Peter McGraw, the deceased, resided at the time of his death in the city of Niagara Falls in this State. He was a bachelor, and his heirs at law were James McGraw, a half-brother, and his sister, the respondent. The sister resided in Loókport, Niagara county. The deceased lived with James McGraw, who was a married man residing with his wife at Niagara Falls. The deceased left but little personal property, and, as near as we can judge, about $10,000 in value of real estate. The father of the parties died some time before, leaving a last will and testament, by which he devised his- property to James and Peter. This was not satisfactory to Margaret, and she contested the probate of the will for a time, and out of this controversy grew ill-feeling between the deceased and the sister, which continued to the time of his death. He had not visited his sister for twenty years prior to his death. The deceased was taken ill on Thursday morning, April 11, 1895, with a liver difficulty of a severe character, and during Thursday was to some extent in a comatose condition. A physician, Dr. John A. Landrigan, was called to attend him. He visted the deceased several times that day, administered medicine to relieve and stimulate him, and also visited him several times on the Friday following, his last *374visit being that day at about eight o’clock in the evening. The effect ofthe doctor’s evidence is that the deceased was betterand brighter on Friday evening and in the possession of his faculties, talked intelligently, and was in a condition to comprehend the extent and nature of his property and the persons who would have natural claims upon him by reason of relationship or otherwise, and it is the opinion of the doctor that he was capable of making a. will.
The proponent, Joseph McDonald, a friend and neighbor of the deceased, who had known and been intimate with him for many years, learning that the deceased was very ill and likely to die, consulted with- the doctor- about the propriety of the deceased making his will, and they together saw the deceased shortly before the will was made and stated to him that he was a sick man, and that while they hoped he would survive, he might not, and that if he wished to make any disposition of his property he had better make a will. The deceased manifested some reluctance about that, without stating the ground of such reluctance,, but upon being advised further by these gentlemen to make the will he concluded to do so, and he was asked what attorney he would have to draw the will, and a number of attorneys were named over to him who could be obtained for that purpose whom he did not seem to favor. Finally the name of T. F. 0. Cleary was mentioned to him, and he accepted him. Mr. Griffin, a neighbor and friend of the deceased, and who afterwards became a witness to the will, and McDonald went to Cleary’s house and directed him to come to the deceaséd and to prepare a will. Mr. Cleary soon came to the house and he and McDonald entered the room of the sick man where they found the deceased with his face turned toward the wall. He seemed to be quiet or asleep; when McDonald aroused him he turned upon his back where he could see the parties. He was informed that Cleary was there, and he was asked how he wished to dispose of his property. McDonald testified that the deceased said he wanted to leave it to “ Jim and his wife ” (being his brother James and hiswife). Cleary testified that he said he wanted to leave it to the “ two of theni,” and upon his inquiring what the deceased meant by that, McDonald stated that he meant James and his wife. Cleary testified that the deceased appeared to be a very sick man; that he had not been acquainted with him before, and did not know how he appeared when well; and that, aside from his statement as to *375the “ two of them,” lie made no intelligent statement in his hearing during the progress of the business down to the completion of the will, but when asked questions, and when the will was read over, the deceased gave some indication of assent, or gave some indication of what he wished. McDonald, who appears to have been closer to the deceased while the transaction was going on, testified that he heard several statements from him as will be hereafter stated. Cleary then left the room to draw the will in another room. A question seemed to arise between Cleary and McDonald about whether anytliing was to be given to the sister Margaret, and some conversation was had between those parties to the effect that it would be better if Margaret was given something as it would, show that the deceased had her in mind. At all events, it was concluded that the deceased’s attention had better be called to her. McDonald went back into the room where the deceased lay, and he testified that he had the following conversation with him upon the subject: “ Pete (the deceased), aint you going to leave your sister anything ? and he said, ‘ No ; ’ says I, ‘ Why ? says he, ‘ Because she didn’t act right the time my father made his will;’ says I, ‘We should forgive all those things; not think of such things, you might die and that would be a queer thing to answer for, to have hard feelings against your sister; ’ he thought for a while and says, ‘ I don’t care, he can mark down $500 for my sister; ’ and I asked him when it should be payable, and he said, ‘ Whenever it will be convenient for my brother to pay it.’ ”
On his cross-examination upon this subject McDonald did not vary the effect of this statement, but he added to it that the deceased said that the sister contested the father’s will when she had no right to ; that he and his brother had always helped her when she needed it, and that she had no right to do as she had done, and that he would leave her some property were she worthy of it; but concluded, “ I don’t care if I leave her four or five hundred dollars.”
The will being prepared, it was taken to the deceased, and in the presence of Morris Griffin and of McDonald, all'close to the bedside of the deceased, Cleary read the will over to him, and Cleary testifies: “ I read the will to the sick man, and I stated to him that it would be necessary for him to declare the will to be his will; that it would be necessary for him, or well for him, to ask those whom he wanted *376to subscribe as his witnesses- and to comply with the formalities of •executing the will, and he did not ask these questions. Did not seem to he able to, so I asked him if it was his will, and I asked him if he wanted myself and Mr. Griffin to sign it and We- signed it; that is all there was to it. * * * He was a very sick man. As sick a man as I ever met, and of course he did not do any talking at all. He carried on the conversation with Mr. McDonald ; that he seemed' ' to understand. He was groaning. I can’t describe just exactly how he was * .. * ^ but. he said something or articulated something that these people advised me was an assent, and I, of course, had to take it in that way, and myself and Mr. Griffin did sign as witnesses. We signed on the stand that was near the head of the bed, and I had the pen in my hand, and brought the pen over in front of him, and he signed it, and then myself and Mr. Griffin both signed that in the presence of the sick man and in the presence of each other as witnesses,” He further testifies that the decedent made his mark to the will, he (the witness) steadying the pen, and he did testify during his examination in effect that when he asked these questions of the deceased he gave an indication of assent," but not in words. This witness stated that the will was executed about twelve o’clock on Friday night; McDonald testified that after he had gone baek into the room where Cleary was Writing, he told him about the five hundred dollars; for the sister, “ then Mr. Cleary completed the will' out- in the other room. He marked it' down, and then himself, Mr. Griffin and myself went back into the sick room. When we got back into the sick room, Mr. Cleary read the will and asked him if he understood it, to which Peter said, plainly, ‘ Tes.’ He asked him still further-: ‘Is everything satisfactory to .the way that will is made up ? ’ -to which Peter responded, ‘ It is all right,’ and I saw the signing done-. I saw Peter have, his hand on the end of the pen while Mr. Cleary was making his mark, and then I saw Mr. Cleary and Mr. Griffin sign as witnesses.”
' The witness further testified that the deceased was a quiet man and had usually nothing to say unless in response to questions asked him. In this regard several other witnesses in the case concurred.
The witness Griffin testified that he was in the room; that Cleary read the will over to the deceased ; that he saw Peter sign the will by making Ms mark; that afterwards he and Cleary signed the will *377as witnesses, which was done in the presence of the testator and in the presence of each other. This witness stated that he saw Peter often during his sickness and talked with him, and that in his opinion he was of sound mind and understanding and competent to make a will, and under no restraint.
T. Y. Welch was sworn for the proponent, and testified to an intelligent conversation he had with Peter about five o’clock in the evening of Friday; that he had known him a long time and was well acquainted with him, and that he noticed nothing in his condition on that evening that was unusual or' different from his ’ordinary condition, except that he was ill, with somewhat of the heaviness which comes from illness.
William Shepherd was sworn for the proponent and testified that he had been intimately acquainted with Peter for many years; that the last time he saw him was either Friday morning or the Saturday morning following, at his home, and he detailed an intelligent conversation with Peter about his health and his business, and he was asked this question: “ Q. Mentally, what was his condition ; I want to know what you noticed about his condition ? A. His condition was just the same as I had ever seen him, any more than he seemed to be more distressed, pain in his breast, sort of pain; he was ordinarily a very quiet man and talked very little.”
. The witnesses we have named were the only witnesses sworn in the case before the surrogate, except Peter Landrigan, a son of the sister, who simply testified that there had been difficulty'between the deceased and his sister, and that their relations had been strained for many years, and that his sister had four children and Was a widow, sixty-five years of age.,
Cleary testified to some conversation had with McDonald, not in the presence of the deceased ; that McDonald suggested that, unless Margaret was remembered in the will, she might contest it as she had done with her father’s wifi, and make trouble, and that he (Cleary) said it would be well enough to mention her anyway, because it would show that the deceased had her in mind when making his will. This McDonald does not remember. It also appeared that James (the brother) said to Cleary, though not in the presence of the deceased, that he could not pay the $500 to Mar*378.garet under four years, as it would have to be got out of the land, or something, to that effect.
It does not appear that either James or his wife communicated in any manner with the deceased or sought in any manner to influence him in the making of his will; neither of them were present at any. of the .intejwiews with him as to the making of the will or updn its execution. They were both in the house at the time of the making of tiie will,- and James bad some talk with McDonald Or Oleary and seemed to be aware of what was going on, and made the remark about the payment of the $500 as above stated. The evidence utterly fails to. disclose,, however, any influence of either James or his wife upon the deceased, and McDonald denies.that his action in the premises was instigated by James.
The counsel for the respondent severely criticises McDonald, and claims that ¡he, substantially, made the will in question in the interest of the beneficiaries thereunder. It -seems that the names of McDonald and the brother James as executors were inserted by Cleary in' the will, but not at the suggestion of either McDonald or James in his own behalf, and the fact that they were so named Was only made known to the deceased upon the reading of the will! Motliing appears against the character or integrity of McDonald, or that he was to receive any benefit under the will or otherwise, unless, possibly, such benefit as might come to him as one of the executors. Cleary, when asked as to the mental condition of the deceased at the time of the ¡making of the will, stated, in effect, that he was not able to.give an opinion upon the subject, giving as a reason the extreme sickness or illness of the deceased and his want of prior knowledge of his character and condition. He, however, signed the attestation clause of the will which contains the usual recital that the deceased ' in the presence of the witnesses declared the will to be his last will and testament, and'that the witnesses had subscribed it as such in his presence and in the presence of each othér and at the request of the deceased. .
. The will-devised and bequeathed all the real and personal property of the deceased, after the payment of his debts, to James . McGraw, and $500 to be paid to Margaret within four years after -the death of the deceased, which was made a charge upon the real estate,, and appointed James and McDonald as executors. It should *379have been stated that when the deceased expressed the wish to will his property to James and his wife, Cleary suggested to him that it would be better to leave it all to James, as in that event his wife would be taken care of — the will before would be shorter, and to this Peter assented as the evidence discloses.
The learned surrogate made findings of fact and reached conclusions of law which appear in the record. He finds: First, that the witnesses Cleary and Griffin signed the paper propounded as the last will and testament of the decedent; that the same was not signed by the said decedent, but his mark was affixed thereto. Second, that at the time of the execution of .said instrument, the said decedent was not of sound mind and memory and was not competent to make a will.. Third, that the said decedent was unduly and improperly influenced in making and executing the said instrument, and he finds as a conclusion of law that “ the instrument so propounded as the last will and testament of decedent, Peter McGraw, is null and void as or for the last will and testament of said Peter McGraw, deceased.”
While we do not wish to give our impressions with regard to the effect of this evidence, as we have decided that there shall be a jury trial of the matter, as we shall provide hereafter, we must, nevertheless, state to some extent the conclusions we have reached upon this evidence and give the reasons for our conclusions. The surrogate fails to find in express terms that the decedent executed and published the will with the formalities required by statute, but does find that while it was not signed by the decedent, his mark was affixed thereto, and the second and third findings of fact seem to assume a proper execution of the will by the decedent with the formalities prescribed by statute, in finding that he was not of sound mind and memory at the time of such execution and that he was unduly influenced in making and executing it.
Upon the first ground, viz., that the decedent was not of sound mind,-we fail to discover sufficient evidence to Sustain this proposition ; not an irrational act or word on the part of the deceased in connection with this whole affair appears in the evidence. The Want of ability to speak fully and to discharge the duties in connection with the execution of such an instrument that testators usually perform seems to have been due entirely to his illness. *380And the precise question which should be passed upon in this regard is whether he. was so far gone with his illness, or suffering such pain and disquietude therefrom, that he did not properly comprehend what he was doing and act intelligently upon the subject. It does not follow because a man is in extremis that his will is to be rejected, because we know that men foolishly postpone this most important act Until the shadows of the grave are creeping over them ' and they feel admonished that they must act then if at all in the final disposition of their property; nor does it follow that because'a man is weak of understanding and physically weak that his will is to be rejected, because the law only requires of him that he-should comprehend the nature and extent of. his ' property and who have just or natural claims upon his bounty in its disposition.
But in determining questions of testamentary capacity, we look with greater care and solicitude into the-case and adopt a more rigorous-rule where the decedent- is weak' and suffering than if he was in compará. tive-health,-and applying this rule thus- -laid- down, we áre unable to concur with the learned surrogate in his conclusion that the deceased was incompetent to make this will. IT'is two relatives (his brother and his sister) were the natural object's of his bounty; with his brother he lived in peace and affection, and Confidence seems to have existed between them. From his sister he' had. beeh long estranged, because of a bitter family feud, and it is immaterial which is to blame in that controversy; a reason appears why the decedent, whether in health or in sickness, might well prefer- the brother to the sister, and, therefore, his will in regard to the benéficiáries is:-consistent with his natural inclinations.
As to the other ground for rejecting this will (undue influence),. our conclusión is foreshadowed in the statement already made. Undue influence is of two kinds, one of -coercion or threats of injury; the other in which the mind of the person is wrought upon through constant persuasion, continued until the victim, for the sake of peace, is compelled to surrender (Matter of Soule, 19 N. Y. St. Repr. 532; S. C., 22 Abb. N. C. 236), or, as stated in another case: must be shown that the influence exercised amounted to moral coercion which restrained independent action and destroyed free agency, or that by importunity which he was unable to resist the testator was constrained to do that which was against his free will *381and desire. (Children’s Aid Society v. Loveridge, 70 N. Y. 387; Matter of White, 23 N. Y. St. Repr. 882.) Undue influence must be alleged by the contestant, and the burden is upon her to establish it. This is a familiar principle. (Ewen v. Perrine, 5 Redf. 640 ; Redfield’s Law & Practice [4th ed.], 197, and note 2.) At least the undue influence must, upon the evidence, appear to be of the character that the rule above referred to requires.
The respondent, however, claims that the decedent was induced to make a will at the interposition of others, especially of McDonald, and that, therefore, the will should be rejected. It is frequently the case that the friends of a sick man will discover what he has not discovered, i. e., that his end is near, and that they will give friendly advice that he should make his will; and if he, upon proper consideration, follows that advice, it is neither coercion nor undue influence, unless the person so advising takes a substantial benefit under the will, and then it may amount to a reason why the will should be rejected. McDonald did advise the making of a will. He did advise the deceased to become reconciled to his sister and make a bequest in her favor. He did not assume to name the amount, and but for his advice, doubtless, no provision would have been made for the sister. We do not discover in this a reason for rejecting the will; but the evidence upon this subject may be important in considering the question of the mental capacity of the deceased.
The learned counsel for the respondent presses with great earnestness the proposition that, notwithstanding the apparent acquiescence of the surrogate in the claim that the will was executed with the formalities required by the statute, it does not appear to have been so executed, and that we should pass upon that question de novo, and that if we find that the will was not properly executed, we should still sustain the surrogate’s decree, and the chief complaint that is made is that the will was not signed nor published by the testator, or witnessed by persons selected by him, as the statute requires. The will was read over in the presence of the deceased and the witnesses. It was prepared by one of the witnesses. It was signed at the end of the will by the mark of the deceased, it appearing in the evidence that he could not write. He was asked by the witness Cleary if he . declared the wall to be his last will and testament, and requested the witnesses to sign as such. He made an assent to that question, all
*382the assent that he was physically capable of mating. The witness McDonald, the person nearest to deceased at the time, heard him distinctly state that it was right, and as he desired it. Any act of a testator in the presence of the witnesses at the time of the execution of the will, that tends to show that he desires to publish the paper as his will; and that he wishes the witnesses to execute it, may be considered. (Matter of Hardenburg, 85 Hun, 587, and cases cited.) In In re Perego's Will (20 N. Y. Supp. 394; S. C., 65 Hun, 478) Judge Dwight says: “ A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing, and a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent, and in such manner as is practicable under tlie conditions existing.”
And in Thompson v. Seastedt (6 T. & C. 80; affd. in Court of Appeals, sub nom. Thompson v. Stevens, 62 N. Y. 634) Judge Daniels says: “ Although she (testatrix) did not, according to the testimony which was given, in words declare the instrument to be her will, if is clear that she treated it and designed the witnesses to understand it to be such. That was equivalent to such a declaration, and sufficient to satisfy the requirement of the statute upon the subject; for that does not necessarily contemplate such a declaration, in words in order to render the instrument valid as a will.”
And the Court of Appeals says in Matter of Nelson (141 N. Y. 157): The request to sign is sufficient if made by the person superintending the execution of the will, in the hearing of the testator,, and with his silent permission and approval.”
There are some differences between the witnesses upon important questions of fact in this case, and also different inferences may be drawn from the testimony as to such facts. ' It is important to the rights of these parties that the question of the due execution and publication of this will should be definitely and clearly passed upon.
We have reached the conclusion that the decree of the surrogate of Niagara county should be reversed upon questions of fact, and that an order should be made directing the trial by a jury of the material questions of fact arising upon the issues between the parties upon issues to be stated, the trial to take place at a Trial Term of the Supreme Court in the county of Niagara, pursuant to section 2588 *383of the Code of Civil Procedure, and that the costs of this appeal be payable out of the estate.
All concurred, except Adams and Green, JJ., dissenting.