By the Gourt,
Allen, J.
The will of John Goodhue, deceased, was propounded for probate by Oliver F. Ranney and Harlow Goff, the executors named therein, and was contested by the appellants for the want of testamentary capacity in the deceased, as well as upon the ground that its execution was procured by fraud and undue influence.
Over thirty witnesses were examined before the surrogate and testified at length to facts bearing with more or less force upon the questions involved, and showing the character, history and business capacity of the testator, his relations to and with the parties litigant up to and at the time of his death, and the relation of the litigants to each other and the degree of their intimacy with the testator, and their connection with the will and its execution. While it is difficult to grpiip to-. *62gether the facts and circumstances found and relied upon either to support or impeach the will, it is impracticable to give anything like a perfect analysis of the testimony. Only the more prominent facts can be referred to, and the many minor circumstances which color and give character and peculiar significance to the main facts must be passed by.
John G-ooclhue, the testator, died in December, 1857, aged eighty-one years, leaving him surviving as his heirs at law two daughters, Clarissa Lake, one of the appellants and the wife of her co-appellant Eansom Lake, and Hannah Eanney, one of the defendants and the wife of Oliver F. Eanney, one of the executors named in the will. The wife of the testator died in January, 1855, and the alleged will bears date and was executed in July of the same year. Mrs. Eanney was married in 1841, and Mrs. Lake in. 1853. Mr. and Mrs. Eanney came to reside with the testator in th'e fall of 1844, and' continued to reside in the" same house with him up to the time of his death. The evidence as to his business capacity in early life, the effect of disease and of age upon his mental faculties, and his testamentary capacity at the time of the execution of the will, and his freedom from a subjection to restraint, coercion, or undue influence of any kind from those by whom he was surrounded, is in this, as in most cases of this character, somewhat conflicting. We are so constituted that our social relations and our sympathies and our prejudices influence our perceptions and bias our memories, as well as our opinions and judgments. Hence two individuals of equal intelligence, integrity and opportunity for observation and judgment, will observe and note facts as it were .through entirely different mediums, and honestly report the facts with different colorings, and arrive at directly opposite conclusions, or conclusions essentially differing from each other. There is no class of cases in which the evidence is necessarily less satisfactory and conclusive than those involving the validity of acts depending on the mental capacity of the actor. With the witnesses before the judge, with ample op*63portunity to test their integrity and judge of their competency to speak understanding^ of the matters to which they are called, the judgment may he far from satisfactory even to him who pronounces it. The witnesses are ordinarily not experts, and they are selected because they can testify to and relate facts, or circumstances, or opinions favorable to the party calling them, and courts and juries must determine from the imperfect light which these isolated facts, and perhaps partizan opinions, furnish. The court of review has not the advantage of inspecting and personally examining the witnesses, and can only try them and weigh them by the record of their testimony; and if the judgment of this court was final, when sitting in judgment upon the decree of an intelligent surrogate, I should hesitate before I would agree to reverse it in a doubtful or- balanced case. But as the only effect of a reversal is to submit the question, upon such evidence as may be adduced, to another tribunal and that a jury of twelve men, we may scrutinize more freely the evidence before the surrogate and his adjudications upon it. The testator was a farmer, competent to manage his farm and transact his' ordinary business and make a good bargain up to 1837, when he had a severe fit of sickness, which “ affected his activity and energy—diminished them.” His former son-in-law, the husband of a deceased daughter, a physician, testified that “ from the time of his severe sickness, down to 1845, he got back in some measure to the point where he started from, but never entirely recovered after this fever. From the time of this sickness down to the death of his wife his health was declining, or his body was breaking down. I think his mind failed him ; he did not retain his mental capacity for doing business ; his judgment failed in some measure ; his mind weakened; might be called a weakness of mind. Was easily affected to tears. Little things overcame him.” In 1847 he had a stroke of paralysis, which disabled him, and the same physician testified that since he had this fit he has not, in my judgment, been capable of doing busi*64ness. This was in February, 1847. From the fall previous to the death of the testator’s wife, down to 1849, he was not capable of doing business, in my judgment. Testator, I should rather think, was not capable of doing ordinary business from spring of 1844 to 1847.” There was considerable evidence of the same general import, and much that conflicted with it. But that to some extent after the illness of 1837, he was enfeebled in body and mind, I think cannot he questioned upon the evidence. Heither do I think that it can be fairly claimed that the testator was mentally incompetent to make a will; that he was not of sound and disposing mind and memory to the extent held necessary for testamentary purposes. In other words, he had, as it would seem, “testamentary capacity” at the date of the will. He was an ignorant man, had hut little knowledge of figures, and kept no accounts. For all purposes of arithmetical calculation and written memoranda, he always depended mainly on others. In 1844, and before the death of his wife, he is described by one of the witnesses as “very childish,” and “easily influenced by others and he and his wife were anxious to get some one to live with him and attend to his business, and was advised to have one of Ms cMldren come and live with him. He is also described as “ forgetful” at this time, and according to the testimony of many of the witnesses, exhibited many evidences of senility and mental debility, as well as bodily infirmity. Eanney and his wife were invited to come, and did come up from Hew York, .and- take up their residence with the testator, on account of the infirmities and inability of the latter, and to take charge of his business and affairs generally. The wife of the testator died in the J anuary following, and her death seriously affected his health and spirits. ' From the time he came to live with the testator, Eanney had the general charge and control of the business, and exercised a very decided influence on the testator, and most business matters, and all of any importance were coim mitted to him.
*65At the time of making the will the testator was worth, in real and personal property, from $8000 to $9000; and by the will propounded he gave the bulk and all but $1000 of it to Mrs. Ranney, giving to his executors, of whom Ranney was one, the remaining $1000, the interest of which was, when and only when the executors should think necessary, to be applied to the support of Mrs. Lake, and if she died during the life of her husband, the principal was bequeathed to her lawful issue, and if she died without issue, then to Mrs. Ranney. The will was drawn by Ranney, and its execution witnessed by Robert J. Norris, in whose store Ranney was employed as a clerk, and by a fellow clerk of Ranney, a lad about 15 years of age, who were called from the store about two miles distant of a Saturday afternoon, for that purpose, and no other person was present. Ranney was about the house, and came to the door of the room once or twice. The will was not read by or to the testator in the presence of the witnesses, and they had no knowledge whether or not its contents were understood by him. There is no evidence in this case that the will was ever read to the testator, or read by him, before its execution, and the only evidence that it was read to him at any time is his declaration, as late or later than 1850, testified to by a servant in the family, that he had heard it read, and it was as he thought it was ; and the same witness testifies that in 1854, he heard the testator say that he would like to have the will read. By whom read, or when, or whether read correctly, does not appear. 'Mrs. Lake was not at the house of her father during the summer of 1845, and the contents of the will were concealed from her.
Considerable evidence was given upon either side to show the state of feeling between the testator and Mr. and Mrs. Lake. The respondents proved by one witness that at one time the testator said that Lake was a drinking man, and he did not like him, and that his daughter married him against his will; and the same witness testified that the testator *66called Lake a drunken sot, and that the testator appeared to think well of Mrs. Lake. And by another witness it was proved that Mrs. Lake lived at home up to the time of her marriage, and was on good terms with her father ; and it is in evidence that the testator alleged ás a reason for not inviting Lake to come and live- with him rather than Eanney, that Lake’s father required his services and attention ujron his business. Eanney came to live with the testator under an agreement by which he was to receive for his compensation fifty acres of land in the division of the estate, beyond the share and portion which would otherwise pome to him in right of his wife. In 1844 or 1845 the testator said that he had given the fifty acres to Eanney, but whether he would remain with him or not he did not know, and what was left of his property he intended for his children; and that he intended to leave his affairs so there could be no chance for a quarrel for his children. To another witness, in speaking of the arrangement with Eanney, he said he was to give him a deed of fifty acres of land, and he, Eanney, was going to take care of him, and that he should keep the remainder of his farm as long as he lived, and then intended to have it divided among his children. At other times he said he had made a will, and had given fifty acres of land to Eanney and divided the rest of his property equally between his two daughters ; that his property was to go to both his children; and that he knew no difference in his children. To a nurse of Mrs. Eanney he is proved to have said that Mrs. Lake had got all his property she ever would get, unless she came’to want.
Without going more in detail into the evidence, it is established :
1. That by the will propounded the division of the estate of the testator between his two daughters, Ms only heirs at law, is grossly unequal.
2. That the will was prepared and witnessed by Eanney, who in right of his wife, is the principal beneficiary; she being entitled by its terms to the bulk of the estate and con*67tingently and in a measure dependent upon the discretion of her husband, to the whole estate.
3. That Eanney, who prepared and now propounds the will, at the time of the execution of the will, and from that time to the death of the testator, was a member of the family of the testator, and held a fiduciary and confidential relation to him.
4. That the testator, by reason of his intimities, mental and bodily, as well as his ignorance, was liable to be imposed upon by one capable of practising a fraud upon him in respect of the contents of his will and the disposition of his estate.
5. That the will was executed under circumstances somewhat peculiar and suspicious, and without all the cautions and safeguards usually adopted, and without such as the propounder of the will should, with reference to his own reputation in the circumstances in which he was placed, to guard against misconstruction have regarded, to the end that the witnesses might know that the writing published -as a will was in truth the voluntary and unbiased act of the testator, properly and fully declaring his intentions.
6. There is no evidence that the will had ever been read to the testator, or that he knew the contents thereof.
7. There is no evidence that the testator ever directed, or gave instructions for, the preparation of the will as prepared and executed by him.
8. The evidence is not satisfactory that the testator intended to distinguish between his daughters, in the distribution of his property, or that he knew that he had done so by the will prepared by Eanney and executed under his supervision, and perhaps it might be added that there is some evidence that he supposed the provisions of the will were different from what they proved to be.
. In ordinary cases it is sufficient for the individual offering a will for probate to prove a compliance with the formalities prescribed by statute; but when circumstances of suspicion *68exist, more is required, and proof should he given to satisfy the tribunal that is called to pronounce upon it, that the paper offered is in truth the will of the testator, declaring his intentions. There should be some affirmative evidence that the testator knew the contents of the will, and that it expressed his real intentions—that his mind went with the will.
The proof most usually given, because the most accessible, is of instructions for the preparation of the will, and of previously declared intentions consistent with the will, together with evidence of the reasonableness of its provisions. But there is no line of evidence prescribed, and any evidence is competent, as well as sufficient, which satisfies a court or jury that the will was in truth executed by the testator with full knowledge of its contents, and voluntarily executed, without restraint, coercion or undue influence of any kind.
In this case the fiduciary relation of Banney to the testator, his agency in drawing the will and procuring its execution, and the beneficial interest of himself and family under it, created a presumption of fraud and undue influence, which could only be overcome by some satisfactory evidence that there was no fraud practiced, or undue influence exercised,' over the testator.
When a will containing a devise in favor of the medical attendant and confidential adviser of the testator, is drawn by the devisee himself, it is said it would be more satisfactory to the court to have direct evidence that the testator gave instructions for drawing the will, or that it was read over to or by him; yet that such evidence is not indispensable, but that there must be some affirmative evidence that the testator knew the contents of the will, and that it expressed his real intentions. (Crispell v. Dubois, 4 Barb. 393.)
In another well considered case it was held that when there was no evidence that the testatrix had anything to do with the preparation of the will or that she ever read it or heard it read, or that its contents were ever even stated to her, *69proof that she knew what was in the paper she signed is imperatively demanded before the same can be admitted to probate; especially when it affirmatively appears that the mental faculties of the testatrix had become seriously impaired by the use of strong drink and opiates. (Burritt v. Silliman, 16 Barb. 198.) The case was reversed by the court of appeals, but upon a question of evidence not touching the principle for which the case is now cited. (3 Kern. 93.) See also Van Pelt v. Van Pelt, (30 Barb. 134.) Where a testator, and a devisee under his will, by whom the same is drawn, stand in the confidential relation of client and counsel, that circumstance alone calls for great circumspection, and a will executed by a person who was prostrated by sickness, and in a state of mind in which he readily yielded or assented to the suggestions of others, in favor of his counsel, whose influence over him was very great and who drew the will, was held invalid, in the absence of evidence to show that it was in accordance with previous directions, or that any directions were given, or that the testator had previously designed to give him anything. (Newhouse v. Godwin, 17 Barb. 236,) affirming the decree of the surrogate of Kings’ county, refusing to admit the will to probate. And see Clark v. Fisher, (1 Paige, 171;) Same v. Sawyer, (2 Barb. Ch. R. 411; S. C. 2 Comst. 498.)
In every case the onus probandi lies on a party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will and testament of a free and capable testator.(Barry v. Butler, 2 Moore’s P. C. 481.) We are also referred to Seoular v. Plowright, decided in 1856 by the judicial committee of the privy council in England, and reported in the Law Times of January 3, 1857, (28 Law Times, 194,) the eminent author and jurist Dr. Lushington giving the opinion. It was there decided—and with the decision all the cases in our own courts agree—that in ordinary cases, where there is execution and capacity, the validity of a will is established, but *70when the will is prepared by the party principally benefited an exception prevails, and it is necessary to prove that the testator had full knowledge of the- instrument and its contents, and executed it "freely and without undue control, especially if the circumstances are suspicious. The facts of that case differ somewhat from that at bar, but not so essentially as to distinguish the two cases in principle. But the rule as recognized and applied is a general rule applicable to all cases coming within it, and is decisive of this case. It may be said in this as was said by Dr. Lushington in the case cited, that under the circumstances so much suspicion rests upon the whole transaction that it is imperatively necessary for the court to be satisfied that the deceased was a perfectly free agent and had a knowledge of the contents of the instrument he executed. The case stands thus: The will is preceded by no declaration of any intention to execute an instrument of that' tenor, nor, after its execution, is there any conclusive or satisfactory evidence of a recognition of its contents. Indeed there is considerable evidence that he was ignorant of its contents. The will is propounded by the person principally benefited, and the contents of the will were concealed from every one, during the life of the testator. The attesting witnesses do not show any knowledge by the deceased of the contents of the will. Under these circumstances, and with the proof in the case of the control and general influence of Banney over the deceased, the order of the surrogate admitting the will to probate must be reversed and issues settled to try the questions arising upon the application to prove the will , and the issues when settled, must be tried, upon the motion of either party, at a circuit court to be held in Oneida county. The costs of this appeal to the appellants may abide the event of that issue, and be paid out of the estate to the one finally successful. (30 Barb. 144.)
[Onondaga General Term,
October 2, 1860.
Allen, Mullin and Morgan, Justices.]