The paper probated is dated April 17, 1919, and was found in the possession of the testator when he died the 3d or 4th day of September, 1920. The will was executed in compliance with the statute; the witnesses were business men, one of whom had had considerable experience in the execution of wills. The probate of the will is attacked in this court on the grounds, first, that the testator had not testamentary capacity at the time the will was made; second, that the will and its execution were procured by undue influence.
The testator had no relatives, but his wife, who predeceased him, had a son, Col. William H. Corbusier, by a former marriage. Col. Corbusier had a son, William T., whose wife’s name was Mabel. It seems that Col. Corbusier, for a considerable time before the death of the testator, had seen little of him. William T. Corbusier and his wife Mabel had lived *433with the testator and cared for his home, beginning in 1918. About Christmas time, 1918, William T. Corbusier left and in March, 1919, Mabel Corbusier left. The testator had made a number of wills prior to the will admitted to probate. The last preceding will was dated February 10, 1919, while the Corbusiers were still with him. In that will, as in the will probated, he gave to his friend Charles Sylvester $500 and his pool and billiard tables and equipment. He gave to Johnson Beers $1,000, to Mabel Corbusier the sum of $1,000, and to William T. Corbusier his house and lot in Elmira, including its furniture, together with three notes, which he held against William T. Corbusier, aggregating $700; he authorized his executor to dispose of the rest of his real and personal property and distribute it among his legatees. Soon after the Corbusiers left him in March, 1919, he made the will in question, giving his house and lot and the furnishings to James C. Ranch and reciting that the bequest was in consideration of “ his care and maintenance of me during balance of my life time.” Evidently Mr. Ranch did not enter upon the performance of this agreement and under date of March 19, 1920, a written agreement was executed between the testator, Henry B. Jones, and Martha Bowes, providing for a transfer of the said house and lot by Mr. Jones to Mrs. Bowes; she agreeing to remain with him during the balance of his lifetime, act as nurse and care for him; the transfer of the property being received by Mrs. Bowes in full consideration for such services rendered under this agreement. On September 8, 1906, testator’s wife, Mahala Jones, had deeded to him, in expressed consideration of one dollar, the house in Elmira in which they lived, title of which the testator held until March 16, 1920, when he deeded it to Martha Bowes in pursuance of this written agreement with her. She had worked for him two or three days a week while the Corbusiers lived with him.
This will of April, 1919, is under the circumstances natural and reasonable; in it he made those changes from his will of February, one would expect; he omitted the provisions in favor of Mabel and William T. Corbusier, who had changed their plans and had disappointed him; he had expected them to remain and care for him, but they left him to be cared for *434by others. Under the 7th clause of his February will Mabel and William T. Corbusier were given a share of the residue,they being legatees. He may not have wished James C. Ranch to have a share in the residue. If so a clause similar to the 7th clause in the February will could not be inserted in the April will. He knew the contents of the February will; he had Mr. Disney examine it, talked its provisions over with him and later had a better recollection of its contents than- did Mr. Disney. It cannot with any certainty be said that Beers has any greater interest under this April will than under the February will; he gets nothing personally under the residuary clause. The deed of the home place to Mrs. Bowes was a reasonable act in view of the facts.
This appellant has no interest under either will and can have no interest in the estate until all former wills have been set aside. If this will be rejected the court will distribute, testator’s property for him and transfer it to those he had good reason to exclude from participation.
There is some conflict in the evidence as to the physical and mental condition of the testator at the time the will was made. He was about ninety-three years of age at the time of his death. He was somewhat forgetful; his eyesight was poor; for a short time.before his death he could read only the headlines of the newspapers, and for a considerable time he had read with the aid of a strong magnifying glass only. There is evidence that he was somewhat careless in his personal habits at the table and about the house and out of the house. He had been out of bis house very little for about two months prior to his death. He died in the night unattended. He had for years owned and conducted a pool room in the city of Elmira. Prior to the time he made his will and for months thereafter he went to his pool room practically every day, where he met his friends. Among his friends were Charles Sylvester, Johnson Beers and James C. Ranck.
Two physicians have testified, in answer to hypothetical questions, that, at the time he made his will, he was not mentally competent. The witnesses called by the proponent, especially Mrs. Bowes, gave a description of him, showing that he was entirely competent; and a history of his transactions, all his relations with William T. Corbusier and his *435wife Mabel, an examination of his former wills and all the surrounding circumstances, furnish evidence which justified the surrogate in reaching the conclusion that he was competent to make a will and was not unduly influenced. The surrogate saw the witnesses and is better able to judge of the weight that should be given to their testimony than is a court reviewing the evidence upon a printed record.
It was suggested in court that the confidential relation which seemed to exist between the testator and Johnson Beers should be considered. It is true that, when confidential relations are shown to exist, and it is shown that the testator is the weaker party, and the will has been made in favor of the dominant party, this is sufficient evidence to justify the inference or presumption that undue influence has been exercised; but such presumption is a presumption of fact only. It is said in Matter of Kindberg (207 N. Y. 220), on page 228: “ The rule that a transaction between an attorney and client conferring a benefit or advantage on the former is presumptively invalid, and the burden of relieving himself from that presumption rests on the attorney, is confined to transactions or gifts inter vivos and does not apply in all strictness to a gift by will.” The presumption or inference which has thus arisen will prevail unless other evidence in the case fairly overcomes it. It has been held that evidence other than the mere factum of the will must be presented to overcome the evidence on which the inference is based. But, where other evidence does exist, tending to show the untrammeled working of the testator’s mind, that his will is in harmony with his personal wishes, where the will is not unjust to the natural objects of his bounty, or where none exist, and where the bequest is the natural result of regard or favor and not of overbearing influence, which brought into subjection the will and desire of the testator, we have but a question of fact, considering the presumption or inference and the other proof together; and the question remains for the court to determine upon this proof whether undue influence has been exercised. The burden of proof upon this question is not shifted upon the proponent because there is evidence from which undue influence may be inferred. A misconception which has sometimes been entertained as to this rule was pointedly explained *436in Matter of Kindberg (207 N. Y. 220, 228, 229) in connection with an error in the charge in thal case, and with an expression on the subject in the Smith Case (95 N. Y. 516). The rule is a rule of evidence, as is the rule of res ipsa loquitur. There is no statute or law which forbids the making of a will in which a substantial bequest is given to a confidential friend. “ If fairly made the law does not condemn it. One possessed of property may do with it as he pleases, and may himself select the objects of his bounty.” (Marx v. McGlynn, 88 N. Y. 357, 370, 371, 372.) We think the proof is very meagre of any such confidential relation between deceased and Beers, or of any domination of the latter over the former, such as would raise a presumption of unfair dealing or influence upon deceased in the making of his will. Also we should remember that Mr. Beers is not the only legatee who has a substantial interest under this will.
The law governing the making and execution of wills is not so strict, nor is it intended to be, as to deprive a person of average ordinary understanding of the privilege of making such disposition of his property at death as he may desire. Neither age, nor physical infirmities, disqualify one for making a will. Men may be uncleanly and eccentric and feeble of body and still have testamentary capacity. The inclination of gratitude and friendship toward a confidential friend may be stronger than the feeling for those of the family blood, who are indirectly connected, or were remembered in a former will.
A careful examination of the evidence in this case justifies the conclusion that the will was properly admitted to probate, and that the grounds of contest have none of them been sustained.
The decree and order appealed from should be affirmed, with costs.
Cochrane, J., concurs.
Decree and order reversed upon the law and the facts and the matter remitted to the surrogate for his further action, with costs to the appellant to abide the event. The court disapproves of the finding of fact that the testator was under no restraint when he executed the will and that the paper propounded is the last will and testament of the testator.