In re the Probate of the Last Will & Testament of Hall — 21 N.Y. St. Rep. 307

Majority

p. 307

In the Matter of the Probate of the Last Will and Testament of Mary Hall, Dec’d.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

"Will—Undue influence—Sufficiency of evidence.

Where the evidence showed that the testatrix gave personal directions; as to the provisions of her will while of sound mind, the fact that she, while leaving two sons and the children of a deceased daughter, gave nothing to one of the sons, except in case ot the death of the daughter’s children, is not sufficient to prove that the will was obtained by fraud or undue influence. Fraud or undue influence will not be inferred from the inequality itself,' and from it alone.

Appeal from a decree of the surrogate’s court of Kings county admitting to probate a paper purporting to be the last will and testament of Mary Hall, deceased.

James P. Neiman, for app’lt; George F. Elliott, for resp’t Benjamin J. Hall; 8. M. & D. E. MeeTcer, for ex’rs. resp’ts ; Ñ. O. Fransioli, special guardian.

The execution of the will in question is. fully proven. The instructions were given by the testatrix to the person who drew the will, personally. After it was drawn it was read over to her. She corrected it in some minor particulars and then executed it under all legal forms. ¡No denial of this is attempted. Both the witnesses testify to her soundness of mind and freedom from all restraint.. She was about sixty-seven years of age, was a widow, had two sons living and the children of a deceased daughter, and died four days after making the will.

One of the sons was given nothing by the will, except in case of death of children of deceased daughter, and he contests her will as being obtained by fraud and undue influence. Apart from unequal division of the property there is no proof whatever either of fraud, misrepresentation, duress or undue influence and it is not a legal principle to infer them or either of them from the- inequality itself and from it alone. Assuming a competent testatrix, she was not bound to show why she disinherited one of her children in order to entitle her will to probate, Cudney v. Cudney, 68 N. Y., 152 ; Marx v. McGlynn, 88 id., 357; Matter of Martin, 98 id., 193.

The exceptions are unimportant in this view. It was. quite unimportant whether the testatrix had once made a will in which her son Thomas was provided for, nor was, it important to prove the condition of Thomas- Hall’s affairs.

There were claims against him and if his mother preferred to give her property to her other children it was, her right to do so.

The decree should be affirmed, with costs.

All concur.