There is no' conflict in the testimony in this case touching any material facts; all these stand undisputed. It is only with the conclusion's of the learned surrogate that we have to do. There is no room for diverse inferences from the conceded. facts; the ■ case presents, therefore, only a question of law, viz.: Are the conclusions of the surrogate that the will Was procured by “ fraud, etc.,” supported in any degree by the undisputed facts ?
The surrogate finds as a fact, and this finding cannot be controverted, “ That said will is sufficiently proved to have been signed, published and declared and attested in full compliance with the law and the statute in such case made and provided.” This disposes of the testimony of the witness Havens so far at least as it tends to discredit the proper execution of the will. The surrogate does not find, that at the time the will was executed the testator was not possessed of' testamentary capacity, and the proof seems to establish beyond dispute that he was; that his mind and memory were sound, his mental faculties unimpaired, that he possessed a clear understanding of his-affairs, his surroundings, his relations and obligations. He had been ill only four days ; his trouble was a valvular trouble of the heart, a difficulty not usually painful; it disturbed his breathing somewhat on the day the. will was made. On the Wednesday prior to the Sunday on which the will was made he drove alone some two or three miles to get some medicine and drove home. On Thursday Dr. Pratt called- at his house. On Friday Dr. Hailes, of Albany, w.as sent for. The testator asked Dr. Hailes if there was any danger ; that if there was, he had some business matters he would like to-straighten up ; that he had made a will about twenty years before. *217and that was a. pretty long time, and he would like to make a new will. He said a great many changes had taken place during- that time. Dr. Hailes told him that at his age the trouble might take an unfavorable turn, and told him “ he had better make it.” That night Mr. Grey, an old friend of the testator, a man of character and standing, residing in Albany, for many years the treasurer or assistant manager of the Albany Brewing Company, came, and with him also came Mr. Waterbury, an acquaintance of the testator, a lawyer, not connected in any professional way with any of the beneficiaries under the will, and also, so far as appears, of good repute in his profession. The testator said to Mr. Grey when he first arrived and had shaken hands, “ How do you do ? Glad to see you. Have you got the lawyer with you 8***1 want to draw a will.” The testator then asked the lawyer if he could draw a will devising the farm and not the personal property, and said he wanted the farm to go to Matilda Pratt, wife of the doctor; that it was better to put it in' her name rather than in the doctor’s. He then gave to the scrivener directions as to this will. Mr. Waterbury says : “He told me that he wanted to make certain that she should have that farm, and that after he got around -—he would be out in a few days—: he would have me prepare a will.” The will was then prepared and executed that night, but it did not mention the personal estate. The farm was the great bulk in value of his property. All of this was done in the absence of all the beneficiaries. It nowhere appears that the subject of the disposition of his property had been discussed by the testator with any of the beneficiaries or by any of them in his presence.
The learned surrogate says as to this Friday night will: “ On Friday night, June 3, the testator executed a will; this was probably because of the advice given him that day by Dr. Hailes; it was either the first or second day after he was taken sick, and there is little, if any, doubt as to his testamentary capacity at that time. He was in full possession of Ms mind, and he gave intelligent and explicit directions as to what he wanted done and did not want done.” Ho fault can be found with this conclusion. The Friday night will has this bearing upon the Sunday will. The will executed on Sunday retained the provision as to the farm of the Friday will, and, in addition, disposed of the small remaining property—the personal property. .This conclusion of the surrogate as to the testamentary capacity of. *218the testator may be taken also as his conclusion as to the capacity bf the testator on Sunday, for he presents in the record no different conclusion on that subject.
The record also presents a statement on the part of the surrogate which relates to both wills in this language: “ There is no reliable evidence of any particular act or attempt on the part of any one connected with the case to influence testator’s mind as to the disposition of his property.”
A careful examination of the testimony will, I think, force the most easily biased mind to the same conclusion. There is no “ act or attempt,” and no proper inference can be drawn from any of the proven facts that there was any “ attempt ” ■ of the nature mentioned.
It would seem from what the learned surrogate has said in the record showing upon what he based his conclusion of “ fraud, etc.,” that he gave great weight to “ opportunity.” Of course, “ opportunity ” is a necessary factor always in identifying the perpetrator of a crime; but to establish the primary fact, viz., that a crime has in fact been committed, neither motive nor opportunity has any probative force. Applying this principle to the proof of fraud and undue influence in the execution of wills, it Was said by Rapallo, J., .in Cudney v. Cudney (68 N. Y. 148): “ To invalidate a will on the ground of undue influence there must be affirmative evidence of the facts from which such influence is to be inferred. It is'not sufficient to show that a joarty benefited by a will had the motive, and opyyortv/nity to exert such influence. There must be evidence that he did exert it, and so control the actions of the testator either by importunities which he could not resist, or by deception, fraud or other improper means, that the instrument is not really the will of the testator.”
I think the learned surrogate gave more weight to opportunity in this case than the facts warrant. There was in fact no opportunity to practice fraud or deception or undue influence by any of the beneficiaries at the time either the Friday or the Sunday will was executed ; none of them was present when the provisions of either will were dictated, written out or when the wills were executed. It would be a violent presumption to presume that Mr. Grey or Mr. Waterbury, or either of them, was acting as the criminal tool of any *219of the beneficiaries when there is not a particle of proof to sustain-it. Such a presumption cannot be based upon the fact that Dr. Pratt communicated to them the wishes of the testator that he wanted to make a will, or that Dr. Pratt was instrumental in getting them there. Do one else was about the house of the testator who could render to him this service. That they came on Friday at the expressed wish of the testator is indicated by the testator’s asking of Mr-. Grey, “ Have you got the lawyer with you 2***1 want to draw a will.” - But it may be sufficient that the surrogate has not declared a presumption so’ groundless. He has left it, however, somewhat in the air in his finding of “ fraud, artifices, circumvention and undue and improper influences,” practiced by Henry Pratt and Matilda, his wife, or “ instigated” by them. Through whom, by what means was this “ instigated ? ” The record is certainly wholly silent on this subject. It is clear that the surrogate is not quite sure that this was practiced directly by Henry Pratt or Matilda for he says he can point out “ no particular act or attempt ” on their part.
I have examined the other facts to which the surrogate refers as important in reaching his conclusions, one of the principal of which is the fact that Margaret, a maiden sister with whom the testator had always lived, was not so bountifully provided for by this will as by the will made fifteen years before. The .testator no doubt had his reasons for this; his love for his sister had not abated, but she had reached the age of eighty-two ; he knew her needs and her circumstances knd presumably her wishes. She was on his mind because he called back the scrivener and made him write the will over giving her a small legacy, more a testimonial of remembrance than a practical provision against want, but ajjparently she was satisfied. She was in the house and knew the will was being written and she opposed the revocation of the will. ■ I think this fairly takes this fact out of consideration. As to his sister Anna, she took nothing by the will of fifteen years before, nor is there any evidence that she was ever in testator’s mind as an object of bounty. What evidence there is leads to the contrary conclusion. She was seventy-eight, married, childless and far from being dependent or in need. Two of the adult children of the testator’s deceased half-brother were not mentioned in the will made fifteen years before, and the *220evidence does not disclose that he ever looked upon them as proper objects of his bounty. As to,the other one, John Vosburgh, by the old will he was a beneficiary for $1,000 : .lie then lived in Hudson in this State but removed to a western State where he now resides. It should not be counted as surprising, I think, if fifteen years had wrought such changes that the testator no longer regarded John Vosburgh’s welfare a matter of his concern. It is hot surprising either that in fifteen years there should have developed in the testator new wishes, grounded in new friendships, affections, loves or hatreds. With what may have been the secret causes for changes of purpose neither court nor jury has anything to do. The occult forces which may move a testator’s mind in the disposition of his property may he beyond the ken of the most learned court. The field of inquiry'must be limited to the single inquiry : Is this'in fact the will of the testator %
The other fact which the surrogate apparently deems important, and sufficient to shift the burden of. proof from the contestants to the proponents, viz., that Dr. Pratt for - three days had' acted as attending physician to the testator and had made him daily professional visits, has little or no weight in creating a conclusion that fraud or undue influence was practiced. The long existing intimacy was not thereby increased; nothing was added to the confidential relations; it showed only a reliance upon the doctor’s professional skill. There was here no weak mind to operate upon, no habit shown of reliance upon the doctor’s advice in matters outside of his professional skill,, no importunities were shown, no dominant will in the physician, no fear on the part of the testator. This soil, it seems to me, is altogether too thin to grow a presumption of wrongdoing on, or to support even a healthy suspicion.
All the qualified witnesses who could possibly have had any knowledge bearing upon the subject — and in number they were many — were produced. The only others who could know were Henry Pratt and Matilda, his wife. The contestants did not offer them as witnesses, and, under the Code of- Civil Procedure, they could not be sworn for the proponents; they were not at liberty to testify to a negative, that they had not importuned the testator. This, in the mind of the surrogate, apparently, was the thing lacking', the proof essential, the impossible.
*221We have here a case of an elderly bachelor with no one depending upon him, with testamentary capacity, in his own home, dictating to a reputable scrivener in the presence of an old friend, and in the absence of all beneficiaries, a disposition of his.estate, which was correctly written down in the form of a will, and the will executed with all the formalities, a total absence of any proof of any particular act or attempt on the part of any one to influence the testator in any way. Testing the will by its provisions, the beneficiaries named are shown to have been for years objects of concern on the part of the testator, a concern in its nature almost paternal, objects whom he had more than once declared to Hr. Grey, two years before, should be the sole objects of his bounty.
None of the facts, regarded alone or in combination with other facts, and none of the legitimate inferences deducidle from any single fact, or the facts in array, point to “ fraud, artifices, circumvention and undue and improper influences,” and that conclusion on the part of the learned surrogate was an error at law. There being no conflict in the.facts, there is no question for submission to a jury. (Matter of Will of Martin, 98 N. Y. 197; Matter of Hunt, 110 id. 283.)
The decree of revocation should be reversed and the original decree probating the will should be affirmed, with costs in this court and in the Surrogate’s Court in favor of appellants and against the petitioner.
All concurred.
Decree of revocation reversed and the original decree affirmed, with costs in this court and in the Surrogate’s Court to the appellant against the respondent.