The decree should be affirmed, with costs to all parties payable from the estate.
The ground upon which the surrogate denied the will probate was, in brief, that he was not satisfied that the deceased knew or understood that the will gave Cristman all his property, subject only *205to the provision for the care, support and maintenance of his sister Eva.
This conclusion was a very proper one, considering all the facts and circumstances surrounding the making of the will. I think it would be most unfortunate to reverse the decree and send the matter to be tried before a jury. The litigation over the will has already cost the estate, aside from the ordinary expenses of administration, $7,405.03. The attorneys, as appears by the decree, agreed to allowances which aggregate this large amount. They were made by the surrogate. ISTo appeal has been taken from such allowances, or the direction to the administrator to pay them, and we may assume the money has found its way into the lawyers’ pockets and is lost to the estate, whatever may be the future course of the litigation. ' The deceased left, at his death, a farm worth $2,000, and personal property worth $25,000, as found by the surrogate. The practical effect of a continuance of the litigation by another trial before a jury would be to enable the lawyers to absorb substantially the balance of the estate. The parties have had one full, fair, impartial trial of the issue of fact involved, and the decision made by the surrogate is quite as likely to be just and right as the verdict of any jury would be. The appeal here is by the executor named in the will and by him alone. Cristman, the only person now living who is interested in the property under the will, does not appeal. It must be assumed, therefore, he has acquiesced in the decree of the surrogate.
In Matter of Richmond (63 App. Div. 491), where an administrator appealed, this court by Presiding Justice Adams said: a The only persons having any direct interest in the determination of these questions are the legatees and beneficiaries named in the will. All these persons are of full age; they were made parties to and appeared upon the accounting, and as none of them has joined in the appeal it must be assumed that they acquiesce in the decree of the Surrogate’s Court, which in effect settles and determines their rights and interests as between themselves.”
In Isham v. N. Y. Assn. for Poor (177 N. Y. 222) Judge Gray said: “ In my opinion the executors were not authorized to take this appeal and to continue the controversy; when those directly • concerned in the determination of the question had acquiesced *206therein. I do not think they have any standing in court to complain further as to a result which did not affect them.”
While this appellant, by reason of being named as executor, may have the strict legal right to appeal, yet the fact of the acquiescence of the sole legatee in the decision of the Surrogate’s Court should have a bearing upon the decision by this court.
The executor is interested only to the extent of the fee he would receive from administering the estate if the will should be finally admitted to probate. He has been appointed temporary administrator pending the contest over the will, and his fee as such will be as much as his fee as executor, so that he really has no interest at all. Would it not be a scandal to reverse the decree and order a trial before a jury in view of the suggestions already made?
But to go into the merits a little: The deceased was never married. He was eighty-two years old when the will was made in 1895, and was eighty-seven years old when he died in 1900. He had seven sisters originally, four of whom had died before the will was made, leaving children. Two sisters were living, one Angeline and the other Eva. Angeline had been married, but had had no children. Her husband had died and she had some property. She was afflicted with cancer of the stomach, could live but a short time, and did die July 2, 1895, within a month after the will was made. Eva was weak-minded, and had been since her birth, and had no property at all; was dependent on her living sister and brother for care, maintenance and support. Angeline had made her will without providing for the support of her sister, it apparently being considered the duty of the brother to care for her during her life. On the occasion the will in question was made Angeline was persistently urging her brother to make his will so as to provide for the sister’s care during the remainder of her life, and threatened to destroy her own will unless the brother at once made his will and provided for Eva. The brother had been quite indisposed to make a will, and only consented to make one on this occasion by reason of the insistence of his sister Angeline, and she was urging it solely for the purpose of providing for Eva’s support. But for this consideration it is apparent from all the evidence no will would have been made, and the property left by him would have descended to and been distributed among his relatives as pro-' *207vided by law in cases of intestacy. I think it very reasonable to suppose that the only object he had in making a will, the only thing that was brought to his special attention and understanding, was the care of his unfortunate sister. Cristman, the sole residuary legatee under the will, turned up just at this time. His wife was a cousin of deceased. They lived some distance away, and had no particularly intimate relations with him. Mrs. Cristman came with him on this occasion. They had been to the funeral of a relative in the locality, and after the funeral came to the house where deceased and his two sisters lived to see Angeline, who was very sick and was not expected to live longer than a few days or weeks. The Cristmans knew of Angeline’s desire to have deceased make a will. There was a good deal of talk about it that day. A Mrs. Shoemaker, cousin to Mrs. Cristman, was sent for, she living near by. She came over to the deceased’s house and remained there and helped about the house during the day, and became a witness to the will. Angeline held a note against her of $600. There was talk about her making Mrs. Shoemaker a present of this note and Cristman interested himself in the matter and procured Angeline to produce the note and deliver it up to Mrs. Shoemaker. Then he undertook to, and did, draw the will in question, and attended to the execution of it. There is more or less doubt as to the formal execution of the will, the evidence being very unsatisfactory upon this subject. But we are not particularly interested in this aspect of the case. Assuming that there was a formal legal execution of the will, and that the deceased had sufficient mental capacity to make a valid will, the question we are interested in still remains, whether deceased understood and appreciated that the will gave all his property to Cristman, subject only to a provision for the care, maintenance and support of his unfortunate sister during the remainder of her life. Mrs. Cristman was a witness to the execution of the will, but her evidence in no way aijls us in determining the question suggested here. The only witness who gives evidence directly upon this particular question is Mrs. Shoemaker. She testifies to a 'few words of conversation between Cristman and deceased, in substance, as follows : That deceased wanted his property left for Eva's care and support while she lived, and then to go to Cristman. I do not pretend to give the precise language witness used. She stated it differently at dif*208ferent times during her examination as a witness. Her evidence was given in September, 1900, more than five years after the will was executed in June, 1895. It is not at all likely tfiis woman could recollect the language used, so as to be at all certain what it was, after so many years had elapsed, and it is no wonder, therefore, that she used the different language she did in her evidence. And then she testified in substance that the will was read over to deceased and he said it was as he wanted it. She at most heard the will read over once and I have no idea she could be certain, after five years, that what she heard come from the lips of Cristman as he read or pretended to read to deceased what he had written down in the will was in fact the same language that the will contained when it was produced before the surrogate. I cannot undertake to quote the language of the witness, or the questions asked by counsel. I have read them all over, and it strikes me as entirely unreliable for the purpose of establishing the fact sought to be proved, that deceased understood and appreciated that he was, by the will, giving Cristman all his property, subject only to the provision for his sister Eva’s care, support and maintenance. Cristman, the only person benefited by the residuary clause, drew the will. Judging from the language employed by him, and from the evidence in the case, he was a keen, intelligent man. He was dealing with an old, infirm man. No one else shared in their talk with reference to the contents of the will. The deceased did not read the will himself, and we can appreciate how easy it would have been for Cristman to prevent deceased from knowing or appreciating the real effect of the language used. There was a confidential relation existing between the parties, and under the circumstances it is incumbent upon the interested party to show that this confidence was not abused, and that the will was the voluntary expression of the wishes of the deceased, and that there was no improper influence or deceit practiced in procuring the will to be made. The relation of the parties and the circumstances here create a suspicion of wrong on the part of Cristman, which he is under legal obligation to overcome and to show good faith and honest dealing. The surrogate and this court must be satisfied that the will was the voluntary act of the deceased, uninfluenced and without deceit. How can it be said, in view of all the evidence of the statements of the deceased, and all the cir*209cuinstances surrounding the case, and the wobbling, uncertain evidence of Mrs. Shoemaker, her relations to Cristman growing out of the $600 note transaction, and the interest Cristman had to procure a will in his own favor, that the suspicion, the presumption of wrong and deceit, has been overcome? How can it be said any jury would come to a different conclusion than that arrived at by the surrogate ?
It seems to me under all the circumstances that the decree should be affirmed, the litigation stopped, and what property there is left be distributed in accordance with the statutes to the heirs and next of kin. We ought not, on the appeal merely of the person named as executor in the will, when the two sisters are dead and Cristman has acquiesced in the decree by failing himself to appeal therefrom, to order a retrial of the case before a jury.
I suggest that the decree be affirmed, with costs to all parties payable from the estate. The executor will then get his fees as administrator, etc., and will not suffer pecuniarily, and "he is the only person having any legal interest in reversing the decree, because he alone appeals.
McLennan, P. J., concurred.
Decree of Surrogate’s Court reversed, and a trial of the following issues of fact directed to be had, as provided by section 2588 of the Code of Civil Procedure, by and before a jury of the Supreme Court at a term thereof to be convened at the village of Herkimer, in and for the county of Herkimer, on the first Monday in June, 1908, to wit: First, did James Eckler possess testamentary capacity at the time of the execution of the alleged will bearing date June 12, 1895 ? Second, was said alleged will signed and duly executed by the decedent? Third, was the execution of said alleged will procured by fraud or undue influence practiced upon him?