This is аn appeal by proponents from the refusal of the surrogate to admit the will to probate. The reasons of the surrogate were that thе deceased could not read or write, and the contents of the will were not made known to him; that he was of unsound mind and memory; and that the will was made under undue influences. The deceased had accumulated by industry about $6,000. He liad a wife, with whom he had lived on good terms for 30 years. He had never had any children. He had kept an hotel, patronized by working men, for some 25 years, and was himself accustomed to drink. His wife was a hard-working woman. The deceased made this will about a month before his death, and by it he gave $200 to his nephew James Smith, and everything else to his wife; making her executrix, and Judge Crane, оf Saratoga Springs, executor. He has three brothers surviving, and several nephews and nieces, and he had had also a sister, who was not known to bе living. The will was dated September 17, 1882. Proceedings for probate were commenced March, 1883; and after some delay the will was admitted to probate, March 20, 1889. This probate was after-wards set aside, on the ground of want of jurisdiction, apparently because certain infants had not lawfully appeared. In January, 1890, the present proceedings were commenced by the executor. The will is witnessed by James M. Andrews and Hiram H. Martin, and is signed by thе mark of the testator. Andrews had died before the hearing. His signature was proved. We are unable to see sufficient evidence to establish undue influence. It was proved (assuming the testimony to be admissible) that he had previously made another will, by which he gave his property to his wife for life. But this change of testamentary disposition is not enough evidence of undue influence, and we find little else. Nor do we think that the evidence sus
The contestants urge that, as the deceased could not read or write, there was not sufficient evidence that he knew the contents of the will. The facts are that the will was drawn by Judge Crane, a lawyer of long praсtice, who-had been for some time judge of the county court. It was drawn at the request of deceased, and at his house. Mr. Andrews, one of the witnessеs, was a lawyer, a man of large business, and at the time over 60 years old, evidently acquainted with the deceased, as appears from the сonversation stated by Martin. Judge Crane and the deceased were together in the room when the two witnesses came in. Judge Crane read aloud the attestation clause in their presence, but did not in their presence read aloud the will. The decision in Rollwagen v. Rollwagen,
We have, then, in this case, more than the mere fact of the formal exeсution of the will. We have circumstances from which any one might reasonably infer that the deceased knew the contents, as it was distinctly proved thаt he knew the nature, of the instrument. The contestants claim that as one of the subscribing witnesses was dead, and as the testator signed by a mark, the will could not be proved. Code Civil Proc. §§ 2618, 2620. It is enough to say that Judge Crane, not a subscribing witness, proved that the testator made his mark. This is sufficient proof of handwriting. But we dо not- decide, as intimated in some cases, that a subscribing witness may not, in such a ease, prove the handwriting by a mark of the testator. It is not necessary to pass on that question. Mr. Brackett was called as a witness by contestants. He testified, under objection, to instructions given him, as counsel, by Smith in respect to drawing a previous will in which he was a witness. He then testified, under objection, that Mr. Andrews, the deceased subscribing witness to the will in question, came to his оffice, and said that the will of Mr. Smith (referring to that drawn by Mr. Brackett) was unjust to Mrs. Smith, and that he (Andrews) was going down to have another drawn. It is quite doubtful whether this evidence wаs admissible. It in no way affected the question of the execution of the will in question. Nor was it an