The Surrogate.
The first point for consideration, relates to the jurisdiction of the Surrogate of New-York to take proof of this will. The deceased was an inhabitant of the State of New Jersey, where he died. The petition is defective in not stating the facts requisite to give jurisdiction, but it was conceded on the argument, that it might be amended, provided the facts which ought to have been stated in it, appeared from the evidence. It is not proved that the decedent died leaving assets in this county, or that since his death, assets have come here. Nor does it appear that the Surrogate of any other county has gained jurisdiction. I have therefore no authority to take proof of the will, as a will of personalty on the one hand ; nor on the other am I excluded from taking proof of it, as a will of real estate, provided in the words of the statute (2 JR. 8, 3d ed.,j? 26, § 46, Sub. 5), “ any real estate devised by the testator, shall be situated” in this county. Where a devise is general, without particular specification or description, it may not only become necessary for the Surrogate to a°scertain that the subject of it lies within his county, but if that is controverted, to hear testimony and determine the fact before admitting the will to record. On that point, I do not wish to express an opinion, the case not requiring it. But where a will on its face purports to devise real estate in the county, shall the Surrogate try an issue as to the testator’s title, as a preliminary to the proof of the will ? This is not required by the letter of the statute. The jurisdiction is made to depend upon the situation of real estate “ demised” by the testator. This cannot mean a valid devise,, for the very object of the proceeding is to ascertain that fact, and it could not, therefore, be required as a pre*416requisite to jurisdiction. Hor does the statute put the jurisdiction, upon the situation within the county of real estate owned by the testator. And yet, that is what the contestants really insist upon. The power to take proof of the will is not based on the title of the testator, but on the devise he is claimed to have made, and I think the requisitions of the statute are fully met, by a will purporting on its face to devise real estate situated in the county. The will propounded for probate, contains a devise in these words: “Ido give, devise and bequeath, unto Hartman Yreeland, &c., all my real estate situated in the county of Hamilton, State of Hew-York: Also, all my real estate situate in the city of Hew-York, on Oliver Street, Cherry Street, Water Street and South Street, in the Fourth Ward of the said city of Hew-York: Also all other real estate situate in the city of Hew-York, and in any other place or places belonging to me : Also, all the real and leasehold estate belonging unto me situate in Beaver Street, in the said city of Hew-York; the said real estate and leasehold estate, being devised and given unto me, by Elizabeth Lewis, now deceased.” The practical effect of the doctrine, that the ownership of this property may be disputed, as ‘material to jurisdiction, may be seen from the fact, that the counsel for the contestants relies upon a trust deed executed by the decedent, the same day of the execution of the will, to show that the very real estate mentioned in the will and claimed to be devised, was conveyed by the deed, and that the decedent had no real estate in the county at the time of his death. The counsel for the executor contends on the contrary, that under a proper construction of this trust deed, there remained in Gautier, the grantor, a legal estate in the reversion, subject to the execution of a power by one of the trustees, after his death. In the view I take of the statute, it is not necessary for me, as to this branch of the case, to pass upon the effect of the trust deed, the authority of the Surrogate to take proof of the will and admit it to record, being grounded, not upon the title *417or ownership of the property, but upon the presentation of a will, purporting on its face to devise real estate in this county. (See 2 S. S.,p. 318, § 1, Sub. 1.)
It was also urged on the argument, that if the will was validly executed, it was revoked by the conveyance made by the decedent, on the sam'e day, of all the property described in the will. So far as intention is of importance, which, béfore the Eevised Statutes, was a criterion in cases of implied revocation, there can be little weight in the objection, for it cannot be seriously contended, that a will and a. deed, executed almost, if not quite, simultaneously, and as to their general purport, in harmony with each other, so that they may fairly be considered as parts of the same transaction, are notwithstanding, to be construed in such a way, that the deed is to nullify the will, on the ground that it shows an intention to revoke a solemn act, just consummated a few minutes before. The reasonable conclusion would be just the other way; namely, that instead of contemplating a revocation of the will giving the estate to Yreeland after his death, by a trust deed securing the same estate to Yreeland on the same contingency, the instruments, if valid, were both intended together, to be a complete and effectual disposition of the decedent’s entire property in favor of Yreeland, by a double mode of assurance. The Eevised Statutes have undertaken to dispose of the whole subject of implied revocations. The Eevisers in their notes, justly remark, that the “ arbitrary rules and subtle refinements” on the doctrine of implied revocations, had proceeded to such a degree as to be “ a fruitful source of difficult and expensive litigation,” and “ to be constantly applied, not to carry into effect, but to defeat the intention of testators.” In suggesting amendments to the existing law, they refer to a case somewhat similar to the present. They say, “ But we have not yet reached the climax. A conveyance or assurance after the publication of a will, defeats the will, although made with the avowed intent of confirming it. A man made a will and devised
*418certain estates to persons named therein; he afterwards, by deed, conveyed the same lands to. trustees for the use of the persons named, and for the purposes declared in his will; and it was held, for a technical reason, that the will was revoked by the very act that recognized its existence, and was designed to establish it. (Hussey's Case, Moore’s Rep., 789; Ambler, 215; 3 R. S., 2d ed.,p. 632.) The 39¿7i Section, 2 R. 8., 3d ed.,p. 125, recognizes the old rule of theOommon Law, as to the effect of a subsequent conveyance or alteration of the estate of the testator, to the extent, that where his estate or interest in property previously devised, or bequeathed, is “ wholly divested,” the conveyance may operate as a revocation; providing, however, that where the estate or interest is not “ wholly divested,” it shall not operate as a revocation, unless in the instrument by which such alteration is made, the intention to revoke is expressly declared. The succeeding section (40) also provides, that if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen. The provisions of the trust deed executed by the decedent at the same time the will was made, are not inconsistent with the will, but in harmony with it,—nor can it be strictly said, that his estate and interest in the property previously devised, was wholly divested, for he not only retained a beneficial interest for life therein, but a power was given to one of the trustees to be executed after his death, subject to the execution of which, the estate of the grantor would descend to his heirs or pass to his devisees. I have had some doubts, whether the sections of the statute referring to the revocation of “ devises and bequests,” as distinguished from those relating to the revocation of “ wills” were not intended for the guidance and direction of Courts of Construction, and not for the Probate Court; but that *419point is not material for determination, in the view I take of the construction of the 39th and 40th Sections, in their connection with the provisions and design of the deed of trust. And if I have erred in the opinion, that the trust deed did not “ wholly divest” the decedent of his estate and interest in the property devised, it has only led to the disposition of the case on its merits, independently of a technical rule.
I approach, then, the real substance of the controversy. As to the execution of the will, I think the essential ceremonies required by the statute were substantially performed, and shall, therefore, pass without delay to the evidence offered to impeach the capacity of the decedent, and to establish the exercise of undue influence over him, by the proponent Yreeland. The decedent was an orphan from infancy, his father having died before he Was born, and his mother when he was two years old. From that time, he was taken in care and brought up by Mrs. Lewis, a distant connection, with whom he resided or made his home until her death, in February, 1846. She left him by her will, a large estate in the city of New-York, producing an income of between three and four thousand dollars a year. Mr. Yreeland and Dr. Bobeson, were appointed executors, but the latter took no active part in the management of the estate, while the former was the acting executor, collected the rents, and had the general charge of affairs. Mr. John Leveridge, who had been Mrs. Lewis’s counsel in her lifetime, for many years, continued to act as counsel for the executors, and particularly for Mr. Yreeland as executor. The decedent received no part of the rents of the real estate, the interest or principal of the personalty, except through Mr. Yreeland, and the accounts of the latter as executor never were settled. On the eleventh day of January, 1847, Gautier executed at Mr. Leveridge’s office, the instrument propounded as a will, wherein he devised and bequeathed to Mr. Yreeland, the whole real and personal estate, given him by Mrs. Lewis’s will,1—-and at or about *420the same time, in conjunction with Mr. Yreeland and Mr. Leveridge, he also executed a deed, by which he conveyed his whole estate to them in trust (after paying Gautier’s debts, the expenses of managing the property, and of certain ejectment suits which had been brought for its recovery against Gauti'er), to appropriate the income to Gautier’s use and benefit for life, and on his decease, for John Leveridge to convey the same to “ Hartman Yreeland, his heirs, executors, administrators and assigns forever.” The deed and will were drawn up by the counsel for the executor, and gave the entire bulk of the estate, after Gautier’s decease, to the executor, when still in the active management of the estate, and never having accounted with the cestui que trust. Such a transaction cannot be supported without very satisfactory evidence of its entire fairness. By the civil law, if a person drew a will in his own favor, it was void (Dig. Lib., 48; Lib., 34.), in conformity to an ordinance under Claudius, that the writer of another’s testament, should not mark down a legacy to himself. (Suet. Ner., 17.) The principle of this rule is applicable to all cases of testamentary procurement, especially where the parties obtaining the will are in fiduciary relations with the testator; but without adopting it in all its extent, the reason of it is suffered so far to prevail in our own law, that Courts regard the circumstance as creating a presumption against the act, and rendering necessary very clear proof of volition and capacity. Sir John Hicholl, in' collecting the cases bearing upon the effect of the. existence of such fiduciary relations between the parties, as guardian and ward, client and attorney, principal and agent, trustee and cestui que trust, in the elaborate judgment which he pronounced in Ingram vs. Wyatt, 1 Hagg., 385, says, these cases “ show, how extremely jealous the law is to protect the unwary against undue influence and control. Where that relation of confidence exists, and where the party frames the instrument for his own advantage and benefit, every présumption arises against the transaction. *421As in the case of an interested witness, it is not necessary to prove falsehood,—a Court of law will not hear him at all,—so in the case of such an executor, it is not necessary to prove fraud and circumvention; he must remove the suspicion by clear and satisfactory proof.” This case was reversed on appeal, not for error in law, but on the ground that the facts disclosed in evidence, established capacity and volition, and sufficiently rebutted the suspicion arising from the fiduciary relations of the parties, the testator and the executor. (3 Hagg., 466; vide Walmsley vs. Booth, 2 Atkyns, 25; Cray vs. Mansfield, 1 Vesey, sen., 379; Oldham vs. Hand., 2 Id., 259; Gibson vs. Jeyes, 6 Vesey, 266; Coles vs. Trecothick, 9 Vesey, 246; Hatch vs. Hatch, Id., 292; Huguenin, vs. Baseley, 14 Vesey, 273; Griffiths vs. Robins, 3 Madd., 191; Paske vs. Ollat, 2 Phill., 323; Billinghurst vs. Vickers, 1 Phill., 193; Countess of Portsmouth vs. Earl of Portsmouth, 1 Hagg., 366.) In Middleton vs. Forbes, 1 Hagg., 395, a deed had been procured from the testator, subsequent to the execution of the will, and though the circumstances were much different from the present case, as to the interval that elapsed between the execution of the two instruments, and especially as to the fact, that the deed had been set aside for fraud, before the will was propounded, yet the remarks of the Judge, Dr. Calvert, in respect to the mutual bearing of the two instruments, are not unworthy of attention in this connection. He said, “ a deed is also obtained for the same purpose, and though the setting aside the deed does not establish fraud (with regard to the will), yet it is a controvertive circumstance. The ineptitude of such a bargain, might be a sufficient ground to set aside the deed, but not the will, which does not take immediate effect. Yet, the obtaining such a deed, does come strongly to corroborate the fraud of the will; it shows that the testator was liable to imposition, that he executed a deed which he ought not to have executed, and that the Middletons obtained a deed they ought not to have obtained;” “ they show that they *422thought the deceased liable to imposition, otherwise they would have trusted him and not got the deed. They were afraid of the continuance of his affection, lest he should fall into other hands.” It is impossible to read the testimony in the present case, without regarding the will and the trust deed, executed by Gautier on the 11th of January, 184Y, as a single transaction. By the will, the estate he derived from Mrs. Lewis was given on his decease to Vreeland, and the latter, in conjunction with Mr- Beveridge, were appointed executors. By the deed the same disposition was made, or rather secured, and Mr. Vreeland and Mr. Beveridge were appointed the trustees. Both instruments were drawn by Mr. Beveridge, and executed almost at the same time. Mr. Vreeland Was required to be there to sign the deed as a necessary party, and he was there. The concurrent presence of all three was requisite, and it took place. Mr. Vreeland attributes his attendance at the office to “ some little business with Mr. Beveridge;” denies all knowledge of the will, and says, “I did not know this deed was going to be executed that day before I went to Mr. Beveridge’s office. I first heard of the deed when I got there. That was the first time that I heard that there was going to be a deed drawn.” “Ihad no conversation with him (Gautier) at Mr. Beveridge’s office before the deed was executed, that I recollect. I never talked with him any where else on the subject of the deed, to my recollection.” “ Before I went there that day, I had no reason to believe, nor did I know or believe that he was going to execute a deed of trust.” Gautier was to leave the next day in a steamer for New Orleans, and after the deed was executed, Vreeland gave him in Mr. Beveridge’s office the greater part of $500 in bank bills, and the rest at his store the next day. He says, “ I had made no arrangement to give Gautier this money before I went to Beveridge’s office. The arrangement as to the money was made at Mr. Beveridge’s office.” “ Gautier told me then he was going to New Orleans, and he wanted $600, and I must *423let him have it. He said he had engaged his passage with a parcel of gentlemen, who were going out, and I must let him have the money. I told him he had better stay and not go there. He said he had engaged his passage with those gentlemen, and must go, and would go. Those gentlemen were going, and he had agreed to go with them. That was all he said. I said nothing further in reply. I tided to persuade him not to go, and he said he would. Then I handed him the money. This was all after the deed was executed.” Again, “ Gautier before that day never asked me for money to go to New Orleans with. He had not talked with me before that day on the subject of going to Hew Orleans. I think that day was the first I heard' of his going to New Orleans.” “ I first saw Gautier on the day this deed was executed in Mr. Leveridge’s office. I do not recollect that I saw him on that day at any other place except there at Mr. Leveridge’s office. I cannot say whether I saw him the day before the deed was executed, or what was the last time I saw him before the day the deed was executed. I first saw him at Mr. Leveridge’s office that day, about one or two o’clock, or perhaps later. I do not remember the exact time. I was in the habit of going to Mr. Leveridge’s office almost every time I came in the city, on account of the business he had on hand.” Again, “ I did not call at Stelle’s under the Museum for Gautier the day the deed, Exhibit A., was executed. I never saw him at Stelle’s but once, and that was after he came from New Orleans “ I never saw him at that place but once or twice. This was after he returned from New Orleans. Then I stopped at Stelle’s for him at his request, to take him with me to my house. He asked me to stop there for him in the morning. I am sure I never saw him there before he went to New Orleans. I never knew Mr. Stelle before Gautier went to New Orleans, except that Stelle came to me with a small bill against Gautier. This was a few days before Gautier went to New Orleans. I accepted the bill, and paid it about *424two weeks after Gautier went. This was the first time I knew Stelle.”
It is thus quite apparent that Mr. Yreeland makes a thorough denial of any knowledge, previous to the 11th of January, of Gautier’s intention to go to the South, and to make the deed of trust, and likewise of any concert of action or previous arrangement in regard to the meeting at Mr. Leveridge’s office, and the payment of the money. He also denies any knowledge of the execution of the will till after Gautier’s death. To get a clear view of the accuracy of these statements, it is necessary to take the matter up from the beginning. Towards the close of the year 1846, the decedent formed the design of going to Mexico, where hostilities were then existing, and' seems to have made an effort to enroll a company to go with him. The affair ended in a determination to proceed to the South, and about the beginning of January, 1847, he took- measures to prosecute this plan. Money, of course, was the primary requisite, and his uncle Yreeland the person to apply to. At that time Mr. Yreeland was in business in the city of Hew-York, and came to the store every day, except Sunday and Monday. He had been absent at Trenton for some time, and thinks he returned a day or two, or three, before the deed was executed. He does not recollect whether or not he saw Gautier after his return, before he met .him at Mr. Leveridge’s office on the 11th of January.
Mr. Eobinson, a witness called by the executors, states that Gautier stayed at his house near New Brunswick, in January, 1847. “ He wanted to leave to execute papers at New-York of great importance, he said, but there was a heavy snow-storm, and he could not leave. Friday he left. I took him down to New Brunswick. He said he had some papers to execute that day, that he must come. I saw him into the 12 o’clock cars for New-York.” He said he was going to Mexico, spoke of his uncle, Mr. Yreeland, as one of the only “ two real friends” he ever had, *425said that “ he had, or was going to make his will,” and “ his intention was to leave the whole of his property to his uncle who had been so kind to him.” Previous to this Gautier had been staying at a public house in Mew Brunswick several months, and had made an effort there to get up a company for Mexico.
Mr. Yan Morden, another witness called by the executors, states .that he met Gautier on the Jersey City ferryboat, in January, 1847, the Sunday afternoon prior to his sailing for Mexico, and he told him “ that his uncle Hartman had used his influence to prevent his going*” and when asked about his lawsuit, said in reply, “ about his property, that was all fixed right.”
Mr. Embury, a witness called by the executors, says that “ for three or four days before he went” to Mexico, he met Gautier every day at Mr. Yreeland’s store in Yesey Street“ Yreeland was at the store some of the times during the last three or four days when I met Gautier there. I may not have seen Yreeland at all then. It may have been within a week or two ; but I think I saw Yreeland once. Gautier* a day or two previous, asked me to ride down to the ship with him; asked me whether I would not see him off to Mew Orleans. Two or three days before that he talked about going to Mew Orleans, but not in the presence of Yreeland to my knowledge. Yreeland told me he was going, after it had been arranged that he should go. This might have been within the week before he went. I understood Yreeland was to furnish the funds. All that Yreeland said was, that he was going to Mew Orleans, and I think he said he would furnish the means.”
Mr. Demarest, called by the executors, was, in 1847, a partner of Yreeland, and he says, “ I recollect when Gautier went off to Mew Orleans or Mexico: within a week before that I saw Mm in Yreeland’s store. I tMnk Mr. Yreeland said he was going to give Gautier some money; he wanted to go away, he said, to Mew Orleans, I think. *426Gautier said he was going to Mexico. I should’ not think it was a week before Gautier left, Yreeland told me this.” Mr. Stelle, a witness called by the contestants, says, that the decedent was in the habit of coming to his refectory ; he boarded in the summer of 1846, with witness’s brother at New Brunswick, came to New-York very often, ate and sometimes slept at his house. He says, “ He was at my refectory the day before he left in the steamer. I know Hartman Yreeland. He was at my refectory, I think, the day before Gautier left. He had also been there a number of times before that, I do not recollect how often. Yreeland and .Gautier were at my refectory together, the day before Gautier 'left. I did not notice their business, nor what they were doing together. I think they took a drink together. This was about twelve o’clock; it might have been a little after or before; it was about the middle of the day.” Again, u He (Gautier) told me his uncle Yreeland was to let him have money, had promised him money to go to Mexico. Mr. Yreeland told me Gautier had been after him for money to go to Mexico with. He was opposed to his going, said he had tried to persuade him out of the notion of going, and requested me to do the same thing. This was only a few days before Gautier left. He said hé should have to raise money, for Gautier was determined to go“ the day before Gautier sailed, I saw Yreeland and Gautier go away together from my house in the morning ; this was the middle of the day.” “-When Gautier and Yreeland left my place, about 12 o’clock the day before Gautier sailed, Daniel had been drinking a good deal, and was a little excited with liquor. Gautier came back to my house that day about sundown.” Mr. Stelle had a bill against Gautier, which Yreeland accepted, January 9, 1847. Yreeland says, “ The amount of the bill was $34, It was an order on me by Gautier. I don’t know what it was for. Gautier came down and said it was all right.” Mr. Stelle also states that he thinks Gautier went with *427him, that he asked him to walk down to Vreeland’s store, where he presented the order.
Mr. ¡Newell testifies that' he saw Vreeland at Stelle’s, the day Gautier left, and once before. That a short time before Gautier left, he went with him to Mr. Vreeland’s residence at Bergen, as Gautier said, “ to arrange money matters for going to Mexico.” On reaching Vreeland’s house, there was a conversation between them, Vreeland urging Gautier not to go, and the latter saying he would. “ I heard Vreeland observe,” he says, “ that if he must go, or was determined to go, he must furnish him with the capital.” Freligh, another witness, fixes this visit on the 11th of January, but why he is so accurate as to the date does not appear. The time of leaving he puts at 4 or 5, P. M., which is hardly consistent with other circumstances.
Mr. John Beveridge states that Gautier called on him some two or three days before the deed was executed, and said “ he was going to Mexico,” that “ he had been in pursuit of his uncle” to Trenton, and missed him; “ he then returned to the city, and saw Mr. Vreeland.” He is quite certain that the day the deed was executed, Gautier came alone to the office, and thinks that the deed was executed after the will. Mr. Benjamin Beveridge, a witness to the will, thinks Mr. Vreeland was present at the execution of the will, that he was in the office when Gautier came in, and though he cannot be positive, thinks they came together. Mr. Appleby, the other subscribing witness, thinks he stayed there till Gautier went away. He did not know Mr. Vreeland, nor recollect seeing him there when the will was executed. Mr. Palmer, the witness to the deed, and who took the acknowledgment, recollects that Mr.,Appleby was present at the time. Mr. John Beveridge thinks the decedent left in the steamer that afternoon or the next day. Mr. Vreeland puts his departure on the 12th or 13th, and the probability is that it was the 'former date. Several witnesses prove that the evening before he left he was at Stelle’s, in possession of several *428hundred dollars, and a good deal in liquor, so that his friends prevailed on him to leave the money with Stelle till the next day. Stelle says he came back to his house that day about sundown.
The eleventh of January, 1847, was on Monday, a day on which, at that time, Mr. Vreeland was not in the habit of coming to the city. The day before,- Sunday, Gautier, on the ferry-boat, told Van Harden that his uncle had used his influence to prevent his going to Mexico, and the day before that, Saturday, when Stelle’s order was accepted, Gautier and Vreeland met at the store in Vesey Street. If Gautier sailed on the 12th, the eleventh was the day he left Stelle’s, after drinking somewhat, about noon, in company with Vreeland. The deed was recorded ten minutes past three o’clock that day. Is it more probable that Mr. Vreeland was at Mr. Beveridge’s office with form hundred dollars in his pocket on the 11th of January, the day before Gautier was to sail, without any previous knowledge that. Gautier was going to the South, and was about to execute a deed of all his estate; or, on the other hand, that he attended there to execute a deed to which his signature was necessary, in consequence of previous arrangement and consultation, with a full knowledge of the intended departure ? And apart from the natural probabilities arising from the circumstances, which alternative is most in harmony with the evidence, ? I am constrained to say, that the proof leaves no doubt in my mind that Mr. Vreeland was cognizant ,of Gautier’s intended departure, and that the disposition of his property was arranged to take place the day the deed was executed'. I feel bound, however, in this connection to say, that Mr. Beveridge does not appear to have participated in the matter, otherwise than by receiving his instructions from Gautier, drawing the deed and the will, and attending the execution. He received his instructions as to the deed and the will from the decedent, and so far as that goes, it tends to show volition. But what the particular instructions were, what the occasion or necessity *429of the deed was, how it came to he made, why the will was made, at whose suggestion, the whole transaction originated, what the previous negotiations or conferences were,—all these things are unexplained. Vreeland’s statement darkens instead of enlightening the case. One hold feature stands out prominently, the decedent wanted money to go to Mexico, was to sail the next day, and procured the amount on the heel of a will and a deed, which gave his entire estate to his uncle after his decease. The will and the deed were executed so nearly together, that one witness to the will thinks Vreeland was there when it was signed, and the other witness was still in the office when the Commissioner came to take the acknowledgment of the deed, and immediately after the deed was executed, the money was paid and the transaction terminated.
Though I am of opinion, notwithstanding his intemperate habits, that the decedent possessed sufficient capacity to execute a valid testament, yet there can be no doubt that his excesses had been carried to a degree which must have impaired the vigor and tone of his mind. After Mrs. Lewis’s death, in the summer and fall of 1846, he seems to have abandoned himself to gross intemperance. In August he made a trip in a yacht to Mewport, and “ was drunk all the time he could get liquor.” While at Mew Brunswick, he was a “ free drinker,” “ frequently unnerved with liquor,” in the morning before he dranlc “ very tremulous,” so that “ his hand would shake in lifting a glass.” Stelle says, “ when he was at my house he was generally under the influence of liquor.” “ I have seen him take liquor to bed with him ; a glass of brandy along side of his bed. I have observed him in the morning before he'had taken anything. He was very nervous in the morning until he got something to drink.” It is urged, however, that in spite of this mode of life, the decedent was in the full possession of all his faculties. Drunkenness is a species of temporary insanity, and except when in a state of intoxication, the capacity of the man is not de*430stroyed. But there can be no question that the general strength of the mind becomes seriously affected by com tinued intemperance. This young man was not of strong constitution, and he ultimately fell a victim to this dreadful vice in the morning of his life, in the 27th year of his age: The power of resisting influence depends upon the vigor of the understanding, and a man who abandons himself to the course of life which the decedent led, shows an utter want of those qualities which insm’e independence of character, and freedom from undue control. "Without a stated profession or occupation, leading a roving life, at one time in South America, again at home, gunning, fishing, yachting, drinking, he appears to have been -totally destitute of steadiness of purpose, or sobriety of judgment, and to have given himself up to frivolity and dissipation. Such persons, from their pecuniary necessities, are generally most subservient to those who can supply their wants. Depraved tastes, and expensive habits, constantly demand pecuniary aliment; and however showy or brilliant may be the talents, the man who has submitted to the ascendency of such masters, is far more dependent than a person of greatly inferior intelligence, but of correcter habits. He who is the slave of his appetites, is under the dominion of him who has the means of gratifying them; under the pressme of urgent wants, and to procure an immediate supply, he will comply with almost any conditions proposed, careless, unguarded, and not weighing the consequences, so long as the immediate object be gained. Such persons are extremely liable to imposition, and to commit acts of imprudence, and are little prepared to defend themselves against artifice, their temporary necessities operating as a sort of duress.
Gautier, at the time of the execution of the will and the deed, which I regard as simultaneous acts, was on the eve of departure for Mexico, and dependent upon Mr. Yreeland for the means of going. The money paid him was his own, and yet it was not paid till the will and deed *431were executed, the very day before he sailed. Mrs. Lewis’s personal estate was inventoried at $53,000. After deducting from this the value of the leasehold estate in Beaver Street, and specific and general legacies provided in her will, there was a large amount of personalty remaining. Up to the 11th January, 1847, out of the rents and personal estate received by Yreeland, he had not paid Gautier over $1700; the remainder was either in his hands, or if disbursed, unaccounted for. The whole of this estate is swept away, without providing for the possibility of marriage and children, and without power of revocation, reserving a life-estate only to the decedent. The will and the deed were one act. It is impossible not to regard them as component parts of the same transaction. They gave the estate after Gautier’s death, and secured it against intermediate acts. They were not only one act, but in their harmony, and in their purposes and provision, they were substantially a testamentary act, the will devising and bequeathing, and the deed preventing effectual revocation; both together disposing of the estate after his decease, and the deed putting him in a state of quasi tutelage during life. All the presumptions of law are against such a transaction. Yreeland owed Gautier every protection, and to profit by this act, he must dispel the cloud which hangs over it, give the fullest explanation, and show entire exemption from the influence to be implied, as well from his fiduciary relation as from the circumstances attending the execution of the instrument. Through the medium of the executorship, and by retaining the management and effectual disposition and administration of Gautier’s property, Yreeland occupied a position of great influence. Gautier received not a dollar except through him. Instead of being in possession of his estate, he was often in want of the smallest sums, and compelled to borrow. His habits may have rendered this kind of guardianship very proper, but a relation which existed for his benefit, by placing him under a species of control and re*432straint, must be carefully watched, to see that it be not perverted for the benefit of another. I am aware of the weight ordinarily attached to declarations of intention in favor of the objects of testamentary bounty, and to the emanation of instructions from the decedent, and have not overlooked the evidence in that particular, which was adduced ; but the effect of those circumstances is greatly influenced, if not neutralized, by the subservient position the decedent then occupied, the state of dependence upon Vreeland in which he was, and his present necessity of recurring to him for money to supply his wants. Were it not for one fact, this money influence might be only a matter of reasonable presumption; but the payment of the amount, or a part of it, needed by Gautier, immediately after the execution of the deed and will, is so indissolubly connected with the whole affair, and so stamps its character, as to corroborate and confirm all the natural and legal presumptions arising from the circumstances and mutual relations of the parties. I cannot but look upon it as the price of the deed; and the deed and the will were one. It would be absurd to suppose that the provisions of the will could vary from the deed; if there was to be a will at all, from the very nature of the case it must be in unity with a deed which purported to dispose of the estate after death. The same influence which produced the deed, or which brought the mind of Gautier to assent to its provisions, must have shaped the will in the same mind. I do not refer to any interference on the part of the counsel who received the instructions and drew the instruments, for none is shown, but to the motives and causes which operated on the mind of the decedent in giving those instructions, and consummating the act. I am of opinion, that the will ought not to stand, not only because in view of the relations of the parties the proof is insufficient, deficit probado, but because the facts in proof go rather to corroborate the legal presumption, created under the circumstances, of undue influence.