[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 518
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 519 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 521 Undue influence, which is a species of fraud, when relied upon to annul a transaction inter partes, or a testamentary disposition, must be proved, and cannot be presumed. But the relation in which the parties to a transaction stand to each other, is often a material circumstance and may of itself in some cases be sufficient to raise a presumption of its existence. Transactions between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, are illustrations of this doctrine. Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by the one holding the dominating situation, naturally excite suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage, the burden of relieving himself from the suspicion thus engendered, and of showing either by direct proof or by circumstances that the transaction was free from fraud or undue influence, and that the other party acted without restraint and under no coercion, or any pressure direct or indirect, of the party benefited. This rule does not proceed upon a presumption of the invalidity of the particular transaction, without proof. The proof is *Page 523 made in the first instance when the relation and the personal intervention of the party claiming the benefit, is shown. The law is not so impracticable as to refuse to take notice of the influence of greed and selfishness upon human conduct, and in the case supposed it wisely interposes by adjusting the quality and measure of proof to the circumstances, to protect the weaker party and, as far as may be, to make it certain that trust and confidence have not been perverted or abused. (Nesbit v.Lockman, 34 N.Y. 167; Cowee v. Cornell, 75 id. 91; 31 Am.Rep. 428; Marx v. McGlynn, 88 N.Y. 357.)
The rule to which we have adverted seems however, to be confined to cases of contracts or gifts inter vivos, and does not apply in all its strictness at least, to gifts by will. It has been held that the fact that the beneficiary was the guardian, attorney, or trustee of the decedent, does not alone create a presumption against a testamentary gift, or that it was procured by undue influence. (Coffin v. Coffin, 23 N.Y. 9;Post v. Mason, 91 id. 539; 43 Am. Rep. 689; Parfitt v.Lawless, L.R., 2 Pro. Div. 462.) The mere fact therefore that the proponent was the attorney of the testatrix did not, according to the authorities cited, create a presumption against the validity of the legacy given by her will. But taking all the circumstances together — the fiduciary relation, the change of testamentary intention, the age, and mental and physical condition of the decedent, the fact that the proponent was the draftsman and principal beneficiary under the will and took an active part in procuring its execution, and that the testatrix acted without independent advice, a case was made which required explanation, and which imposed upon the proponent the burden of satisfying the court that the will was the free, untrammeled and intelligent expression of the wishes and intention of the testatrix. (See note to Huguenin v. Baseley, 2 W. T. Leading Cas. in Eq. 1156; Redfield on Wills, 515, and cases cited.)
The surrogate reached a conclusion adverse to the contestant upon both grounds upon which the validity of the will was questioned. He found that the testatrix had testamentary capacity and that the will was not procured by any fraud or undue *Page 524 influence. We think there was evidence to support the conclusion of the surrogate upon both points. But upon neither was the case free from doubt. We do not intend to enter into a discussion of the facts. We have reached the conclusion that the judgment ought to be reversed for errors in the admission of evidence on the question of undue influence, which was calculated to, and which we cannot say may not have had a material influence upon the determination of the surrogate.
The proponent was examined as a witness in his own behalf. He was permitted to testify to the contents of a lost will of the testatrix, drawn by the proponent and executed by her twenty years before her death, by which she gave her estate to a child of the proponent, since deceased. The existence and execution of this will, its loss, and its contents, were proved by his testimony alone. The proponent was also allowed to testify that a memorandum produced was made by him on the 10th of September, 1880, three days before the execution of the will in question, at the house of Mrs. Peters, where the testatrix resided, and that the will drawn by him on that day (but dated August 10, 1880), was drawn from the memorandum. The will in question was substantially a transcript of the will of September 10th. The proponent was the draftsman of this will also, and he procured it to be executed after his attention had been called to the point, whether being a subscribing witness to the will of September 10th, he was competent to take under its provisions. The contestant objected to the proponent's being allowed to testify to the contents of the lost will, and also in respect to the memorandum of September 10th, and to the fact that the first will was drawn therefrom, on the ground that the evidence related to personal transactions and communications between the witness and the decedent as to which he was incompetent to testify under section 829 of the Code. The surrogate overruled the objection and admitted the evidence, and the contestant excepted.
We think the objection as to both branches of the evidence was well taken. The drawing of the lost will by the proponent and its execution by the testatrix, presumptively involved a *Page 525 personal transaction between them. The instructions must have been obtained from the testatrix by the witness directly or through an intermediary. But the circumstances strengthen the natural presumption (which is not excluded by any affirmative proof), that it was drawn from instructions personally communicated by the testatrix to the witness. They resided in the same place; the testatrix was a friend and frequent visitor at the house of the proponent, and his child was the principal beneficiary under the will. The witness derived his knowledge of the contents of the will from his relation to the transaction and to the testatrix. We think there can be no doubt that he was precluded by section 829, from testifying to the contents of the will. It was evidence "concerning a personal transaction or communication between the witness and the deceased."
The evidence in respect to the memorandum, and that the will of September 10, 1880, was drawn from it, was also clearly in contravention of section 829. The proponent testified that he was sent for by the testatrix on the evening of the 9th of September, and that he went to see her on the morning of the 10th and had an interview with her. The inference is irresistible, although the fact is not expressly proved, that the memorandum was made by proponent at that interview and contained her instructions for the will of the 10th of September. The evidence of the proponent that he made the memorandum and drew the will therefrom, was equivalent to permitting him to testify that the will was drawn from and in pursuance of instructions given him by the testatrix, and was plainly evidence concerning a personal transaction or communication between them.
It is obvious that the testimony of the proponent as to the contents of the lost will and in respect to the memorandum, bear directly and with great force upon the issue of undue influence. The evidence in respect to the memorandum was especially important. It was cogent proof that the testatrix understood the contents of the will of September 10th, of which the will of September 13th was substantially a republication; *Page 526 that her intention to give her property to the proponent was deliberately formed and that the will in question was drawn in conformity with her instructions. While the existence of undue influence is not conclusively repelled by proof that the contents of an instrument contested on that ground, were understood by the party executing it, it is nevertheless a material inquiry, and the fact that the instrument was the conscious intelligent act of the person signing it, is always of great weight upon the issue.
The doubt in respect to the application of section 829 of the Code in this case arises out of the peculiar relations of the proponent and contestant to each other, and to the estate of the decedent. The contest, in substance, is between strangers in blood to the testatrix, claiming her property in hostility to each other under different wills. Section 829 prohibits the examination of a party to an action or special proceeding, in his own behalf, against the executor, etc., of a deceased person, "or a person deriving his title or interest from, through, or under a deceased person." We think the contestant was a person deriving an interest under the deceased, within the meaning of this section. It is true the contestant's interest was not fixed or certain. If the will propounded for probate is valid, she has no interest, and if it should be set aside, it does not follow that the will under which she claims will be established. But the probate of a will is a special proceeding (Code, § 3334). The contestant, by appearing to contest the probate, became a party thereto (§ 2617). The will propounded was an obstruction to any claim she may have under the prior wills. Her interest, though contingent and uncertain, whatever it was, was derived under the deceased. Her position, though not precisely analogous, is similar to that of heirs or next of kin contesting the will of their ancestor, and it can scarcely be doubted that they would be within the protection of the section.
The only remaining question relates to the construction and application of the last clause of section 2545 of the Code, which declares that no decree or order of a surrogate shall be reversed for any error in admitting or rejecting evidence, "unless it *Page 527 appears to the appellate court that the exceptant was necessarily prejudiced thereby." Prior to the enactment of this section the rule was settled, in analogy to the rule governing appeals in equity, that the admission of improper evidence in a proceeding before a surrogate for the probate of a will, was not a ground for reversing his decree if it appeared on the whole case that the decree was right. (Brick v. Brick, 66 N.Y. 144, and cases cited.) In other words the appellate court disregarded errors in the admission or rejection of evidence in such cases, which, in its judgment, did not affect the substantial rights of the parties. Section 2545 was probably intended to incorporate into the statute the pre-existing rule administered by the courts. The section could not have intended to prescribe that no decree of a surrogate should be reversed for errors in admitting or rejecting evidence, unless it appeared to the appellate court in the one case that the evidence erroneously admitted furnished the only foundation for the judgment, or in the other that the rejected evidence, if it had been admitted, would have conclusively entitled the appellant to a decree in his favor. It is the general rule, alike of reason and of law, that litigants may present to the court all relevant and competent evidence bearing upon the issues between them, and that incompetent and irrelevant evidence shall be excluded, so that the case shall be heard and decided upon the competent and legal proof. (Schenck v. Dart,22 N.Y. 420.) The admission of incompetent evidence was before the Code presumptively injurious. The section in question may have changed this presumption. Under this section, when the court of review finds that incompetent evidence has been received or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot say, that notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt upon the subject, then we conceive a case is presented where the party excepting was necessarily prejudiced *Page 528 within this section. He was deprived of the opportunity of having his case decided upon the competent and material facts, and it is not a just answer to say that on a re trial the same conclusion may possibly be reached. Within the rule thus stated, the admission of the testimony adverted to requires the reversal of the judgment.
The judgment of the General Term and of the surrogate is therefore reversed.
All concur, except MILLER, J., not voting.
Judgment reversed.