun to make costly gifts to her and her family in Port Jervis, including real estate. It was conceded that Mrs. Alice Wood Van Hess and Mr. Parshall were in the vaults of the Hassau Bank engaged in an examination of the securities of Mr. Van Hess at the very moment process in the suit of Harmon v. Van Hess was served in April, 1900, some sixty days after the first ceremony of marriage between Mr. Van Hess and Miss Wood. While this fact is perhaps inconsequential in itself, it tends to disclose the circumstances of testator’s property and testator’s sudden and unusual relations with the persons charged with a later undue influence over it and him. That these comparative strangers to Mr. Van Hess should be concerned in any such examination so soon after the marriage is a strange circumstance in itself, perhaps possessing no legal significance and perhaps explained away. It is, however, a fact established.

In May of the year 1901, immediately .after the injunction restraining Mr. Van Hess was removed in the action of Harmon v. Van Hess, Mr. Van Hess, the testator, is claimed to have transferred nearly all his securities and property to Alice Wood Van Hess. It is also in evidence that within two weeks after his marriage testator was importuned by Harry Wood, the brother of proponent, to make some such provision for proponent. This transfer in May, 1901, was without any actual consideration. The written act of transfer is in evidence. The transfer or gift, being a post-nuptial one, was purely voluntary on the part of Mr. Van Hess, but its validity is not before the surrogate. It is, however, apparent that it contained no reservation in the favor of grantor and no power of revocation reserved to him, J myself asked Mr. Parshall whether he advised Mr.

The crude and careless fashion in which the aged husband transferred all his very large property' to one who, though his wife, was a comparative stranger to him, is some evidence of a condition of senility and incompetence charged at the times under investigation in this cause. Mr. Van Hess reserved nothing whatever for himself except the income of the trust fund already mentioned. This he could not convey to her, but he soon transferred the income to her. The settlement on his part on his third wife was so imprudent, so counter to human experience, as to excite the most minute inquiry into its bona fides. The slightest evidence would, I think, suffice to impeach it in a court of equity. But in this cause such transfers are entitled to be regarded only as a badge and circumstance tending to prove the undue influence charged. The transfer was superintended by Mr. Parshall, who was the very same lawyer who later drafted the will in controversy in this proceeding and superintended its execution, participating in the ceremony as one of the attesting' witnesses. It is in evidence that Mr. Parshall was an old acquaintance of Miss Wood, and he and she had been friends from their respective youths in Port Jervis, where both lived for many years. Mr. Parshall had never known Mr. Van Hess until after Miss Wood

That Mr. Van Hess had the abstract right at any time to change his agents and legal advisers cannot be gainsayed, and his excessive anger at the action of the Harmon heirs and their allies might well have been a good and sufficient justification were it not for other circumstances disclosed by the evidence. Had Mr. Parshall shown himself free from all complicity in the denudation of Mr. Van Hess and a competent and wholly disinterested legal adviser, keenly alive to professional obligations, the circumstances which I am considering and about to consider would have less bearing on the factum of will in this proceeding. As it is they have much.

About a year or less after Mr. Van Hess’ marriage to Miss Wood, Mr. and Mrs. Van Hess removed to Port Jervis from Cornwall, thus exchanging the beautiful and picturesque country, to which Mr. Van Hess had long been much attached, for one in which he was a total stranger. His life while at Port Jervis was passed in the intimate company of his new wife’s family and their acquaintances and far from those of his prior lifetime. He was in the eighty-third year of his age and among strangers when the will in controversy purports to have been made. It was made at Port Jervis, amidst the new surroundings of testator, and was drawn by Mr. Parshall and witnessed by those who were also comparative strangers to Mr. Van Hess and who had but recently come into his life through his last marriage. While little legal significance attaches to these circumstances standing apart, they are not devoid of relation to other serious circumstances about to be considered.

At the time Mr. Parshall drew the will now offered for probate it appears that he was in possession of $40,000 in prime railroad bonds belonging originally to Mr. Van Hess, or in his control under the will of his second wife for proper purposes. Mr. Parshall says the transfer of these bonds to

If even this last stated inference is too strong or not justifiable, then we many safely conclude that the facts established in respect of the bonds in his custody do deprive Mr. Parshall of the advantage of that lofty position of professional independence and disinterestedness which is always highly essential in the draftsman of the will of one whose capacity, independence and freedom are in doubt. The proponent should show in this proceeding to probate a will in her favor that the agent of the will was not her agent. Mr. Van Ness, the alleged testator, was in a very peculiar situation toward proponent at the time the will was drawn; he was among strangers very old and separated from his only daughter. His whole environment, his great age, and his many peculiarities certainly entitled Mr. Van Ness to the most independent, the most disinterested and competent legal services on the part of the draftsman of his will. Mr. Par-shall’s relations with Wood and his sister, Mrs. Alice Wood Van Ness, disclose that he did not possess these qualifications, and that he was then under most serious responsibilities and obligations of some kind undisclosed to the family of this proponent. Mr. Parshall, in other words, did not occupy that position towards testator, at the time the will was drawn, which affords any guaranty, in itself, that the paper propounded was the free, unrestrained and independent act of a capable testator. Indeed Mr. Parshall’s connection with the will does not benefit it under the circumstances. On the contrary it raises grounds of suspicion that it was not the voluntary and free act of a capable testator. It was quite open to young Mr. Wood, who, as the record discloses, was present in court to explain the transaction with Mr. Parshall about the bonds and its relations to Mr. Van Ness and his estate; but Mr. Wood was not called

The other attesting witness to the will now offered for probate was Mr. Senger, a brother-in-law of Mr. Par shall, and then a young law student in Mr. Parshall’s own law office in Port Jervis. The acquaintance of Mr. Senger with old Mr. Van Ness was most limited, and his permitted opinions on the testamentary capacity of Mr. Van Ness and that old person’s freedom from all restraint on the occasion of the execution of the will are necessarily not on the highest foundation. Mr. Van Ness was a new-comer in Port Jervis, and the young law student hardly knew him. The greatest circumspection and care were necessary to establish the due execution of a will executed in Port Jervis, among strangers, by the aged Mr. Van Ness almost exclusively in favor of his young wife and contrary to prior testamentary intentions.. Certainly attesting witnesses could have been selected whose witness would have been more conclusive upon factum of will than that of either of the young men actually selected. When the character of persons acting as attesting witnesses is implicated by any circumstances connecting them with the sole beneficiary their act of witnessing is necessarily somewhat affected, and their bias is then to be taken into the account by the surrogate. When their opinions on testator’s capacity or freedom are weighed they are entitled to less consideration than those of persons standing in a better and more exalted and neutral position. Testamentary law fully justifies these conclusions, if none other. The purpose of the law in requiring attesting witnesses to a will has been held to be “ primarily for the security of the testator at the

It has been held in this country, though not, I think, in this jurisdiction, that undue influence is more readily inferred in case of a will in favor of a mistress than in case of a will in favor of a wife. Kessinger v. Kessinger, 37 Ind. 341 . It has been also held that the undue influence of a husband over a wife is more easily inferred than that of a wife over a husband. Marsh v. Tyrrell, 2 Hagg. 84, 4 Ecc. Rep. 51. The integrity of both these decisions may, of course, be open to further contention, although the decisions just cited are only a recrudescence of a very old conception in law. In early Roman law, gifts between spouses were prohibited to some extent, in order to avoid the exercise of the influence now termed undue influence “ ne mutuo amove invicem spoliaventuv ” or, in other words, “ lest by mutual affection they should be despoiled in turns.” So by the early law of France, only a husband or a wife who had no children could give property to the other, according to some old " Ooutumes” and then only in case they were equally alert and also equal in health, age and belongings. Loysel Institutes, 128. These early examples of legal restrictions on the undue influence or wives over husbands and husbands over wives are more interesting than important at present. They, however, recognize the very same danger which modern law guards against in proper cases, as may be seen from the decision on Rollwagen’s Will, in our own courts. 63 N. Y. 540 . Human nature is much the same in different ages and the law of testaments is a very old law and much the same in all countries for a thousand years past.

I will not forget that Alice Wood Van Ness was a wife in

Old testamentary law recognized that any wife, good or bad, might be guilty of procuring a will by undue influence. Swinb. pt. 7, § 2. And ever since it has been held in testamentary matters that an artful wife may readily subdue her husband to her own purposes so as to deprive him of a disposing mind which the law demands of a testator. Mountain v. Bennett, 1 Cox, 353, 355; Rollwagen v. Rollwagen, 63 N. Y. 504 . While legitimate influence and persuasion are always permissible by a wife to a husband, if the wife ruthlessly disregard all propriety and all the rights of others dependent on testator in the process of attaining her own ends, that fact is a circumstance to be considered in determining whether her influence over her husband was in law legitimate or undue. In my inferences from the circumstantial evidence on this point I have endeavored to keep far within the range sanctioned by the decisions in such cases as Rollwagen v. Rollwagen. I have drawn no inference and shall draw none which by any chance or by the strictest rules of induction is not an irresistible inference.

The situation of the parties, the condition of the testator’s estate and some of the circumstances, but not all, about the

While the dispositive character of a testamentary paper is not much looked at in this jurisdiction before probate (Matter of Meyer, 72 Misc. Rep. 566 , 571; 131 N. Y. Supp. 27 ; cf. Van Giessen v. Bridgford, 83 N. Y. 355 ; Matter of Davis, 182 id. 468 ), the surrogate is fully persuaded that a resort to the Statute of Wills with an intention on the part of a testator to do something else than dispose of his estate

But to go back to the factum of will. It was on June 24, 1901, when the testator had nothing left to give that the will now propounded purports to be made giving Mrs. Parsons, the testator’s daughter, $25,000, which testator then did not have to give, and about all the residue of nothing to this proponent, Alice Wood Van Ness. On January 24, 1902, another important paper, called a “ codicil,” was prepared by Mr. Parshall, which on its face took away from Mrs. Parsons even the $25,000 that she never could have received if Mr. Parshall’s evidence of Mr. Van Ness’ pecuniary situation is to be taken as correct. This codicil, if a bona fide attempt under the Statute of Wills, and not a merely color-able instrument by way of consistent concealment of the prior complete denudation of Mr. Van Ness by Alice Wood Van Ness, her family and Mr. Parshall, is in the same position as the will regarded as a dispository document. It disposes of nothing and its proofs lack evidence of testamentary intention on the part of testator, that is, of “ animus testandi ” in the complete sense of that established term of law. In England, whence New York derives much of its common law, a will would be refused probate because not dis-positive. Lister v. Smith, 33 L. J. P. 29; Nichols v. Nichols, 2 Phill. 180 ; Matter of Meyer, 72 Misc. Rep. 571 , 572.

But if we place no harsh construction on the codicil of January 24, 1902, and treat it also as an attempt to testaméntate in good faith under the existing Statute of Wills, the

If we accept it all as true, the evidence of this attesting witness, Dr. Lambert, is not sufficient in itself to disprove

I come now to the consideration of an instrument in evidence in this cause which I regard as important and as most serious to the parties concerned in its preparation. Not content with this codicil, quite excluding the only daughter of testator from any possible participation in her father’s estate, a formal paper was prepared, as the justification of the codicil. It was a minatory, heartless and most unscrupulous writing to be prepared and witnessed by adults of the slightest respectability, if it was ever intended that it should be used against Mrs. Parsons; and subsequent events show that it was attempted to be so used as a means of subjecting the testator’s only daughter, Mrs. Parsons, to a state of terror about the assertion of her claims to her father’s property, whatever it was. Mrs. Parsons appeared in court, an elderly woman, and beyond all witnesses in my experience in her demeanor gentle and considerate. This lady had a large adult family, also of respectability and station. This extraordinary document purporting to be made five days after the codicil' was in the handwriting of proponent and witnessed by Mr. Parshall, the draftsman of the will and codicil. I refer to the document reflecting on Mrs. Parsons’ legitimacy and threatening her with exposure in the event that she ever attempted to commence a suit against Alice Wood Van Ness to break the wills. This document purports to be signed by Mr. Van Ness himself, although it is

It is well established that a party defendant who bribes a juror admits to some extent guilt. I think that a party who resorts to such a paper as that now under my consideration or who resorts to minatory and intimidating actions in a litigation ought to be taken to admit to some extent the guilt charged. In this aspect this incriminating paper is most damaging to this proponent and to Mr. Parshall. It has been said that a party is known by his witnesses. Matter of Benjamin’s Will, 136 N. Y. Supp. 1073 . This is a fortiori true of attesting witnesses to a will or a document. But I will say no more on this head. It was with great reluctance that I have said what is so obvious and at the same time so necessary to be said in the interest of justice.

Many of the essential facts in this cause have now been

It must be remembered that Mr. Van Hess was in about the eighty-fourth year of his age when he made the codicil, only six months after he had made the will now also in question. He had then stripped himself, or been stripped, by conveyances or assignments, of every bit of tangible property he had in the world, even including his own favorite horses. What a lamentable situation for a man of property! There is no proof that at any time afterward he ever did a single act of a serious business nature. There is some proof that he did not. He was, after the making of the will, as completely dead to all affairs of a business nature as a man could be and be alive. While there is some evidence of continued intelligence on his part in minor human interests, even this is not very marked. He lived on, a mere simulacrum of a once powerful man. He had abdicated his property and all business functions to his-young wife. In what way should such a very old man so situated be held to a constructive ratification in such a case as this, or to a ratification by mere acquiescence? It is interesting to observe that in some countries, in no distant age, an abdication of all of his property by a man was regarded as the equivalent of his civil death. Ho further property rights inhered thereafter in such a man. He could do no civil act. He could neither act nor ratify an act. He was civilly dead. While we are in no danger of mistaking such curiosities of bygone laws for actual modern law, there is a pregnant suggestion to be deduced here from the old law cited. Certainly, in this cause before me, if the acquiescence of Mr. Van Hess is held forth by proponent as a plea in condonation of an offense or offenses established, the acquiescence alleged should be made out, not presumptively, but. actually, in order to prevail under the circumstances of

Whether, indeed, a will procured by fraud or undue influence may ever be ratified in law is a very subtle and serious question, not distinctly answered by any modern case. In modern cases such ratifications, by acquiescence, are treated rather as presumptions rebutting circumstantial evidence of fraud and duress. A greater and even more distinguished doctor of the civil law than Swinburne, one more familiar, if possible, with the fundamental principles of civil and canon law regulating wills and the practice in the ecclesiastical courts of England, once having jurisdiction of probate law (and in probate law this law and practice is yet of some authority here, even at this late time), I refer to Ayliffe, who in his well known Parergon Juris Ganonici was of the opinion that a defect in a will affecting testator’s . freedom could never be taken away by ratification or by any subsequent act in law. Ayliffe distinguished between a will defective in some act of solemnity and one procured by fraud or fear, maintaining, in substance, that the latter defect was incapable of ratification. While Bedfield is evidently of the opinion of Swinburne I find no express authority on the point. But be this as it may, and the rule need not be considered further at this time, for the surrogate can find no adequate proof of ratification or acquies

When acts of undue influence are proved no doubt the declarations of testator are competent to show the effect such acts had on his mind, and even to dispel and rebut any claim of imposition. Cudney v. Cudney, 68 N. Y. 152 ; Matter of Nelson, 141 id. 157 ; Matter of Corcoran, 145 App. Div. 129 , 132. That there is evidence of such declarations by Mr. Van Ness is apparent to me and I have given them great consideration. But what are such declarations really worth in this instance when the testator had become so old, so confessedly incompetent to manage his own business affairs, and when the tangled web of his new marriage relations, with its intricate meshes, involved every act of his entire life? It seems to the surrogate that in this particular case they are of little force or value. Such declarations, to carry weight, should also be proved to be the free and voluntary acts of a capable man. Such declarations, to be of value to a testamentary act, must have been made under other circumstances than those shown to exist in this cause. Otherwise their weight is trifling and insufficient to overbear facts clearly established by competent proofs.

Before a will is admitted to probate the surrogate must be satisfied of the genuineness of the will and the validity of its execution. Code Civ. Pro., § 2622. That section means satisfied in accordance with probate law. Now, the burden is on proponent in every probate cause and in every instance, to satisfy the conscience of the court that the instruments propounded constitute the last will of a free and capable testator. Howland v. Taylor, 53 N. Y. 628 ; Matter of Campbell’s Will, 136 N. Y. Supp. 1102 ; Matter of Van den Heuvel’s Wills, 76 Mis. Rep. 137 , and cases there cited. If a single ground for suspicion exist in a probate cause the proof must be clear in order to establish a will. Matter of Van den Heuvel’s Will and cases there cited, 76 Mis. Rep. 137 . In many cases where wills, charged to be the product of fraud, cupidity and undue influence, have failed of probate, it has been because the burdens resting on a proponent, to satisfy the conscience of the court that the

Other reasons than those mentioned might be deduced from the proofs in this cause and assigned by the surrogate in support of the conclusion reached. But the foregoing will suffice. It may be added that the proponent is not much affected by this decision. The property passing under the scripts propounded, if any, is so insignificant as to be of no consequence to proponent. If the post-nuptial settlements in her favor given in evidence stand, and even post-nuptial settlements inter partes are entitled to great consideration from courts of justice, the proponent has no need of the wills in her favor, and no one else except the guardian seriously contends for them. While such considerations as the effect of a decision are perhaps out of place in a court of probate, it is impossible for the surrogate to ignore the state of Mr. Van Ness’ estate on an issue of the kind presented in this cause. The surrogate cannot help seeing that little or nothing purports to pass under the papers propounded. This entire proceeding for probate has been a vain and empty thing. It is not what it seems, but only the prelude to a more serious struggle with which the surrogate has no concern. The parties are here contending only for an advantage elsewhere. The decree sought by proponent is to be used as a shield in other litigations and not according to its tenor and real purport. For this reason the surrogate feels less regret at being obliged to withhold the seal and imprimatur of this court to the wills propounded.

The proponent has in no event adequately discharged the burdens resting on her in this cause. The surrogate is hot satisfied that the testamentary scripts propounded in this cause were the free, the deliberate and the conscious acts, of a capable testator, and for this reason, and this reason alone, the probate sought is refused.

Settle decree accordingly. The special guardian only will be entitled to an allowance.

Probate denied. '