Wright, J.
James S. Seguine, the validity of whose will is the subject of this appeal, died at his residence, at Deep Greek, in the State of Virginia, on the' 11th of January, 1860, at the age of about fifty-five years. He was born in the county of Eichmond (Staten island), his family being an ancient one in the county, but, from early life, had resided, and was engaged in business, in Virginia. His business, was mainly lumbering on the Dismal and other southern swamps, but in connection therewith he built and owned shares in several vessels employed in the transportation of his lumber and other freight. This business was continued until his death. He left an only son, the appellant, who was a few months old at the death of his mother, in 1838. His other near relations were a sister, the widow of a Mr. Guy on, and a brother, Henry S. Seguine. The brother and sister always resided in Staten island, as did the son, who was reared in the family of the sister, the decedent, after the death of his wife, never marrying again, or keeping a domestic establishment. He had lodgings in Virginia, where he spent most of his time, visiting the North in the summer season; and, on such occasions, and when north on business, made his brother’s house on the island his home.'
The decedent had accumulated an estate, at his décease, of, probably, sométhing over $100,0001 With the exception of a farm on the island, formerly belonging to his father, purchased by him in 1858, and fitted up and improved at a cost of some $15,000, as a home for his- son, his property was principally personal, consisting of money invested in Virginia and at the North. ' By his will, executed in May, *6651859, some seven months prior to his death, and on his last visit to the Horth, after giving specific legacies to the amount of $2,000, he gave to his sister, Mrs. Guyon, an annuity of $500; to his son, James Henry Seguine, an annuity of $700, and also an estate for life on the homestead farm, purchased for him in 1858; remainder to the son’s children, if no children to his grandchildren, him surviving, with a direction to the executors to expend the further sum of $4,000 in improving the farm for the son’s use; and to the brother, Henry S. Seguine, the residue of 'the estate.
Ho point is made that the requisite statute formalities to sustain the execution of the paper as the will of the deceased were not duly observed; the only questions before the surrogate and heir being as to the testamentary capacity of the deceased, and whether the will was or was not procured by undue influence of the chief beneficiary. The bulk of the property, it is true, is given to the testator’s brother, and it may be conceded, that the will is a will inofficious, so far as regards his son. But if the son had been wholly disinherited (which he is not, but a moderate competency given to him), not in favor of the brother, but of parties, strangers in blood to the deceased, it would be no ground, of itself, for avoiding the instrument. The doctrine of inofficious testaments, invoked from the civilians, has no place in our law. A man has a right to make whatever disposition of his property he chooses, however absurd or unjust. If capacity, formal execution and volition appear, his will must stand. A “ disposing mind,” said Oeeswell, J., in Earl of Sefton v. Hapwood (1 Fost. & Ten. 598), “ does not mean that he should make what other people think a reasonable will or a kind will, because, by the law of this country, he has absolute dominion over his own property, and if he, being in possession of his faculties, thinks fit to make a capricious, harsh or cruel will, you have no right to interfere; that would be to make his will for him, and not to allow him to make it.” “ The right of a testator to dispose of his estate,” said Portee, J., in delivering the opinion of this court in Clapp v. Fullerton (34 N. Y. 196), “ depends neither on the justice of his *666prejudices nor the soundness of his reasoning. He may do what he will with his own; and if there he no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though the provisions are unreasonable and unjust.” (Grendall v. Grendall, 4 Hagg. Ec. 1; Wench v. Murray, 3 Curt. 623 ; Butler v. Barry, 1 id. 614; Peck v. Cary, 27 N. Y. 18.) If the deceased, then,. possessed the requisite testable capacity, and the instrument was the free emanation of his will, it is valid, and is entitled to probate; and it is incumbent upon us so to adjudge, much as in another forum we might be induced to regard the narrow provision for the son, in view of the decedent’s wealth, as unjust and undutiful. There are, therefore, but the two questions, was there capacity 1 and freedom from restraint ?
. 1. As to capacity. The evidence as to the general capacity of the deceased is but one way: The case is not a balanced one, or one where the evidence greatly preponderates on that subject. The deceased, as has been stated, had been actually engaged in lumbering in Virginia for over thirty years, and, according to all the' testimony, was an unusually shrewd and energetic business man. His mind was’ clear,, vigorous, and strong. He was also a firm man, decided, self-reliant. A witness characterizes him (and this was the tenor of all the proof) as a man of “ great capacity for business, remarkable foi his firmness, self-reliance, and tenacity of purpose.” That clearness, solidity and strength, were the general mental characteristics evinced by him throughout most of his life, is not questioned by the appellant. But it is insisted, that disease and intemperance, within the two years prior to his death, effected a change in his mental condition, and that when the will was made he was insane, or, if not properly insane, was imbecile. The suggestion, that insanity existed in any form, or that the testator’s mental faculties were perceptibly impaired at the time of the factum, is wholly unsustained by the proof. On the contrary, the proof establishes the fact, that, at that time, his mind was as vigorous and sound as it had ever been. The instrument was prepared by Lot C. Clark, Esq., for many years his legal adviser *667in relation to his affairs at the North. Mr. Clark was alone with him, in his room at his brother’s house, some two or three hours, conversing in respect to his property; receiving his instructions; getting his exact views in regard to the provisions of the will, his slaves, and the laws of Virginia and North Carolina as to them; and in drawing the instrument as it was finally executed. All the directions for drawing it were given by the decedent without a suggestion from any other person. He exhibited a will made by him the year before, which had been drawn by Judge Metcalf, the surrogate of the county, and suggested the alterations he desired made, assigning his reasons therefor. He named as witnesses, Dr. Edgar, for many years his attending physician when visiting at the North, and Judge Winant, a friend from boyhood, and'requested Mr. Clark himself to sign as a witness.' According to the testimony of Mr. Clark, he “ was as clear in mind and faculties as he had ever known him; ” “ his mind was perfectly sound and clear.” Dr. Edgar, long familiarly acquainted with his physical constitution, and habits, and mental characteristics, “ considered him of sound mind;” and Judge Winant, the other subscribing witness, concurred with them in opinion. Judge Winant, after the will was executed, conversed with him at large, respecting his health, and in’ reference to internal improvements, in which he was interested, in Virginia; in which conversation, he indicated no defect of mental capacity, but full intelligence. He subsequently dined with the family. In addition to this proof, eight witnesses, residents of Virginia, knowing him well for many years, testified, that, down to his leaving Deep Creek for the North, some ten days before the will, his mental condition remained as good as they had ever known it; and Dr. Anderson, called as a consulting physician three days after the will, represented his “intelligence to be perfect.” This evidence, which was wholly uncontradicted, tends to but one conclusion,—that, instead of the decedent being a person of permanently disordered intellect at the execution of the will, there were no sensible indications that his rather unusual powers of mind had even begun to decay. *668He was, it is true, broken in health, having from youth been a sufferer from gout, which was hereditary, and which at length caused an affection of the heart, and dropsy, the latter diseases developing themselves in connection in the spring of 1859. Such constitution as he had was nearly broken down, and, though death was not to be immediately apprehended, the issue, as the physicians who examined his case some three days after the will expessed it, “ was merely a question of time.” ■ But no one intimates, that his bodily infirmities had then, if ever, produced any mental disturbance, or enfeebled his intellect in any appreciable degree. Neither has the. suggestion any foundation, that indulgence in intoxicating liquors had then impaired his mind. It appears, that, although not totally abstaining, he had, for most of his life, been abstemious in the use of liquors. A year or two before his death, he indulged in a more free use of them, but not, apparently, to excess, at least, before the summer and fall after the will. In 1858, he spent the months of May, August and September at Bossville, where he could not have drank to any marked extent, for no one suggests that he was ever under the influence of liquor in the slightest degree. Prior to his visit to the North in 1859, he was shown to have been partially affected by it in two or three instances in Virginia, but was never seen intoxicated. Nor was he under its influence, to any extent, when the will was made. In view of these facts, there is no color for saying, that his indulgence in intoxicating liquors, previous to the faotvm, had affected his mind, or his capacity to make a will. Nor, if it were at all important, does the evidence warrant the conclusion, that his use of stimulants, during his stay and last illness, at Bossville, after the will, reduced his mind to a state of general incapacity for the performance of a testamentary act. Such a conclusion is at war with the general facts of the case. There is no pretense, that his drinking ' (however excessive it may have been) incapacitated him for business, or prevented him from attending to and controlling his business affairs. It indisputably appears, that his business operations went on as actively as ever, under his direc*669tion; and no matter relating to his affairs or property, north or south, however slight, any body ventured to touch, without his previous authority. Those who speak most unfavorably of his habits, represent him as constantly exercising memory, will, discrimination, firmness, and all the attributes of perfect intelligence. The habit of drinking undoubtedly grew on him'as he sunk under his complicated ailments, and it may have tended, in some degree, to weaken his mind; but, down to his departure for Virginia, some two months before his death, nobody pretends that he was imbecile. Indeed, the evidence distinctly indicates, that, up to this time, he retained nearly his full strength of intellect.
The will, then, is not impeachable on the ground of testamentary incapacity. There is no room' to doubt that, when ' it was executed, the testator was fully competent. Bodily disease may have abated some of the former elasticity of his mind, but it was in no way diseased or even in an incipient state of decay.
2. There being capacity, was the will the free act of the decedent, or was it the result of undue influence, exercised by his brother, the principal beneficary ? This latter question was not argued with any apparent confidence, by the appellant’s counsel, and I cannot well see how it could have been. Undue influence must be an influence exercised by coercion, imposition or fraud. It must not be such as arises from the influence of gratitude, affection or esteem, but it must be the ascendancy of another will over that of the testator, whose faculties have been so impaired as to subject him to the controlling influence of force, imposition or fraud. (Gardner v. Gardner, 34 N. Y. 162; Dean v. Negley, 41 Penn. 312; Small v. Small, 4 Greenl. 220 ; Trumbull v. Gibbons, 2 Zabriskie [N. J.] 117.) Moreover, the exertion of the influence, upon the very act must be proved, and it will not be inferred from opportunity and interest. (Carroll v. Norton, 3 Bradford, 320; Clapp v. Fullerton, 34 N. Y. 991.) I can discover nothing in the record that brings the case within these rules. The circumstances anterior to and attending the execution of the instrument are inconsistent *670with any other hypothesis than that it was the product of the decedent’s own will, and not of the force, fraud or undue influence of any other. The fact is unquestioned that he was a man of more than ordinary vigor of intellect, of great firmness, self-reliance and tenacity of purpose, and it is clear from the evidence, that he retained his unusual powers of mind down to the period of making the will. He was ■ not, therefore, in a condition to be exposed to undue influences. But the case is barren of evidence of any direct influence—much.less that improper influence which will vitiate a testamentary act — exercised by the brother to procure the will. It may be that the decedent was unjust to his son, the appellant, in the disposition of his property, and that the brother should not have been selected as the chief beneficiary, but there is nothing rising to the dignity of proof of any undue influence or contrivance on the part of the latter to effect the result. In its dispositive parts, affecting the son and the brother, the instrument was similar to one made by the testator, the fall previously, at Bossville, except that the annuity to the son was reduced from $1,400 to $700. It is possible that the brother knew what this will of 1858 contained; but there is nothing to base a conjecture upon that he interfered in any way to bring it about. As to the will in question, the proof is equally decisive as to non-interference on the part of the brother. It appears, conclusively, that the alteration of the will of 1858, by halving the son’s annuity, was in accordance with a design of the testator, conceived in Virginia the winter previously; a design and result over which the brother could have had no possible influence on the nature of the case. The instrument was drawn in the room of the decedent, he being alone with Mr. Clark, his counsel. The instruction- proceeded solely from him. The brother was not present at any time during the two hours spent in the act. He knew that the testator was making his will, as did the testator’s sister, Mrs. Gruyon, who was in the house at the time; but that he was any more cognizant of the contents of the instrument being executed than the sister, there is not the slightest *671proof. True, the factum was at his house, hut that was the decedent’s only home and resort at the North. There was some evidence, also, that he conveyed' the message to Mr. Clark to come and draw the will, hut his agency in respect to that message was not only natural, hut affirmatively shown to have been in obedience to the wish of the decedent conceived in Virginia before starting for the North.
In view of this state of facts, there is no ground for alleging that the decedent, in publishing the instrument and dictating its contents, was not acting of his own free, uninfluenced will and wishes.'
There is much evidence in the casé of matters transpiring at Rossville, subsequently to the will. An allusion to it is unimportant. The point of inquiry as to testamentary capacity and the exercise of undue influence or fraud is, before or at the term of the factum', subsequent occurrences cannot affect the legal aspects of the case.
I am of the opinion that the questions of fact involved were rightly decided by the surrogate, and that the judgment should be affirmed.
Judges Portee, Hunt, Parker and Grover, were also for affirmance.
Davies, Oh. J., read an opinion for reversal, in which Bookes, J., concurred.
Judgment affirmed.