The surrogate in reaching his decision adverse to the alleged will, has reviewed the great mass of testimony and discussed the many issues directly and incidentally involved, in an opinion which is so painstaking, comprehensive and excellent that in an ordinary case it might well be adopted as the expression of our views in voting to affirm his decree. (See Matter of Burtis, 43 Misc. Rep. 437.) But the character of the case, the amount involved, and especially the fact that a large amount of evidence has been presented for the first time upon the appeal to this court, seem to render it proper that I should as briefly as possible state thei reasons which influence
I *63part of this court. Even though the opinion may go to a greater length than is desirable, it still will be impossible to discuss in detail all of the facts and issues which the counsel have zealously and skillfully urged upon our attention or to enumerate all of the reasons which lead us to our conclusions.
The fundamental question considered upon this appeal is whether this court is justified upon a mere printed record in setting aside, the judgment of a careful surrogate upon an issue of fact after he has spent weeks in hearing the evidence and watching the appearance of witnesses, and in sending back the case to be tried over at great expense before a jury who cannot possibly give to ascertaining the truth the care and attention which he did.
I do not believe the facts and the law warrant this course, and I shall take up their considertion in the order stated.
Albert G. Burtis died May 8,1903, aged fifty-nine years, possessed of an estate of about $250,000, and leaving as his immediate relatives his father and brother, the original contestants.
Some years before this his wife had obtained a decree of absolute divorce from him in this State, and there appeared after his death an alleged common-law wife, who, however, seems to have been eliminated.
v He established near Auburn a country home known as “ Spring-side,” where during the last years of his life he mainly devoted himself to the gratification of his social tastes and sensual instincts. He indulged in periodical drinking debauches, which were continued until his physical condition rebelled and compelled him to desist, and it was as the result of one of these that he seems to have died. There was no recognized female member of his household, even in the capacity of a servant.
At the time of decedent’s death the proponent was an unmarried Woman about twenty-two years old, ostensibly residing with her mother in Auburn. She sustained no relations of kinship to the testator, but became acquainted with him in 1897 or 1898, and during the last years of his life was an undoubted though surreptitious member of his household for a considerable portion of the time, and upon one occasion accompanied him to a distant health resort under the guise of a daughter. He, in turn, supplied the money which enabled her to enjoy various trips and advantages.
*64Without discussing it in detail, the evidence leaves no doubt in my mind, as it evidently did not in that of the learned surrogate, about the nature of the relations which existed between the two. The mother, Mrs. Bell, whether she originally procured them or not unquestionably knew of, acquiesced in and by her conduct permitted these relations. She attempted upon the trial to cloak them' with the suggestion that her daughter was accustomed to act,as secretary for the dead man, and also that upon his part there was desire for and contemplation of marriage. There is an abundance of proof, however, which’ demonstrates that they did not have for their end any such legitimate object as this, and that the only pur-pose of their maintenance must have been to secure as their price the Burtis property.
It seems as if any doubt which any reasonable person might have about these relations would be dispelled by reading the evidence drawn from the mother herself, stating how, after having a Christmas dinner at the house of Burtis, with him and her daughter, she drove back to Auburn just at night, leaving her daughter alone with him for three or four-days. It is impossible to interpret this kind of thing as indicating, as suggested in the prevailing opinion, true regard by the man for the woman and a character upon the part of the mother and daughter which would place them above suspicion of plotting for the Burtis money and engineering fraudulent wills. It is urged that it is an imputation upon the good repute of this mother and daughter to approve the views held by the surrogate. That is probably so. .But if, as it seems, the evidence shows beyond the possibility of reasonable doubt that one has encouraged and the other sustained improper relations with the testator for years, the denial of wrongdoing in connection with the alleged will must find -other support than claims of general good •character. And if these relations were maintained years without marriage what was their object other than to secure money ? The only question is whether the scheme has been made effective by the alleged will.
It was known that the deceased some timé before his death had made a will in favor of his cousin, Elizabeth Cornell, now Scott. Soon after his death the proponent produced two purported wills, one, that which was offered for probate dated May 26,1902, and the *65second apparently executed October 23, 1901. The body of each was in the conceded handwriting of the testator, and each in effect was the duplicate of the other in giving all the testator’s property to the proponent. The scene of the execution of each was laid in the house of proponent’s mother. Except for one Marshall, a former servant of the deceased, and to whose position reference will be made hereafter, no one outside of the Bell family came in contact with the alleged execution of either instrument, Mrs. Bell and her daughter, Mrs. Atkins, being the alleged witnesses to the first one, and Mrs. Bell and Marshall the witnesses to the last one.
In reaching a decision as to the validity of the purported will offered for probate, the respective parties and the surrogate have treated the earlier alleged will as an important feature, and manifestly this is so. If at that time Burtis did actually execute a will leaving all of his property to the proponent, it is certainly a very influential indication of his feeling and testamentary intentions towards her, and it is a foundation upon which properly may rest very beneficial inferences in her favor as one approaches the consideration of the purported will of the following May.
Upon the other hand, if contestants have proved that this former instrument never was seriously regarded or intended by testator as a will and that the purported execution by him is. a fraud, then certainly they have demonstrated that Mrs. Bell and her daughter were possessed of a desire for the estate of Burtis which was not bounded by any scruples of conscience and which would not be abandoned even if its fruition entailed the employment of criminal means.
The claim of the contestants is that this first instrument was written out by the testator when he was somewhat under the influence of liquor, and that it was never intended to be and never was in fact executed by him; that at the time when it was claimed that it was executed and witnessed in Auburn" by Mrs. Bell and her daughter, Mrs. Atkins, the latter was not there at all but was in the city of Chicago.
In determining the validity of this first will, the counsel for proponent insists that great weight must be given to the fact that the body of the instrument and the signature itself are in the conceded handwriting of .the testator; and inasmuch as the same thing is true *66of the handwriting in the body of the second will, that circumstance will be briefly discussed. '
It appears by the evidence of many witnesses, some of them called by the proponent herself, that it was not unusual for Burtis, especially after convivial drinking without extreme intoxication, to indulge in promises of generous gifts resting in future fulfillment. This was so habitual with him that those familiar with his ways attached no serious importance whatever to his promises. The witnesses Nino and Murphy, and proponent’s witness Marshall and others,, have fully described his characteristics in this respect, and the understanding upon their part that these bursts ’ of generosity did not indicate any actual consummation.
In the opportunity for influence furnished by his frequent fits of intoxication, more or less complete, and in the disposition to indulge in these fits of inchoate generosity might be found a sufficient explanation of the composition by Burtis of two unexecuted and ineffective wills. But in this case we can easily conceive of causes which might make indulgence in these forms more forced than spontaneous. If, under the controlling guidance of Mrs. Bell, she and her daughter were engaged in a scheme .to procure the property of Burtis in return for the daughter’s favors, it is not at all violent to presume that invitations were pressed upon the man to make property provision for the woman which in no other way could be so peacefully and cheaply satisfied as by an appearance of' intended compliance. Direct evidence is not wanting that he did thus temporize with their desires. The deposit by him in the bank of a package of securities, with proponent’s knowledge marked with her name but apparently under his control, in the light of the advice given to him by the witness Fanning as to the ineffectiveness of such a purported gift, seems to indicate a willingness to trifle With this subject of giving away property.
The witness Nino, who was for a long time his personal servant and attendant and who, so far as one is able to discover, had no object in committing perjury, testified specifically upon this subject in connection with the first will. He says that one evening after a period of convivial drinking, while witness, proponent and testator were alone at Springside, the latter wrote out and signed that instrument with remarks and signs to witness which fully indicated *67that lie did not intend it as a serious document, but as a joke; that as a matter of fact, when a short time after witness put his employer to bed, the paper was left unexecuted upon the table from which it had next morning disappeared under circumstances which might readily account for its subsequent possession by proponent.
! So that while, under ordinary circumstances, the fact that the purported will was in the handwriting of the testator might be very significant as bearing upon its validity, and while that circumstance in the case is undoubtedly a subject for due consideration, I do not regard it as by any means controlling or as outweighing the other testimony that neither instrument, as a matter of fact, was executed.
Much stress is laid upon the fact that the handwriting of Burtis is clear and firm and free from tremulousness, as indicating that he was not intoxicated when he wrote them. There is no evidence as to his condition when the last one was written or that he was intoxicated to the extent of physical incapacity when the first one was written. The evidence shows over and over again that he possessed capacity to drink enough to bring on his fits of pseudo generosity without at all impairing his physical, powers.
Then, too, it is said that it would have been very immoral for Burtis to pretend to execute a will in favor of proponent without intent actually to do so, and in the meantime to maintain his relations with her, and there are suggestions, not warranted as it seems to me by the evidence, about the debauching of a mere child. It may be conceded, so far as this case is concerned, that Burtis was not exemplary. But that does not lead to the other conclusion — that the proponent and her mother were either innocent in their relations or duped by him. At the time of his death the proponent was about twenty-two years old, and there is no evidence of unworldly innocence upon the part of the mother. They knew whether he executed the will or not and I fail to discover in the history of what took place at Springside any controlling moral reasons for diverting this estate to the proponent. It is not an uncommon history that illicit relations produce fraud, deception and crime, and I do not believe that either the community or the courts have yet reached the point of making them an equitable basis for diverting a man’s estate from his legal heirs.
*68The parties have offered some general observations as to the probability that the testator would have made and executed the second will if he had, in fact, executed the former’one, making just the same disposition of his property as the later instrument. Mrs. Bell swears that the explanation of this lay in the desire to have his will written upon a blank form. It seems to us, however, that if he had executed the later instrument as a mere formal expression. of his testamentary desires after executing the prior instrument, he would have been apt to take up and destroy the earlier one which was thus superseded, and not leave them both outstanding in the possession of the proponent. There would be no excuse or reason for leaving them .both with her.
Upon this issue, however, general observations must yield to specific proofs. The parties have accepted and proceeded upon the theory that if Mrs. Atkins was present in Chicago at the date of the purported execution, then the instrument was not executed as claimed but is fraudulent.
Much testimony has been offered upon this point. A large part of it was heard and considered by the learned surrogate upon the production before him of the witnesses who gave it, but, as stated, considerable new evidence has been taken in Chicago since the case came upon appeal into this court. A careful review of all of this testimony does not create in my mind a disposition to reverse the conclusion adverse to proponent which the surrogate formed after listening to so many of the witnesses as were produced before him. If we leave out of account the question of Mrs. Atkins’ absence from Auburn, the evidence of the witness Nino, read by itself, if true, makes it very improbable that the testator ever intended to or did execute this paper as his last will and testament, and there are many reasons which persuade us to believe that the. witness did tell the truth.
Passing by his testimony, I believe that a fair preponderance of the remaining evidence warrants the conclusion that Mrs. Atkins was in Chicago instead of Auburn at the date involved.
It is proper "to keep in mind certain facts undisputed or overwhelmingly established by all of the evidence as a basis by which to weigh other testimony of the witnesses. Mrs. Atkins was,in Auburn in August, 1901, and again in the Spring or summer of *691902. She and her family moved from one apartment house in Chicago to another in October, 1901. The household goods were moved into the latter apartment October fifteenth; the family did not move in until the afternoon or evening of October nineteenth. I speak of these details because we believe that what I regard as the inaccurate evidence of certain witnesses as to her absence from the Chicago flat after October nineteenth, and her presence in Auburn during that time, results from a confusion with the periods, when she was absent from her Chicago flat prior to October nineteenth, and was present in Auburn before and after October, 1901. While many of the witnesses sworn in behalf of proponent both from Chicago and Auburn to sustain the claim that Mrs. Atkins was in the latter city when the will was executed, are subject to circumstances which discredit, their testimony, others there were who undoubtedly intended to tell the truth, but who without any adequate means of fixing dates, made errors in their testimony.
Upon the other hand there were various reliable book entries and other facts which strongly corroborate the evidence of contestant’s witnesses as to the whereabouts of Mrs. Atkins, and I think that the evidence of the persons who roomed in Mrs. Bell’s house at the time Mrs. Atkins was said to be staying there in October, 1901, that they neither saw nor heard of her is especially convincing. I can understand, how a witness with nothing to aid his memory might be mistaken in his recollection of the particular time two or three years past when he saw a certain person, but it seems to me quite improbable that witnesses of the class called by contestants should be mistaken in their positive testimony that they did not see or hear of a person in the same house with them for a long period of time covering the one-in dispute. If Mrs. Atkins had been in the house her presence would have been made manifest in some way to these people, and if they had seen her, or even heard of her being in the house with them, I do not believe that this fact would be so obliterated from their memory as to leave it blank upon that subject. It is, perhaps, not so trifling as to be unworthy of notice that Mrs. Bell herself, as we must assume after more or less consideration of this subject, fixed the date of her daughter’s alleged arrival at Auburn in October, 1901, differently than did the daughter, and her version was subsequently overwhelmingly con*70tradicted and abandoned by the other witnesses. Assuming an intention to be truthful, she furnished a significant illustration of the errors which may have crept into the testimony of proponent’s witnesses upon this point.
Concluding, therefore, that the evidence produced before the surrogate warranted his decision that this instrument never was executed as claimed, and that the additional evidence presented to us does not seem to be sufficient to change the .result arrived at by him, we come to the consideration of the instrument offered for probate.
The evidence of the proponent is to the effect that this paper was written by Burtis at Iris home; that in the evening of the day in question he with Marshall came to Mrs. Bell’s house, where -the instrument was signed by the testator and acknowledged before and executed by Mrs. Bell and Marshall as witnesses. No outsider was present. In disputing the validity of this instrument and the genuineness of testator’s purported signature, the contestants -have largely, although not exclusively, by their witnesses, urged the theory adopted by the surrogate of a double tracing, first from the name at the top of the will to an independent piece of paper, and then from the latter to the signature at the bottom of the will.
A great volume of evidence has been presented upon this question of the genuineness of the signature. Several professional experts of high standing have been sworn upon either side. In addition, a very large number of men experienced in the examination of signatures, such as bank officers, have been sworn upon each side. Many of those called in behalf of the contestants, by actual experience during his life, had become acquainted with the signature of Mr. Burtis. Many hundreds of exhibits of the signature were put in evidence.
It is impossible in the most general way to even summarize all of this evidence so as to state all of the reasons found therein which, in my opinion, amply sustain the finding of fact made by the surrogate against the genuineness of the signature.
The witnesses for the contestants have especially referred to four features which distinguish the disputed from the ordinary standard signature of Mr. Burtis, namely :
First. The difference in pen pressure or shading in letters which in a general way in the genuine signature ordinarily commenced *71with the beginning of the downward stroke and in the disputed is most apparent near the base line.
Second. The manner in which lines in various letters, especially capitals, in the disputed signature commence bluntly as from a point instead of what might be called a “ flying start,” as is seen in the standard.
Third. The difference in formation of particular letters in the disputed as compared with the standard signature. It may be mentioned as a very limited illustration of this, that in. an examination of between 1,300 and 1,400 signatures, proponent’s expert witness Hamilton only claims to have found a very few formations similar to that seen in the disputed signature, of the well-formed three-sided “r” in “Albert;” of an initial “A” with a blunt closed top and a loop feature at the left of the stem; of the close proximity of the letters “1” and “b” in “Albert,” and of the stilted or long stem feature of the capital “ Gr ” and the blunt appearing stem of the capital “ B.” It is a matter of interest to compare the formation of the letter “ r ” referred to in “ Albert ” with the same letter in the word “ Sarah ” of the witness Mrs. Bell.
Fourth. The hesitation, change in direction, change in movement and the tremulous, labored, halting, self-conscious general appearance of the disputed signature as compared with the free, vigorous and rapid appearance found in the genuine one. This last feature is especially noticeable to any one who examines the signatures and the enlarged photographs which have been used.
The theory of a tracing is sustained by a large number of point measurements showing an exact similarity between the name at the top of the will and- the disputed one at the bottom, and also by superimposing the photograph of one over the other. It is urged that the doctrine of tracing and that of dissimilarity in letters do not go together. The evidence, however, of the witnesses Osborn and Truesdell, as well as of others, makes it very clear that an inexperienced person attempting to make a tracing of one signature over another would find the greatest difficulty in making all of the letters exactly coincide in all of their details, and that especially in a double tracing one would expect to find just such dissimilarities as have been pointed out between the disputed and the standard signatures. Moreover, it might very well happen that a person *72attempting to make a forgery in this manner, while preserving the general accuracy of the main features in the signature, would attempt to fill in parts of letters by a free-hand forgery which would result-in dissimilarities.
Upon the other side I am impressed that the proponent is constantly put in the attitude of explaining and apologizing for and defending the abnormal features and characteristics of the purported signature.
Several of the semi-professional experts called by her admit that the difference between it and the standard signatures is such as would have excited suspicion and exacted investigation .before payment of a check.
One of her most important and learned experts, Prof. Frazer, admitted that when as the result of two or three weeks of investigation he came to the conclusion that the signature was genuine he was astonished that he did so come to it. His means of journeying thither was a subtle and refined theory of similarity in tremograms and serrations which Was peculiarly his own and which was bitterly attacked by the other experts.
Another of proponent’s important experts, Hamilton, admits that if the signature is genuine it is one “ with abnormal features,” and as the result of an infinite amount of pains and experimenting with pens and ink he is" constrained to conclude that this signature could only be produced by a pen with one broken nib held between the first and second fingers at an unusual angle and passing slowly over the will when laid upon a book covered with a corrugated surface exact to the thousandth part of an inch and using ink which could be most nearly reproduced by combining two different kinds which mixed up were allowed to stand for a time with rusty pens thrown in.
In addition to attempting to supply these unfavorable conditions as an excuse for what is seen, Mrs. Bell placed the testator at the time of writing his signature in rather a low rocking chair.
And so we find urged one theory that the slow and labored appearance of the signature is due to the extreme care which the testator may have been supposed to exercise in signing so important a document, and another one that lie was so indifferent that he wrote it-under all the adverse conditions which could" well be imagined.
' The attempt also is made to sustain the validity of the signature *73by showing that, the interlined words “ I give ” in the body of the will were written- in the same ink as the signatures of the testator and witnesses and which was different from that used in the remaining body of the instrument, the inference urged being that the genuineness of the interlined words and of the witnesses’ signatures create a presumption in favor of the genuineness of the testator’s signature if made at the same time. The evidence of proponent’s witness Frazer, however, shows that this claim to similarity of ink is not at all reliable, and he further shatters the proposition that the interlined words, the testator’s signature and the witnesses’ signatures were all written at the same time at Mrs. Bell’s house by stating that so far as his experiments show anything they show that three different kinds of ink were used, one for each.
Moreover, I think that the interlined words display a characteristically free and easy style of writing which strongly rebuts the claim that at the same time the writer produced the halting and deformed signature in dispute.
Upon the trial the parties attempted to fortify their respective positions with reference to the signature by various corroborative lines of proof.
There were alleged statements by the testator upon the one side that he had willed or was going to will his property to Miss Burgess, and upon the other in effect contradicting any such act or intention.
There was evidence by several witnesses tending to show that the witness Marshall upon the evening of the purported execution of the will was not in Auburn at all but in Springside. And there were alleged admissions by him to various reputable witnesses utterly at variance with the fact that he had witnessed this will. And still further his reputation was directly impeached by witnesses sworn for that purpose, and to all of which he attempted to reply by the sustaining evidence of himself and others.
In addition to the package of securities already referred to which, if a valid gift, gives her about $60,000, proponent claims to possess two notes made by testator, one- dated May 12, 1899, for $1,000, and another dated February 4, 1903, for $10,000, and it is urged that these, especially the last, are not consistent with the existence of a prior will giving all of the maker’s property to the payee.
In addition we have the significant fact that the proponent did *74not offer herself as a witness to explain and fortify many things which lay within her personal knowledge. It is hardly an answer to say that she would have been disqualified and prevented from testifying to many things. Even if it be assumed that this objection would have been made at various points, we think there were others at which she could not have been stopped from strengthening her case if true.
But it is not necessary to go this length in order to affirm the decision of the surrogate. The proponent offered the will for probate, and the burden rested upon her of establishing by a preponderance of evidence that it was legally executed and Was not a forgery and a fraud. If she has failed to meet this burden and has left the.solution of the question upon evenly balanced testimony she must fail. (Matter of Will of Cottrell, 95 N. Y. 329, 335; Rollwagen v. Rollwagen, 63 id. 504, 517.)
But it is urged, and the majority of this court seems to hold, that a different rule applies to the consideration of this appeal upon the facts from that which would govern the disposition of a similar appeal from the decision of another tribunal upon such an issue, and it is said : “ If * * * it appears that the disposition of the questions of fact raised by the evidence is not free from doubt and the surrogate’s decision is not entirely satisfactory, the questions of fact will be sent to a jury for determination.”
. It is difficult to determine just what significance is given in the controlling opinion to the qualification that the surrogate’s decision must be “entirely satisfactory.” If this rule means that every surrogate’s decision will be reversed, where either the evidence fails to make a mathematical demonstration free from all doubt or the appellate court does not like the effects of the decision, then it is an imposition upon litigants to require them, to waste time and money in trying their cases in the Surrogate’s. Court. For it is almost impossible to conceive of any disposition of a question of undue influence, testamentary capacity or forgery which would comply with these requirements. The more severely contested and the longer and the more burdensome in expense any contest was in the Surrogate’s Court the more certain it would be under this rule that time and money were being wasted and that ztlie decree of the surrogate would be reversed and a new trial ordered.
*75The case of Matter of Lansing (17 N. Y. St. Repr. 440), cited with approval in the learned prevailing opinion, would almost seem to imply that this was the rule therein. contended for, because the opinion in that case states: “ It is our duty to examine the case de novo, and unless we are satisfied that the probate should be granted, and have no doubt on that point, we should reverse the decree and order issues to be tried.” It does not seem to me that either common sense, the statutes or the decisions sustain any such rule or require a reversal of the decree involved.
It is to be noticed that, as we read it, the prevailing opinion nowhere argues that the findings of the surrogate were against the weight of evidence, but simply reiterates the idea that the evidence did not settle the issues beyond any doubt or question.
There is nothing in the statutes relating to the consideration of appeals from Surrogates’ Courts which in terms lays down any such rule as the one suggested, and it seems to me that the well-considered cases, several of them decided by this department, which ought to be binding upon us, have applied this principle of reversing a surrogate’s decree and ordering a new trial only to eases where the evidence presented unusual features which weighed against the decision rendered or was such as to make-the appellate court in a legal sense dissatisfied with the decision rendered because the evidence did not satisfy them of its correctness but preponderated against it.
In Howland v. Taylor (53 N. Y. 627) — cited as,an authority for the Lansing case referred to supra—the surrogate had admitted a will against the claim of forgery, and in a brief memorandum the court held that while the facts appearing were not sufficient to satisfy them that the will was a forgery, yet they were not sufficient to convince them of its genuineness, leaving the matter in doubt and uncertainty. That was a perfectly natural and sensible decision: The burden rested upon the proponent to establish that the will was properly executed and not a forgery, and if the evidence failed,, to meet that burden and satisfy the court by a fair preponderance that the decision was correct, it was its duty to reverse it upon the facts under the ordinary principles applicable to the consideration of an appeal upon questions of fact.
In Matter of Brunor (21 App. Div. 259), cited in the prevailing opinion, a decree had been made admitting a will to probate over *76various objections. The court starts out with the language, “ In many respects the case presents unusual and remarkable features to which, we may briefly refer,” and then concludes that the proponent had so far failed to Sustain the burden resting upon him as to leave the questions in doubt, and a new trial was ordered.
In Matter of Dixon (42 App. Div. 481) the decree appealed from again had admitted the will to probate. Mr. Justice Hardin in writing the opinion takes occasion, after a review of' the facts, to-expressly state that the evidence given by the lawyer who drafted the will and the testimony of the physician and attendants who-were the material witnesses for the proponent “ leave much doubt in the mind as to whether the will was the product of an independent, intelligent understanding.” Again, it is evident that the- court felt that the proponent had failed to meet the-burden of proof, but had left the issues in evenly balanced doubt, which of necessity required a rejection of the probate and the reversal of the decree.
The case of Matter of Tompkins (69 App. Div. 474) contains a very brief opinion which is predicated upon cases already referred to and needs no-particular comment.
- The case of Matter of McGraw (9 App. Div. 372) was decided by this department, and the surrogate had refused to admit a will to probate because of alleged lack of testamentary capacity.; The case was decided by a divided vote and. the majority concurred in-the opinion that upon the substantial question involved, “ 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.”
■ In Matter of Shannon (11 App. Div. 581), decided - by this department, the surrogate decided that a certain codicil was null and void, and this part of his decree was under consideration upon the appeal. In reversing it and ordering a new trial before a jury the court says : “ A full consideration of all the evidence disclosed in the appeal book leaves an impression that the bequest to the Dundee Baptist Church was not induced by improper influences, and that the finding of the surrogate to the effect that the bequest * * * was the result of fraudulent practices, amounting to Undue influence, is of doubtful propriety.” And, further: “ We *77are not satisfied with the finding made by the surrogate that the bequest * * * was induced by undue influence, and we must, therefore, direct the issues, as settled, to be tried at a Trial Term.” This opinion is significant as indicating the belief of the court that the decree was against the weight of evidence and that the meaning of the words “ not satisfied with ” a decree in such a case is intended to define the feeling that it is unsatisfactory because against the weight of evidence.
In Matter of Van Dawalker (63 App. Div. 550), decided by this department upon the opinion of Mr. Justice Williams, it appeared that the surrogate had at first admitted the will to probate, and that then, opening the case for more evidence, he had reversed his first decision. The court, in reversing his last decision and ordering a new trial before a jury, says: “We are of the opinion the evidence so received was incompetent and * * * was not of sufficient importance to justify the surrogate in changing his former opinion and refusing probate to the will.” And, again: “ Moreover, we are unable to see how these admissions or declarations could have induced the surrogate to change his well-considered decision already. made. They were at best the opinions of non-experts * * * and ought not to have outweighed the considerations referred to in the surrogate’s opinion already handed down.”
In Matter of Rayner (93 App. Div. 114), decided by this department, where the surrogate had refused to admit a-will to probate, the court says, “ The testimony of Dr. York, her attending physician, does not seriously impugn her testamentary capacity,” and inasmuch as reliance was placed upon his testimony to accomplish this result, the court held that there was sufficient doubt about the correctness of the decision so that a new trial ought to be granted.
In Matter of Laudy (148 N. Y. 403) an appeal was taken from a judgment upon the decision of the General Term, which reversed a decree of the surrogate which refused probate to a will. The court, in passing upon the powers of the appellate court, under section 2586 of the Code of Civil Procedure, says “that court is given broad powers under the provisions of the Code referred to, and, in the exercise of its sound judgment and discretion, may reverse in case it becomes satisfied that substantial justice has not been done.” The rule thus enunciated seems to me to be about the same one which *78is applicable in other cases and not to sustain the rule formulated in this case. I do not overlook the fact that the attempt is made to escape from an interpretation- of the rule, as meaning that there should be a reversal unless the evidence practically amounts to a conclusive demonstration. But a consideration of the entire opinion seems to oppose the qualification thus attempted to be made, because the review of the evidence each time simply leads up to the proposition that some question is left “in doubt.”
As an aid to the practical consideration and interpretation of the principles to be applied to the decision of this case, it might well be asked whether it is probable that any doubts now existing will be more satisfactorily eliminated when the parties have spent a great amount of time and money in resubmitting the evidence which fills 1.000 pages and exhibits which number in the neighborhood of 2.000 to the necessarily cursory and limited consideration of a jury.
It is possible that upon such retrial before a jury a fuller opportunity will be given for magnifying extraneous considerations and urging alleged equitable considerations than upon the former hearing, but it is practically impossible that a jury within the time, and methods at their disposal should be able to give to the study of the legal evidence and exhibits the painstaking care and consideration which were manifestly given by the surrogate.
The decree should be affirmed.