If section 2653a of the Code of Civil Procedure is to have any intelligent arid practical operation, there can be no question that this action was properly brought after the adjudication of the Surrogate’s Court, and the affirmance of the decree on the part of this court. (158 App. Div. 894.) The purpose of the statute was to permit interested parties to have a new trial of the issues before a jury, and it was competent for the parties to waive a jury and permit the court to determine the facts.
The learned trial court, in an opinion (88 Misc. Rep. 667), has reviewed the facts in this case, 'and we are persuaded that the appellant has failed to show a case demanding a reversal of the judgment. The will of 1910, previously admitted to probate, was revoked by the subsequent will of 1912, and no question is here presented but that this latter will was executed with all of the formalities required by law. It is urged, however, that the fact that the will was drawn by the plaintiff, who appears to have been a lawyer, and that it results in some advantage to himself, brings it within the rule laid down in Matter of Smith (95 N. Y. 516) and calls upon the plaintiff to establish affirmatively *367that the will was not the result of fraud or undue influence. But the rule as recognized in Matter of Smith does not go to the extent urged by the defendant, for it was said that the “rule to which we have adverted seems, however, to be confined to cases of contracts or gifts inter vivos, and does not apply in all its strictness at least, to gifts by will. It has been held that the fact that the beneficiary was the guardian, attorney, or trustee of the decedent, does not alone create a presumption against a testamentary gift, or that it was procured by undue influence. ” In the present case, while there is a suggestion that the plaintiff was a lawyer, it also appears that he was the husband of the testatrix, living with her at the time of the execution of the will. It appears likewise that he drew the will of 1910, and that he was beneficiary under that will, and that the testatrix had previous to the execution of the will of 1912 invited two of her neighbors in to witness the execution of a will which was to change the former one. No evidence whatever appears in the case which could justify the conclusion that the testatrix was under any pressure at the time the will was executed, and unless this husband, acting to all appearances in a natural manner, is obliged to rebut a presumption of fraud from the mere fact that he was an attorney, there is no foundation for this appeal. We think there is no such burden imposed upon him by law; that fraud must be proved against him before he can be deprived of his rights. The mere fact of a man being an attorney does not outlaw him; he may still become the beneficiary of his wife’s will, or of her failure to dispose of all of her property by a will, and, while the court would not fail to look into suspicious circumstances, and perhaps to hold a lawyer to a higher accountability than a layman under the same circumstances, we think in the case at bar the court has properly considered the facts, and that the conclusion is one justified by the record.
1 The opinion of the trial court makes it unnecessary to gc further into the details of this case.
The judgment should be affirmed, with costs.
Judgment and order reversed on law and facts, with costs, and the complaint dismissed, with costs. The court disap*368proves of the fourth, fifth and seventh findings of fact and the first and second conclusions of law, and finds that the will of June 17, 1910, was the last will and testament of the testatrix and that the paper dated March 19, 1912, was not her last will and testament, and that the execution of said last paper was obtained by the husband, the party chiefly to be benefited thereby, by fraud practiced by him upon her and was not her free and voluntary act.