FOURTH DEPARTMENT, JULY, 1905.

[Vol. 107.

and a decree denying probate of the alleged will was duly made and entered, from which this appeal is taken.

John D. Teller, for the appellant.

Frederick E. Storke, for the respondent.

MCLENNAN, P. J. :

The question presented by this appeal is whether or not the determination of the Surrogate's Court that the signature to the alleged last will and testament of Albert G. Burtis, deceased, is a forgery and, therefore, that such instrument is null and void, should be regarded as final, or should such issue be submitted to a jury pursuant to the provisions of section 2588 of the Code of Civil Procedure.

It is the settled rule in this State that in such cases, if upon appeal it appears that the disposition of the questions of fact raised by the evidence is not free from doubt and the surrogate's decision is not entirely satisfactory, the questions of fact will be sent to a jury for determination. Such was expressly stated to be the rule in Matter of Dixon (42 App. Div. 481), recently decided by this court. (Matter of Drake, 45 App. Div. 206.)

In Matter of Brunor (21 App. Div. 259) the court said: “The evidence given upon the part of the proponent tended to establish that the will, as made and executed, was the voluntary act of the testatrix, and that she was uninfluenced by any other considerations than a desire to leave all of the property then at her disposal to her husband. A jury upon a trial of such issue would be justified in so finding, upon the testimony now before us. The question, however, in cases of this kind, does not depend upon the consideration as to whether the surrogate might have found from the evidence that the will was the free and voluntary act of the testatrix, or that a jury might so find. But, rather, is it to be solved by a consideration of the whole evidence as a de novo question; and if, upon such consideration, the mind of the court is in doubt upon the question of whether the will is the free and voluntary act of the testatrix, it becomes a question of fact for the determination of a jury, and it is the duty of the court to set aside the probate and direct a trial of the issues."

In Matter of Lansing (17 N. Y. St. Repr. 440) the court (per

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FOURTH DEPARTMENT, JULY, 1905.

LEARNED, P. J.) said: "It is our duty to examine the case de novo, and unless we are satisfied that the probate should be granted and have no doubt on that point, we should reverse the decree and order issues to be tried. (Howland v. Taylor, 53 N. Y. 627.)"

In Matter of Ellick (19 Wkly. Dig. 231), a case decided by the General Term, third department, the court said: "Where, upon 'appeal from the decree of a surrogate, refusing to admit a will to probate on the ground of undue influence, the court is in doubt, upon the testimony, as to the correctness of the surrogate's decision, the proponent is entitled to have the case reconsidered before a jury, and the court may order it to be tried by a jury at the circuit." (Matter of Tompkins, 69 App. Div. 474.)

There are many decisions to the same effect. In fact, no case has been called to our attention where the correctness of the rule above stated has been questioned. It, therefore, becomes the duty of this court to determine, not simply whether the determination of the Surrogate's Court is supported by evidence, but whether or not the correctness of such decision is reasonably free from doubt and is entirely satisfactory. If not, then the questions of fact should be sent to a jury for its determination.

We shall not attempt to call attention in detail to the voluminous evidence contained in the record, covering nearly 1,000 pages, bearing upon the question of the genuineness of the signature to the alleged will, which is the only issue involved, but will content ourselves with a reference to its general features, which we think very clearly show that such issue is not free from doubt, but is involved. in great uncertainty.

In reviewing the determination of the learned surrogate in that regard it is important to consider the situation of the deceased and of the parties proponent and contestant, the relations which they respectively sustained to him, and all the surrounding circumstances, as well as the direct and expert testimony bearing directly upon the genuineness of the disputed signature.

At the time the alleged will purports to have been executed, May 26, 1902, the deceased was about fifty-nine years of age. He died on the 8th day of May, 1903. He had accumulated and was managing property of the value of about $250,000, consisting mostly of securities, and so far as appears he managed the same in a reason

FOURTH DEPARTMENT, JULY, 1905.

[Vol. 107. ably careful and prudent manner; invested and reinvested it as occasion required; squandered none of it, and was regarded by his business associates as entirely competent to manage his comparatively large fortune.

The decedent was a bachelor; had no children, his nearest relatives being a father and brother. The evidence quite conclusively shows that he did not intend either of them should be the recipient of his bounty. He had a cousin, a Mrs. Scott, for whom he evidently had feelings of affection, and had frequently expressed the intention of making her his sole legatee. In fact, in the year 1899 the deceased executed a will in due form, bequeathing to her his entire estate. There is evidence tending to show, however, that such will was made upon the understanding that she would execute a reciprocal will, which she failed to do; at all events, after her marriage, it appears that his intentions in respect to her had changed, and if it was the testator's wish that his estate should go to Mrs. Scott, the evidence fails to indicate it with any degree of certainty. There is no evidence which even tends to show that the alleged testator intended or wished his property to go to his blood relatives or next of kin.

The decedent first became acquainted with the proponent when she was fifteen or sixteen years of age, in 1897 or 1898, about seven years prior to his death. She was then living with her mother in the city of Auburn. So far as appears she was an ordinarily bright and attractive girl. At the time when such acquaintance began the deceased had a home or establishment on Owasco lake, where he spent the greater part of his time, and where he entertained lavishly, not always elegantly or in such manner as becomes a gentleman, yet in such fashion as to lead men of business and social standing in the community to partake of his hospitality. It is beyond doubt that the deceased was dissipated, was addicted to the excessive use of liquor, absinthe and cordials, and to such extent as at times when on a protracted spree to practically incapacitate him for intelligently transacting business. Such condition most frequently occurred at his home on the lakeside, and then it was his habit to seclude himself from his associates and to absolutely refuse to transact any business. There is no evidence which establishes with any degree of certainty that the deceased, whether under the influ

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ence of liquor or otherwise, ever made an improvident or foolish bargain or any agreement which was not the result of intelligent deliberation and good business judgment. When intoxicated, the evidence does indicate that he was profuse in making verbal promises of gifts to those about him, but in no case, under such circumstances, did he divest himself of any part of his property.

The deceased was a man of affairs, managed a large property successfully, appreciated its extent, and apparently understood fully the situation of all his relatives and next of kin and any claims which they or any of them had upon his bounty. The alleged testator was competent to make a will; indeed, the learned surrogate has made no finding to the contrary, and, therefore, he was free to devise his property as love, friendship, duty or passion might dictate. Nor is there any support in the evidence for the proposition, and there is no finding to the effect, that whatever the deceased did in the premises was not his free and voluntary act.

The

Soon after the deceased became acquainted with the proponent she commenced to make secret visits to his house where there were only male servants and attendants. At first she remained only a short time, but afterwards for days and weeks at a time, all with the knowledge and apparent acquiescence of her mother. deceased was also a frequent caller or visitor at the home of proponent's mother. It is undisputed that after the decedent became acquainted with the proponent he manifested a very lively interest in her, whether for an improper purpose and because infatuated, or as the result of true friendship and regard, is in doubt. Her apparent relations with him are certainly open to criticism. However, many of his acts respecting her do not indicate an illicit relation. He sent her to school at Ithaca, N. Y., also to Chicago, and sent her on a trip to Europe, he paying all her expenses, and during all the time she was practically absent from him. If the only relation sustained by the deceased to the proponent was that of mistress, it, to say the least, is quite unusual that he should have arranged and paid for a course of action on her part which would deprive him of her society. As further indicating the feeling of regard which the decedent entertained for the proponent, it is shown that he went abroad in 1900, but that before going he transferred to proponent a considerable amount of his property, consisting of stocks and

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[Vol. 107. securities, which were indorsed in blank and placed in a sealed envelope with proponent's name and address written thereon in his handwriting, and he placed same in a vault in Fay's Bank in Auburn where they were found intact after his death. These and many other facts disclosed by the evidence very conclusively show that the alleged testator was very greatly interested in the proponent and that whatever may have been its basis, whether passion and lust or love, friendship and regard, it largely exceeded that entertained by him for any of his relatives or next of kin.

If the evidence in the case clearly established that the signature to the will in question was a forgery, the intention of the deceased in respect to the proponent as to the disposition of his property would be wholly immaterial. But if upon the direct and expert testimony that issue is involved in doubt, then the intention of the alleged testator in that regard becomes of very great importance. Concededly, if it were undisputed that the testator intended the proponent should have his entire estate, his alleged signature to an instrument giving effect to such intention, although its genuineness were in dispute, would be subject to much less severe scrutiny than if, by means of such signature, his property were to be disposed of in a manner contrary to his intelligently expressed intention.

The circumstances presented by the evidence in this case bearing upon the intention of the alleged testator are somewhat unusual. As contended by the proponent, the deceased, having no family or immediate relatives for whom he cared, became acquainted with and interested in her, then fifteen or sixteen years of age. For six or seven years after such acquaintance began he sought to improve her mind by sending her to school and affording her opportunity to travel in Europe, to the end that she might become his companion, helpmate, and, eventually, his wife. On behalf of the contestants it is urged that the decedent's relations with the proponent were of an illicit nature, and that they were entered into by the procurement or with the consent of the mother for the purpose of obtaining as a price of such relation the property of the deceased. These are the two conflicting theories presented by the evidence in this case bearing upon the real intention of the deceased in respect to the disposi tion of his property, and it is confidently asserted that such issue, so far as it is important to be considered, is not free from doubt.