Section 10 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), in harmony with section 15 of the same act, provides that “ All persons, except idiots, persons of unsound mind and infants, may devise their real estate, by a last will and testament, duly executed, according to the provisions of this article,” and if the statutory provisions are to have any substantial value, and this right is to be preserved, it is important that the issues should be tried *136patiently, intelligently and honestly, whenever the validity of a testamentary instrument is brought in question.
A careful reading of this record convinces me tl at the will of Sophia Morison should have been admitted to probate; that there was no evidence, entitled to consideration, which could justify the answers to the four questions propounded, and that the court erred in its charge to the jury. While there was no exception to the charge, the proponents did, on the coming in of the verdict, move for a new trial upon the grounds stated in section 999 of the Code of Civil Procedure, and the question is still open to them. (Lesin v. Shapiro, 147 App. Div. 100, 104.) The nature of the case, the scope of the evidence, running through the entire life of Sophia Morison, who died at the age of fifty-two years, makes any error in the charge of the court of great importance, and it seems fitting, before entering upon a discussion of the trifling character of the evidence, and the distortions to which it has been subjected, to call attention to the attitude of the learned trial court, as evidenced by the charge to the jury. It is perhaps well to state, at this point, that there is no question raised that the will in question was executed in the form required by the Decedent Estate Law (§ 21), although the jury found to the contrary, practically upon the instruction of the court that all of the first three questions must be answered in the same manner, on the theory that if the testatrix was of unsound mind, or if the will was the result of undue influence, it could not have been legally executed, no matter what its form. This, of course, might be true as a matter of law, but the question fairly contemplated whether the will was drawn in the form prescribed by law, and, if it was, this was one of the conditions precedent to a valid will, and should be recognized as such. (Decedent Estate Law, § 10.) Such a question ought not to have been submitted to the jury in any event; it was a pure question of law whether the instrument conformed to the requirements of the statute, and in a case of this character fine distinctions ought to be avoided that the jury may devote itself entirely to the legitimate function of determining controverted facts.
The paper offered for probate not only conformed to all the requirements of the statute, but upon its face shows an *137instrument inconsistent with-the finding either that the testatrix was of unsound mind, or that she was overreached in its execution. It makes bequests to persons who must have been unknown to the attorney who drew the will, as well as to the proponent. None of these bequests is unreasonable; none of them is different from what might reasonably be expected of a person of the makeup of Sophia Morison and in her environment. She had been in litigation with her brother and sister in relation to the estates of her father and mother — litigations which always develop great bitterness in families — and she had but recently entered into a contract for the settlement of these litigations and all other matters between them. Under these circumstances her gifts of $100 each to the brother and sister, and a gift of $500 to the only daughter of the sister, are certainly consistent with a sound disposing mind and memory. Her estate was approximately of the value of $15,000, and, after the various individual gifts, including $1,000 to a Methodist church, and another $1,000 to a hospital where she received treatment, she gave her residuary estate to “ Reverend Edwin Corneille, now pastor of the Methodist Episcopal Church atMillbrook, New York,” and it is around this gentleman and his family that the storm centers. It was the theory of the contestants, without being able to show that he ever suggested in any manner the maldng of a will in his favor, that in some undisclosed manner this modest Methodist minister, who was concededly not her pastor at the time and could not be regarded as her spiritual adviser, had so far dominated the mind of this alleged incompetent that he was enabled to produce a perfectly sane and sensible will, in which he appeared as the principal beneficiary, without being present, and without his having been with her for a period of several months; and it is in this connection that the learned trial court, as it seems to me, fell into serious error.
The record shows that many years ago Mr. Corneille was the pastor of the church attended by the parents of Sophia Morison, and he appears to have been a friend of the parents and of Sophia, and this attitude, shared by Mrs. Corneille and her children, appears to have continued through the years. Nothing in the evidence tends to show that this was anything more than an honorable and honest friendship, such as *138intelligent and decent people often maintain, in spite of the. pessimistic assumption to the contrary which runs through the record where it is given color by counsel, and the fact that the decedent from time to time contributed small sums of money to Mr. Corneille, the father of a large family, or that she aided in the education of one of his sons, does not legitimately tend to show either that she was of unsound mind or that she was under the control of this man. Many good and sane women have done just such things in the times past; will continue to do them in the future, and, whatever we may think of the wisdom of so doing, it will not be counted against them, except in the minds of those who are bent on circumventing those wills which in life they were unable to master to their own liking. To these they will be, of course, incompetent; their acts will be irrational. The will was made and executed on the 11th day of March, 1915, and the record shows that while both Sophia Morison and Mr. Corneille were in the Methodist Episcopal Hospital of Brooklyn in the December previous, there is no evidence that he was there at the time, this will was made. On the contrary, the evidence shows that Mr. Corneille left the hospital about Christmas time. The learned court in its charge said that beyond the question of whether the decedent was insane or not, the jury must determine “ even though she had testamentary capacity, whether or not she was overreached by this warm and intimate relationship which existed between her and the residuary legatee under this paper; whether there was an undue influence exercised upon her so as to make it the will of Mr. Corneille instead of the will of Sophia Morison.” The court then continued: “ It appears that she went to Brooklyn to go to the Methodist Episcopal Hospital, one of the legatees in this will. That while there Mr. Corneille was also there during a portion of the time at least, as a patient, I believe, and you are to say whether he exercised any influence at that juncture at the time when this paper was executed; whether an influence was exercised to bring about the execution of such a paper, taking into account the language and intimate relationship that had existed for many years prior thereto.”
Counsel for the proponent interrupted and called the attention of the court to the fact that Mr. Corneille left the *139hospital in December, this will being made on the eleventh day of the succeeding March, but the court continued: “ He was there during the time she was there. If I am in error about that you will remember, gentlemen.” Counsel admitted that they were both there in December, and the court continued: “Yes, they were both there. At any rate they were both there together either at the time this will was executed or afterwards,” thus leaving the jury to understand that they were both at the hospital at the immediate time of making the will, when in fact there is no evidence to support the suggestion, and the proponents must have been prejudiced by such a remark. This, in itself, would not, probably, constitute reversible error, but it is made the foundation, with other remarks calculated to impress the jury with the idea that the residuary legatee is a designing person, for further discussion in which the court confuses, rather than clarifies, the issues to be presented. Herein, it seems to me, is the essential error of the court. The court says: “ Now, because of the fact that undue influence is alleged here I may perhaps enlarge a little upon that because of the long intimacy existing between Mr. Corneille and Miss Morison. There is a line of cases in this State holding that a lawyer, for instance, who procured a client of his to make himself a beneficiary, under the law must show that the will was made from proper motives and was not the result of undue influence. Where a patient makes a will of like character and makes his doctor the beneficiary, that will must be scrutinized with great care because of the confidential relation existing between the parties. It is also the rule where a person makes a will for the benefit of his spiritual adviser, his priest or his minister, such a will must have close and more careful scrutiny than though such person stood upon an equal plane and had no such relations existing between them. This principle applies to any case where there are close confidential relations existing between the parties.”
This is obviously not the law; it is certainly not the rule as between husband and wife — the most confidential relation known to the law — nor does it extend to the friendships existing between people, where no fraud is practiced. “ The law presumes in the case of guardian and ward, trustee and *140cestui que trust, attorney and client, and perhaps physician and patient, from the relation of the parties itself that their situation is unequal and of the character I have defined; and that relation appearing itself throws the burden upon the trustee, guardian or attorney of showing the fairness of his dealings. But while the doctrine is without doubt to be extended to many other relations of trust, confidence or inequality, the trust and confidence, or the superiority on one side and weakness on the other must be proved in each of these cases; the law does not presume them from the fact for instance that one party is a grandfather and old and the other a grandson and young, or that one is an employer and the other an employee. The question as to parties so situated is a question of fact dependent upon the circumstances in each case. There is no presumption of inequality either way from these relations merely. * * * These relations as a matter of fact may have led to or been consistent with controlling influence on the part of the grandson or childish weakness and confidence on the part of the grandfather, but this was to be shown and is not necessarily derivable or presumable from the relations themselves as in the case of trustee, attorney or guardian.” (Cowee v. Cornell, 75 N. Y. 91, 100; Ten Eyck v. Whitbeck, 156 id. 341, 353.)
' While the rule is stated positively in reference to guardians, trustees and attorneys, it is said that it perhaps includes the physician, but no suggestion is made that it extends to a minister, simply because of his profession, and where he is not shown to be the spiritual adviser. The learned court concedes, in continuing the charge, that “ Mr. Corneille was not the minister of Miss Morison, and had not been for years; he could not fairly be denominated, I take it, under the principle of this case, as her spiritual adviser,” which would clearly exclude him from the class of relationships which give rise to any adverse presumption. “'But,” the court continues, “ he was, as the evidence shows, a person who had a very close and confidential relation existing with her, and that relation had been established by this long acquaintanceship, and by the fact that he had known her many years before, and had kept up that acquaintanceship. It is shown, not only by the correspondence between them, but by the correspondence between the wife and by the letters of the *141son written to Miss Morison. So it may be fairly said that they had a close and confidential relation existing between them. Therefore, where undue influence is charged it is for you to take that into account in weighing the testimony and seeing whether because of that relationship he not only was enabled to but did in fact exercise such an influence upon her that this was his will and not her will; that he procured her to do what he wanted her to do and what she otherwise would not have done if she had not been subject to his influence.” It seems clear to me that the jury could not have failed to understand from this charge that because Mr. Corneille was a minister, and had known Miss Morison for a long period of years, he was bound to establish that he did not influence the testatrix in making this will. That is, any intimate friend must accept the position of a legatee under the presumption that he has abused that friendship; that is the essence of this charge, for the mere fact that Mr. Corneille is a Methodist minister, instead of a blacksmith, cannot affect the question, where it is not pretended that he was in any sense her spiritual adviser. It seems to me that all reference to a special rule which has no relation to the particular facts which are within the general rule, could have no other result than to prejudice and mislead the jury, and thus defeat the true purpose of a judicial investigation. This charge must have prejudiced and misled the jury, for it obviously had this effect upon the court; it led the court to say that in spite of the fact that Mr. Corneille was not the pastor or spiritual adviser of the testatrix, and not not been for years, yet that “ it may be • fairly said that they had a close and confidential relation existing between them,” and that it was the duty of the jury “ to take that into account in weighing the testimony and seeing whether because of that relationship he not only was enabled to but did in fact exercise such an influence,” etc. A confidential relationship is not a friendship; we may love one in whom we have no confidence in a business way. We may even love those in whom we repose no confidence whatever, and it is a misuse of language to confound a confidential relationship, in law, with a friendship which might prompt us to give even where we question the wisdom of the gift. “ The meaning of ‘ confidential/ ” say the court in People ex rel. *142Crummey v. Palmer (152 N. Y. 217, 220), “ has two elements, that of secrecy and that of trust and confidence. Confidential relation, in law, as defined by the Century Dictionary, is a relation of parties in which one is bound to act for the benefit of the other and can take no advantage to himself from his acts relating to the interest of the other. Such a relation arises whenever a continuous trust is reposed by one person in the skill or integrity of another.” No such relationship is suggested here; all that is disclosed is a friendship enduring for many years between Mr. Corneille and his family and Miss Morison, and the suggestion that this subjected him to suspicion, or to the presumption of fraud which is involved in undue influence, is utterly without justification, and, in my judgment, constituted such error as to demand the reversal of this decree.
And it is to be observed that this alleged “ close and confidential ” relationship, which had existed for years, was apparently found by the same jury which found that Miss Morison was of unsound mind and incapable of making a will. This insane and irresponsible woman, full of strange conceits, changeable, erratic and generally unattractive, we are asked to believe was at the same time capable of a sustained relation with Mr. Corneille which made it obligatory upon him to show to the satisfaction of -the jury that he did not supervene in the making of this instrument and cause it to reflect his will rather than that of Miss Morison. The two propositions are wholly inconsistent with each other. Either this woman was not an erratic, changeable and vacillating lunatic, incapable of making a will, or she was not capable of the “ close and confidential ” relationship which the court charged as existing. A close and confidential relationship existing for years with a lunatic is unthinkable; it presupposes a continuity of responsible thought and action, which is impossible to a person of unsound mind, and the holding of the jury that there was undue influence, resting upon the ground work of this alleged close and confidential relation on the part of one whom they have adjudged to be a lunatic, shows conclusively that they must have had a prejudicial viewpoint, the foundation of which must be found in the charge. If the jury erred in finding her to be mentally incapable of making a will, and it be assumed *143that she was capable of a lasting friendship, then she had a right to make the gift which she did make to her friend, and there is not' a particle of credible evidence in this case to show that he in any manner assumed to determine what her will should contain.
The evidence is to the effect that nearly three months after Mr. Corneille had left the hospital, and, so far as appears, without having seen him in the meantime, this alleged lunatic sought out the secretary of the Methodist Hospital and went to the office of reputable attorneys, occupying a recognized position at the bar, and there dictated the terms of a will which is in all respects such an instrument as would be expected under all the circumstances. She told her attorneys the amount of her property, which the evidence discloses to have been an intelligent estimate of the value of her estate; she made specific bequests to her brother and sister, explaining that the amounts were purposely small, owing to the troubles which they had caused; she made a substantial bequest to her niece; she made other bequests to friends in Washington, and gave a substantial sum to a Methodist church and a like sum to the hospital where she had been treated, and the remainder she gave to her friend, Mr. Corneille. And why not? Her brother and sister had been engaged in litigation with her over the estates of both her father and her mother; there had been an estrangement of long standing, and she had within a short time entered into a contract with them for the settlement of the controversy and of all outstanding claims, evidently contemplating a closing of all matters between them. They had treated her at arm’s length; the settlement was made through the agency of attorneys on both sides, and the transaction, of course, proceeded upon the basis of the capacity of Miss Morison to enter into contracts. The settlement had in it none of the elements of a reconciliation; it was purely and simply to be rid of the annoyance and expense of the litigation, the parties dealing as strangers and as equals, by their respective attorneys. Was there any reason why, having fixed her legal rights by means of a compromise contract, she should, in contemplation of death, turn it over to these troublesome relatives? What would an entirely normal person have done under these circumstances?
*144Was the disposition of her property that of a lunatic, or was it what we might fairly expect of the woman who had kept together a property approximately $15,000, and who had transacted all of her own business down to the very time of her death without a suggestion, so far as appears, that she was not entirely competent to do so until after her death? There is not a suggestion in the evidence that the attorney who drew the will was not a high-toned and honorable counselor of this court. He testifies to the matters which he was directed to put into the will, and that he had never known her until she came to his office. There is no suggestion that Mr. Corneille was known to the attorney, or that he in any way induced Miss Morison to go to this particular attorney; the proponent was brought into the matter, so far as appears, entirely at the suggestion of Miss Morison, and to say that this intelligent will could have been suggested to the mind of a lunatic in December, or at any time between December and the hour of its transcribing, and be conveyed by her to the attorney who drew it, is to disturb all of our preconceived ideas of a lunatic, and we doubt if any jury, under correct instructions, could be found who would reach such a conclusion. It is unreasonable. Such a thing could not, in the nature of things, be accomplished.
There is some evidence in the case that Mr. Corneille had informed the'Methodist Hospital, at some time, that he had a friend who desired to make a gift to it, or that she was likely to do so, but there is no evidence whatever that he ever importuned her in reference to such a gift, and there is no evidence whatever that he ever made any request that she should make him a beneficiary, though there is no legal reason why he might not have done so within the limitation that such request should not be persisted in to the extent of dominating and controlling the will of the testatrix. There is no law which forbids a friend to present his claims for preferment in the final disposition of the estate; certainly no law which forbids a friend performing kindly offices and accepting the bounty of his friend, and the effort to degrade friendship to the necessity of justifying itself in the presence of a bequest, is a perversion of the statutory privilege and ought not to be encouraged by the courts.
*145The evidence in this case should be considered in the light of the erroneous charge, and it does not seem necessary to review the whole of it. It is sufficient to call attention to some of the alleged facts, as they are called to our attention by counsel, and to show the coloring which is attempted to be given them, to demonstrate the utter lack of merit in this case. For instance, we are told that Miss Morison never married; that when a young woman she was disappointed in love, and she always had this on her mind. We are referred to folios 738, 861, 957, etc., for particulars. At folio 738 there is a little sentimental story of an unremoved stain on the table-cloth which had never been taken out because it was left there by Mr. Gardner, her best friend. Of course this impressed Priscilla fluff as irrational. Then at folio 861 we find John H. Smith telling a story of Miss Morison appearing one day in mourning; of his inquiring the reason, and of Miss Morison saying that her intended was dead, and this impressed John Smith as irrational. At folio 957 Katie Lapolt tells of a visit to a cemetery by Miss Morison and of her telling her that an unmarked grave was that of Mr. Gardner, an old friend of hers, and that Miss Morison was not at all excited on this occasion, and Katie thought her conduct very irrational. Of course there is no evidence that this grave was not that of Mr. Gardner, an old friend, and there would not appear to be any particular reason why Miss Morison should have been excited over a grave in a rural cemetery, years after the disappointment, though I believe it is no uncommon thing for sentimental women, disappointed in love, to linger a moment by the side of an unmarked grave. But does the memory of an old romance, cherished through the years, indicate insanity? If it does then many of us would need an insurance upon our testamentary dispositions.
Then we are told that as a young girl she was struck by lightning and rendered unconscious, and was after that nervous in thunder storms. That this, together with her disappointment in love, affected her mind, and as she advanced in years her mental condition became more noticeable, although she was always peculiar and the neighbors all thought she was crazy. We are referred to folio 397 for authority, and there *146we find that John H. Pritchard, a Presbyterian clergyman, whose church and himself were ignored in the distribution of Miss Morison’s estate, testifies, not as to the thought of the neighbors, but as to his own observations of Miss Morison. He simply says that “ I noticed that she became less attentive apparently to her appearance, about her appearance, and while for a while immediately after the death of her parents she was more careful she very rapidly became less careful toward the end.” We are likewise told that “ she accused' her brother of drunkenness when he was not a drunkard,” and we are referred to folio 970, where Minnie Walzer testifies that “ She was always at her mother, that her brother was a drunkard, and that he only came to get things from her,” and that she (the witness) never kneyz from any one else that he was a drunkard, which is a long way from establishing that Miss Morison was not justified in telling her mother that her brother was a drunkard. Minnie does not even say that she did not know that the brother was a drunkard; she merely says that she did not know it from any one else.
With this foundation, we are told that “ this weak-minded delusion concerning her brother and sister, the Rev. Mr. Edwin Corneille, a Methodist minister, pastor of the Methodist Episcopal Church at North White Lake, N. Y., for a number of years, together with his family, used to convince Sophia that she had reason, indeed, to fear from the presence of her brother and sister,” and folios 1593 and 452 are cited. At folio 1593 we find these words in a letter from Mrs. Corneille to Miss Morison: “ How provoked I feel with Mrs. Fraser [the sister] for coming to bother you, you poor girl you surely have more than your share of trouble. I am glad you did not let her come to take care of you, (I didn’t ever suppose you would.)” Of course, in this fragment of a letter from Mrs. Corneille there must be hidden a deep plot for the serving of the purposes of Mr. Corneille. Then at folio 452 we find this damning revelation as to the conduct of Mr. Corneille himself, by one Charles E. McKay: “ I recall the day after her father died the dominie come there.” Asked “ Dominie who ? ” the witness continued: “Corneille I guess they call him,” and then after identifying the “ dominie ” the witness makes his revelation: “ Miss Morison had said that . *147she had sent down after Harry and Mrs. Fraser, and he told her that was a foolish thing to do, that they would only make trouble,” and soon afterward they did enter into a litigation-over the estate of the father whose death was the occasion of the interview narrated.
So I might go bn through the record, showing the trivial and inconsequential matters that engaged the attention of the jury and the court, and which affords the basis of this decree, but I have already devoted too much space to the consideration of this alleged evidence. The most that can be said to be established is that the testatrix was a woman of romantic tendencies who had become somewhat soured and suspicious ’of her fellow-men,, but who had at no time failed in the comprehension of her business affairs. She had a full and complete comprehension of her property; understood who were her heirs and next of kin, and these she provided for to the extent of her desires in that direction, and she made a will in all respects in harmony with the life she led and the experiences she had passed through with her brother and sister. This will was executed with due regard to the forms of law, and there, is no evidence in this case which would warrant an unprejudiced jury in reaching the conclusion that there was any undue influence, or to overcome the presumption of sanity on the part of the testatrix at the time of making this will. The verdict of the jury is inconsistent, is against the evidence and the weight of the evidence, contrary to law, and should not be allowed to stand. (Matter of Fleischmann, 176 App. Div. 785; Matter of Ruef, 180 id. 207.)
The decree should be reversed on the law and facts and the matter remitted to the Surrogate’s Court to enter a decree in harmony with this opinion, with costs to the appellant.
All concurred, except Lyon, J., dissenting, with an opinion, in which Cochrane, J., conctirred.