“All persons except idiots, persons of unsound mind and infants may devise their real estate by a last will and testament duly executed.” (R. S. pt. 2, chap. 6, tit. 1, § 1, as amd. by Laws of 1867, chap. 782.)
“ Every male person of the age of eighteen years or upwards * * ■ * of sound mind and memory, and no others, may give and bequeath his * * * personal estate by will in writing.” (R. S. pt. 2, chap. 6, tit. 1, § 21, as amd. by Laws of 1867, chap. 782.)
*261“ Before admitting a will to probate the surrogate must inquire particularly into all the facts and circumstances and must be satisfied of the genuineness of the will and the validity of its execution. * * (Code Civ. Proc. § 2622.) '
The courts have frequently defined what constitutes a person of sound mind within the meaning of the statutes relating to making a will, and we quote from Delafield v. Parish (25 N. Y. 9) : “We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of liis will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and- intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”
In Horn v. Pullman (72 N. Y. 269) the court, in speaking of incapacity, say it cannot be “ inferred from an enfeebled condition of mind or body,” and further say : “ Such a rule would be dangerous in the extreme, and the law wisely sustains testamentary dispositions made by persons of impaired mental and bodily powers, provided the will is the free act of the testator and he has sufficient intelligence to comprehend the condition of his property and the scope, meaning and effect of the provisions of the will.”
In the later case of Dobie v. Armstrong (160 N. Y. 584) the court say: “A man’s testamentary disposition of his property is not invalidated because its provisions are unequal, or unjust or the result of passion, or of other unworthy or unjustifiable sentiments. It is natural arid, therefore, usual to make provision for a child, but, under our governmental institutions, no obligation to do so is imposed upon the parent, and the presumption of validity is not affected by the failure to do so alone. Nor is the presumption in favor of a will overcome by showing that the testator was of advanced age or of enfeebled condition of mind or body. * * * *262That the testator may have received some unjustifiable impression, which had actuated him in making his will, does not warrant us in calling it a delusion. A man may even have an insane delusion and yet be able to make a valid will; for the will to be invalid must be the result itself of the delusion, and it is not a delusion which incapacitates if the proof of its existence depends upon external and observable facts, giving rise to impressions which, upon investigation, might be proved to be unjust.”
The testator was unmarried, and at the time of his death was in his thirty-eighth year. He was the only child of parents of more than ordinary mental strength. Many of his ancestors were distinguished, and most of them had lived to extreme old age. He was a grandson of Martin I. Townsend, a lawyer and speaker of national fame. His mother was a social and educational leader of great strength of mind, and his father was known in educational circles throughout the country, but died at the age of sixty-three, having for a few years before his death been afflicted with a mental trouble that' we understand is conceded to have been epileptic. The testator was a cultured and highly educated gentleman ; he was fastidious in his dress, and quiet, gentle1 and agreeable in manner. He had traveled extensively at home and abroad. He was admitted to the bar in the year 1888 and became a member of the firm of Townsend, Roché & Mason, consisting of his grandfather, Mr. Roche, the executor named in his will, and himself. In the fall of 1896 he was elected county judge of the county of Rensselaer, which prevented him from further practicing his profession. His father died in 1895, and thereafter the testator lived with his mother and grandfather in the Mason homestead at Troy. In April, 1902, he was nervous from loss of sleep, and on the 16th day of April, 1902, went to a sanitarium for nervous diseases, and was accompanied by. his mother. The April Trial Term of the County Court of Rensselaer county was held by a county judge from an adjoining county. He remained at such sanitarium until July 25, 1902; his mother remained with him until June 15, 1902, when she returned. On his return he continued in the performance of the duties of his office, holding the September Trial Term of the County Court, which lasted about two weeks, and at which trial and grand jurors were in attendance, and also at which both criminal and civil cases *263were tried. During that fall he was renominated for county judge to succeed himself, and attended to the duties arising by reason of the canvass for his election, and also to the duties of his office; including the hearing and decision of matters growing out of cases under the election and registration laws and the hearing of applications for naturalization of foreign-horn citizens. He was re-elected at the general, election held early in November. His mother became ill in October, but the illness was not considered serious. On the twelfth day of November the will was executed. Of the three witnesses to the will one was the editor and proprietor of a Troy daily paper, who had long been an intimate friend of his; one was the stenographer of the County Court, who had been such stenographer for many years, and the third was a young lady then in the household attending his mother as a trained nurse. He personally saw the witnesses and asked each of them to attend at his house as a witness to a paper, and when they gathered at his mother’s home there were present besides the witnesses his grandfather and Mr. Roche. He had the possession of duplicate wills and took them in the presence of the witnesses and with his pen inserted the day of the month and attention was called to an interlineation opposite which he had placed his initials. He then signed the papers in duplicate arid declared them to be his last will and testament and requested the witnesses by name to sign them as witnesses to his will and they did sign in the presence of the testator and in the presence of each other. In asking the young lady to act as one of the witnesses he said to her that it was because there was no one in the house excepting herself that was not remembered in the will. At the time the will was executed his grandfather was in good health and the illness of his mother was not considered serious. Six days thereafter the Trial Term of the County Court of Rensselaer county again convened at which there was in attendance a trial and grand jury. Testator presided at this term of court; the term lasted about two weeks and both criminal and civil cases were tried in the ordinary way. On December seventh his mother died, having a few hours before had a hemorrhage of the brain. The testator continued nervous and suffered from lack of sleep and prior to January 1, 1903, went to Washington for a week and soon thereafter he went to Florida with his clerk and remained there for about a month and he again returned to Rensselaer county *264and continued in the performance of his official duties. His grandfather died on che 8th day of March, 1903. On March twenty-eighth he requested two of the persons who had witnessed his will, the editor and stenographer, to attend at his house and witness another paper. When they met at his house he stated -that he desired to execute a codicil to his will in duplicate. There were present at the timé the witnesses and Mr. Roche, the executor. He produced duplicates from a desk and they were duly signed and executed. On Monday thereafter, between eleven and twelve' o’clock, while at his office, he told his clerk that he might take his lunch at Albany with a friend, naming him, and he further said that he probably would not be home for dinner. He then left his office and was subsequently found dead as already stated.
All of the testator’s heirs at law and next of kin were collateral relatives, the nearest being second cousins. Most of them lived in other States, and it does not appear that he ever saw or communicated with the majority of them. All of his relatives were in good financial circumstances, and none of them had ever been dependent upon the testator or, so far as appears, been assisted by him in any way in his lifetime. The legacies given' in his will are to persons that had been faithful in his service or in the service of his parents or to persons with whom he had been in intimate association or active business during his life. The residuary legatee is a charitable institution of which his mother was one of the founders, and in which she was greatly interested and by the legacy to it he perpetuated his name.
The will is not a strange or unnatural one. It was executed in the presence of his grandfather and at a time and place and under circumstances which make it reasonably certain that the provisions were known to and met with the approval of both his mother and grandfather. The codicil only relates to personal effects, and while important from a sentimental standpoint, it is of minor consequence,as it does not affect the general provisions of the will. - Ho "question has been raised but that both the will and codicil were executed as provided by statute (2 R. S. 63, § 40 et seq.), and there has not been a suggestion by any one of the many people who were associated with the testator socially, politically or officially, that he ever did or said an irrational thing or that he was not sound, competent and capable. *265The witnesses to the will, other than the nurse, and the witnesses to the codicil had known him intimately all his life, and testified that he was of sound mind and memory, and not under any restraint at the time that the instruments severally were signed, and no one was produced to testify to the contrary. The fact of suicide alone is not sufficient to overcome the presumption of sanity. (Shipman v. Protected Home Circle, 174 N. Y. 398; Weed v. Mutual Benefit Life Ins. Co., 70 id. 561.) Under the circumstances disclosed, we conclude that it affirmatively appears that the execution of the will and codicil were each the deliberate, intentional and intelligent act of the testator. Both of the instruments were executed in duplicate and they were' all produced before the surrogate when one of each was probated as the last will and testament of the testator, and the witnesses testified that they were duplicates, and the papers signed and executed by the testator as duplicates of his will and codicil respectively. (See Redf. Surr. [5th ed.] 129 ; Crossman v. Crossman, 95 N. Y. 145.) It is true that the witnesses to the will and codicil did not actually read the instruments before they were executed and could not testify as to their contents when executed or as to their being the same, clause by clause, as when executed, by having actually compared them, but they could and did identify the instruments produced as the ones declared by the testator to be duplicates and signed by him and them as such. The statutes of this State do not require that the witnesses to a will shall know the contents thereof, and be able to testify on the probate of the will that the provisions thereof, as then appearing in the instrument, are the same as in the instrument at the time when executed. (Matter of Sheldon, 40 N. Y. St. Repr. 369.) Our statutes do require that a will shall be subscribed at the end thereof (2 R. S. 63, § 40, subd. 1), and the court should be alert to prevent a fraud being committed by changing the provisions of a will or the sheets of paper making up a will after the same is executed. It would be wholly impractical to require witnesses to know and remember"the contents of wills signed by them. The will in this case consisted of four pages of type-written matter, fastened together, and although the fastening was not sufficiently secure to prevent the possibility of fraud by changing the sheets of which it consists, the presumption where sheets of paper are bound together constituting a will at the testator’s *266death, is that the same sheets were so bound together at the time of its execution (30 Am. & Eng. Ency. of Law [2d ed.], 603), and there is not the slightest evidence in this case to overcome such presumption. The will and codicil are continuous in their provisions; they are each signed at the end thereof by the testator, and then follows the attestation clause which was read aloud to and signed by the witnesses, and on one of the other three pages of the will are the initials of the testator where an interlineation was made. There is not a suspicious circumstance or fact affecting the execution or production of the wills or the codicils, but the instruments bear every indication of being the same at the time of probate that they were when signed by the testator and his witnesses. Far from there being any evidence of undue influence affecting testator’s independent action it does not appear that any one ever spoke to him about the disposition of his property or in regard to making a will or codicil. So far we have considered this case on the assumption that the proponent of the will before the surrogate and the plaintiff in this action is bound to establish • affirmatively the genuineness of the will and the validity of its execution. It was necessary, as we have seen, to satisfy the surrogate of its genuineness and validity, and with duplicate wills before him he was satisfied of their genuineness and validity, and the two papers, will and codicil, were admitted to probate by him as the last will and testament of the testator. In an action under section 2653a of the Code of Civil Procedure, the Court of Appeals in Dobie v. Armstrong (supra), in referring to the record in that case, say: “ Ordinarily, the burden of proof is upon the party propounding a will; but section 2653a of the Code of Civil Procedure, which is the authority for .the maintenance of this action, places the burden upon the defendants, who contest the validity of the will, of establishing the testamentary incapacity of the testator. The probate of the will by the surrogate is made prima facie evidence of its due execution and validity. The affirmative was with this appellant upon the question of the case, whether a delusion, or an insane belief, existed in the testator’s mind with respect to his domestic relations, and, especially, with respect to his son, which incapacitated him from validly willing away his estate. The burden was upon him to adduce evidence, which would be sufficient to uphold a verdict that the testator was the victim of *267such a delusion with respect to his son as to prevent his affections from operating in their natural channel. He assumed the burden of showing that there was no cause for his father’s changed feelings, in facts or in actual circumstances, and, therefore, that they could only have had their origin in some figment of the brain.”
The trial court refused to allow the wife of one of testator’s next of kin and a party to the action to testify concerning personal transactions and communications with the testator. Testator left real estate which except for the will would descend to his heirs at law, and the witness as the wife of an heir at law would have an inchoate right of dower therein, and her evidence was properly excluded. (Eckert v. Eckert, 13 App. Div. 490.)
The trial court also refused to allow a witness to testify to what he had heard in the family as to the insanity of certain of testator’s ancestors. The ruling was in accordance with the decision in People v. Koerner (154 N. Y. 355). (See Pringle v. Burroughs, 100 App. Div. 366.)
The trial court also refused to allow proof of statements made by the testator’s mother to a physician at the sanitarium, and also to allow in'evidence certain letters written by the testator’s mother while she was at the,sanitarium with the testator. Such statements and the contents of such letters were clearly hearsay.
If we assume that the testator contemplated suicide when he executed the codicil to his will, or even when he executed the will of Hovember 12, 1902, we cannot assent to the claim of the appellants that such instruments are void as against public policy. Unlike the beneficiary in the case of Riggs v. Palmer (115 N. Y. 506), the persons and corporations who are benefited by the provisions of the testator’s will have done no wrong. In that case the majority of the court say that a person who murders a testator for the express purpose of preventing him from changing his will which then existed in his favor, and to obtain immediate possession of the property devised and bequeathed to him, shall not receive the property which would be a reward for the commission of a‘ crime. This decision was said to be dictated by public policy, and to be based on the fundamental maxims of the common law therein stated to be as follows: “Ho one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found *268'any claim upon his own iniquity-, or to acquire property by his own crime.” No principle of public policy requires that the property devised and bequeathed by a person who subsequently commits suicide shall be taken from innocent beneficiaries and presented to other persons who would take the same contrary to the express direction of a competent testator. The decision in Riggs v. Palmer (supra) should not be extended to prohibit a person otherwise competent from making a will if he then contemplated the possibility or probability of suicide. If there is any reason for such a prohibition it should be expressed by the Legislature.
The trial court refused to allow the physician in charge of the sanitarium to answer questions put to him by the appellants as to testator’s physical and mental condition when he arrived at the sanitarium, .and as to what treatment was given to him, and also as to conversations had with him in regard to his religious belief, and the court also refused to allow Dr. Ferguson to answer a question put to liiin as to what the testator said to him concerning his health. All of these questions were objected to as being prohibited by section 834 of the Code of Civil Procedure. The appellants on the trial expressly waived the provisions of said section 834, so far as the physician from the sanitarium was concerned, and.contended before the trial court and contend here that the prohibition of section 834 of the Code of Civil Procedure was thereby obviated as provided by section 836 of the Code of Civil Procedure.
It séems unnecessary for' this court to discuss the questions involved by the 'contention of the parties, for the reason that we are of the opinion that the answers to the questions, propounded could not have been such as to have required the submission of thé question of the testator’s mental capacity to the jury. The questions which relate principally to testator’s physical condition could not affect the result in this case, for, as we have seen, an enfeebled condition of body does not of itself affect one’s testamentary capacity, and the questions, so far as they relate to the testator’s opinion of his own health, or as to his religious belief, have no connection with the will, or with the disposition made of his property. So far as the questions related generally to his mental condition while at the sanitarium, the answers thereto could not affect or *269destroy the uncontradicted evidence as to testator’s intelligence and competency when the instruments were executed, as shown by the record.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.