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true, and no such mental condition is shown, in view of all the other evidence in the case, at the time the testator was engaged in the business of making his will, that would justify a denial of probate.

In Ivison v. Ivison, 80 App. Div. 599, 80 N. Y. Supp. 1011, a man 80 years of age made a will which was admitted to probate after contest. He left no widow or children, and an action to test the validity of the will was brought by one of the nephews, and judgment for the defendants was entered, sustaining the will. In the case at bar it is urged upon the court that the alleged eccentricities, testified to by witnesses for contestant, are sufficient to support a finding of testamentary incapacity. In the Ivison Case, above referred to, it was shown by the contestant that the testator was supremely fond of money; that he would at times take his bonds or other securities and spread them upon the floor, and then, taking up one of them, would kiss it and call it his God; at times, when he had several thousands of dollars to invest, he would express fear of becoming an object of charity; that he disliked persons who rode a bicycle; that he hated poor people, and once threatened to strike a person asking alms, and at another time put one out-of a room where he happened to be; that, on an occasion when he was being shaved, he got out of the chair, with his face partially covered with lather, for the purpose of driving an organ grinder away; that, when his wife died, which was a few months before his own death, he showed excessive grief, and at times thereafter said he saw her in the air looking like an angel; that he threw kisses at her, and signified a desire to die so that he might be with her; that prior to her death they frequently quarreled, he insisting that she should buy her summer hats in the fall and her winter hats in the spring, because she could then buy them cheaper; and that, after her death and before her burial, he tried to sell her sealskin coat. Upon these and other facts the court, in its opinion, says:

“The general effect of the plaintiff's testimony is simply that the testator was miserly, eccentric, and irrational upon some subjects; but there is an entire absence of evidence that he did not know what property he had, who were the natural objects of his bounty, or that he did not fully understand what he was doing when he made his will."

The court also held that:

"The answer of the medical expert to the hypothetical question that the testator did not have testamentary capacity was not of itself sufficient to justify a finding that at the time the will was executed the testator did not know what he was doing."

From the cases upon the subject of testamentary capacity, it seems clear that evidence, no matter what its character, which does not deal with the mental condition of the testator at the time of the testamentary act, is of little value.

Undue influence, because of the close relation of the deceased with the beneficiaries, and opportunity for same, is urged as a ground, upon the evidence, for denying probate. While the question of competency is closely connected with the issue of undue influence, still there is a distinction, as the allegation of undue influence would seem to imply competency. Whether undue influence was exerted is a and 140 New York State Reporter question of fact, and the nature of the proof is generally circumstantial, and must be such as to lead justly to the inference that undue influence existed. Rollwagen v. Rollwagen, 63 N. Y. 504; Brick v. Brick, 66 N. Y. 144.

Mr. L. M. Martin, one of the witnesses to the will and the attorney who drew it, was told by Amos Armstrong that he was wanted at the house on some business. He went in the forenoon and found deceased in good health, who told him what he wanted. While the will was being drawn, no one was in the room but the attorney and testator. The will was read over to him, and he said it was the way he wanted it. The attorney and testator visited about half an hour before the will was drawn. When it was signed, the testator and the two subscribing witnesses were the only ones present. Testator was a fairly well educated man and practically a stranger to the attorney. There is no evidence of any word or act on the part of any one designed to, or which did, in the slightest degree influence the testator in the disposition of his property. "It is not sufficient, to establish that a will was obtained by undue influence, that the person accused of practicing it had an opportunity so to do, because the fact that such an opportunity existed does not raise the presumption that advantage was taken of it.” Matter of Spratt's Will, 4 App. Div. 5, 38 N. Y. Supp. 329; Matter of Bedlow, 67 Hun, 408, 22 N. Y. Supp. 290; Cudney v. Cudney, 68 N. Y. 148. “Those persons who occupy intimate and affectionate relations with any individual have the right, by personal request, by fair argument, and even by decent importunities, to procure a will to be made. The fact that they have done so is no argument against the validity of the paper, provided these importunities do not proceed so far as to overpower the will of the testator and induce him to do the thing which he would not have done but for these importunities, and to substitute the will of the beneficiaries in the place of his own uncontrolled judgment.” Matter of Seagrist, 1 App. Div. 616, 619, 37 N. Y. Supp. 496, 499.

The testator lived nearly three years after making his will, and was in good health and physically able to walk around in the village of Deansboro at the time he made his will. Upon the evidence all of the presumptions are against undue influence, and the burden cast on one alleging it was not sustained. "The person who alleges that the will was obtained in that way is bound to prove, not only that there was an opportunity to exercise undue influence, but that it was actually exerted, and that the effect of it was to overpower the will of the testator and procure him to make a disposition of his property other than that which he would have made if no influence was exerted, and which he would not have made if no such influence had been practiced upon him.” Matter of Spratt's Will, 4 App. Div. 5, 38 N. Y. Supp. 333.

Upon the hearing there was no dispute as to what occurred at the time the will was made; and there is no doubt but that the story of what took place at the execution of the will, by proponents' witnesses, is substantially correct, and shows a compliance with all of the statutory and formal requirements essential in the due execution of a will. “Wills are not to be set aside by juries, except for the gravest reasons. A person has a right to dispose of his property in such a way and to such persons as he thinks best. It is only in a case where there is substantial proof of mental incapacity or undue influence that courts or juries may annul the testamentary act." Hagan v. Sone, 174 N. Y. 323, 66 N. E. 975.

Objections overruled and will admitted to probate. Findings and decree may be prepared accordingly.

Probate decreed.

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(Surrogate's Court, Madison County. July, 1907.) EXECUTORS AND ADMINISTRATORS-FINAL SETTLEMENT—SETTING ASIDE.

Letters of administration on the estate of a foreigner were issued to the undertaker, and after decedent's widow came to the country an inventory was filed. The judicial settlement showed the whole estate had been paid out by the administrator. Neither in the inventory nor in the final account had anything been allowed for exemptions to the widow or minor children. This matter was called to the attention of the court by the widow's attorney on the settlement. Held, that the decree entered cannot be reviewed on a petition by the widow, under Code Civ. Proc. $ 2481 (6), for an order to show cause why the decree should not be set aside, and in the absence of any showing of fraud between her attorney and the administrator ; the petitioner's remedy being by appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, $ 2208.] In the matter of the judicial settlement of C. Fred Campbell, administrator of Francesco Rocco. Proceedings dismissed.

M. H. & W. J. Powers, for petitioner.
S. M. Wing, for administrator.
A. E. Campbell, pro se.

KILEY, S. A decree of judicial settlement of the accounts of the above-named administrator was granted by Hon. John E. Smith, the then surrogate of Madison County, and entered in the surrogate's office of said county on the 25th day of November, 1905. The petitioner herein, who is the widow of Francesco Rocco, the above-named decedent, filed her petition with the court on the 6th day of October, 1905, asking for an order that a citation issue to the administrator, and to Albert E. Campbell, who was appointed special guardian of two infant children of said deceased, and to the petitioner, and to all other persons interested in said estate, to show cause, on a day therein designated, why the decree should not be set aside and the administrator directed to pay to the petitioner, as widow, her exemptions as provided by statute. No appeal was taken from the decree of final settlement aforesaid. The petitioner was personally served with a citation for judicial settlement at Rome, N. Y., on the 16th day of November, 1905. The petitioner bases her claim for the relief sought herein upon the provision of subdivision 6 of section 2481 of the Code of Civil Procedure. Her petition alleges fraud and collusion had and practiced between the administrator and the said Albert E. Campbell, who, the

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and 140 New York State Reporter evidence and proceeding show, had been retained by her as her attorney upon said final accounting.

The first question that is presented by the petition, answers, evidence, and proceedings is whether the petitioner is entitled to this remedy. In order to reach a conclusion upon that point, it is necessary to make a brief review of the causes and effect leading up to the time of the filing of the petition. The deceased was an Italian, working upon the railroad near Canastota, this county, and while engaged in that occupation he was accidently killed. The administrator is the undertaker who buried him. The petitioner was not in this country at the time of her husband's death, and letters were issued to Mr. C. F. Campbell, the undertaker, as a creditor. It appears from the evidence that it was nearly a year after Mr. Rocco's death when his widow came to this country. An inventory was taken and filed, showing the assets of the decedent's estate amounted to $286.56, $25 of which, it is claimed, was afterward discovered to belong to another Italian. In the fall of 1905 petitioner retained Mr. A. E. Campbell, and proceedings were instituted and the aforesaid judicial settlement was had. The administrator was represented by George B. Russell, an attorney of Canastota, N. Y. An itemized account was filed. A. E. Campbell, the petitioner's attorney, was also appointed special guardian of the infants, to which I have hereinbefore referred. The account showed that the whole estate had been used up and laid out by the administrator, and that nothing, either in the inventory or in the final account, had been set aside as exemptions for the widow or minor children. We have the evidence of Attorney Campbell that the matter was discussed before the surrogate upon the day of the judicial settlement, and that he spoke about it to the surrogate, or before him, so that the matter was called to the attention of the court.

It seems to me the surrogate made his decision, allowing and finally judicially settling this account, with all pertinent facts before him that are now before the court. Unless fraud was practiced, and collusion existed in marshaling the facts and producing the conditions, as they appeared and were at that time, this decree must stand. tioner alleges fraud, and fraud only. He who alleges fraud must prove fraud, and has the burden of proof upon that issue. This decree cannot be set aside unless like relief, under like circumstances, would be granted in the Supreme Court. Matter of Richardson, 81 Hun, 425, 30 N. Y. Supp. 1008. The fraud is denied by the answers of the administrator and by the attorney who represented petitioner upon the final accounting, so that the issue is fairly presented to the petitioner. I think the petitioner has mistaken her remedy for reviewing the decree. Matter of Hawley, 100 N. Y. 206, 3 N. E. 68; Matter of Douglas, 52 App. Div. 303, 65 N. Y. Supp. 103; Matter of Wood, 70 App. Div. 321, 75 N. Y. Supp. 272. She should have appealed from the decree. Whether the attorney for the petitioner upon the accounting should have taken an appeal, I do not intend to intimate or suggest. I do not know what advice he gave her after the granting of the decree, or whether he advised her at all. That question is not before the court for review, and I express no opinion

The peti

upon it.

The only question involving the attorney, Mr. Campbell

, before me, is: Was he, in connection with the administrator, guilty of any fraud or collusion which deprived the petitioner of her rights in the estate of the deceased? The answer to that I must find in the negative. The record is devoid of any substantial evidence of fraud or collusion. An order may be entered dismissing the proceedings, with $25 costs to the administrator.

Proceedings dismissed, with $25 costs to administrator.

(55 Misc. Rep. 484.)

In re McCABE et al.

(Surrogate's Court, Kings County. July, 1907.) EXECUTORS AND ADMINISTRATORS-COLLECTION OF ASSETS-COMPROMISE.

Testator at his death was a member of a committee of a corporation dealing in real estate and of a syndicate formed to speculate in real estate. One of his executors was a trust company, certain of whose officers and directors were members of the same committee and syndicate. To settle the testator's interest in the first-mentioned .corporation, which at the time of his death bad about 700 pieces of real estate, was an expensive proceeding. Held, that permission to accept a proposed compromise of testator's interest in both corporations, approved by the individual executrix, and not opposed by the widow of testator, and apparently advantageous to the estate, will be granted.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, $ 387.) Application of Mary H. McCabe and another, executors of George A. Domminey, for leave to compromise certain claims. Application granted.

T. E. Pilsworth, for petitioner.
Thomas H. Troy, special guardian.

CHURCH, S. The deceased was in his lifetime interested in a certain contract with a corporation known as the “Realty Associates,” under which contract he was a member of the buying and selling committee of said corporation. The corporation was organized for the purpose of buying, selling, renting, and otherwise dea ing in real estate. Their work was largely done by the buying and selling committee; and, under the provisions of the contract between that committee and the corporation, the compensation of th: former was to be measured by a certain percentage on the profits of such transactions. It was further provided that, in the event of the death of any one of the members of such buying and selling committee, the amount due his estate was to be computed on the basis of the value of the property as of the death of such member. The deceased was also a member of a syndicate formed for the purpose of speculating in certain real property, known as the “Fourth Avenue Syndicate.” In consequence of his death the question naturally arises as to the extent of the interest of his estate in these concerns.

The executor herein is the Title Guarantee & Trust Company. Certain prominent officials and directors of such company are interested as directors in the Realty Associates and a; merbers of the buying

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