I am inclined to think that the requisite formalities to sustain the execution of the paper propounded as the will of the deceased, were sufficiently proved. Frazee, one of the subscribing witnesses, swears positively that they were adopted. Morris, the other subscribing witness, does not recollect hearing the testator declare that the paper to which he had made his mark was his last will and testament, or request any one to sign his name as a witness. But the non-recollection of this witness cannot overthrow, or balance, the affirmative and positive evidence of one who seems to have been more attentive, and to have a better memory. The statements of Frazee should undoubtedly be received with some hesitation, as he is a clerk of the principal beneficiary named in the will, and a son of one of the executors. These circumstances, however, are not sufficiently strong to destroy, or seriously impair, the credibility of the witness. In this case, too, the testimony is supported by the considerations that the person the most interested was present and an active participator in the transaction, and that he was a lawyer, and no doubt well acquainted with the provisions of the statute relative to the execution of wills, and could of course effectuate a full compliance with them.
*256There can he no doubt that the mind of the testator had been seriously weakened by his disease. That, according to the testimony of his attending physician, was an affection of the brain, and it eventually, and probably before the execution of the will, induced a softening of the brain. Doctor Bennett testified that six days before the date of the will he found the testator very much reduced, heavy, partially comatose, and in profuse perspiration. That “ although he rallied partially, from time to time, still this condition prevailed mostly all the way through the rest of his life, excepting an interchange of condition, in which he would give answers to questions with a foolish, shallow laugh, which was more remarkable because it contrasted strongly with his natural sober, dignified, austere manner, which he had when in health.” Another witness (Mr. Thompson) testified that he visited the testator nine and ten days before the date of the will; that he found him on both days in a state unfit for conversation ; that he was in bed swooning or sleeping, drowsy and heavy. Mr. Hardenbergh, who resided in the rear of the house occupied by the testator, and was his tenant, testified that he saw the deceased frequently, and was with him two days before the date of the will, for about an hour; that he tried to have some conversation with the testator, but “ could not understand what he would say,” although he made an effort to converse with the witness. ISTo .direct evidence was introduced by the appellant to prove the sanity of the testator. His counsel, however, in an elaborate and ingenious written argument, infers such sanity from the statements of the witnesses introduced in opposition to the will; that the testator shortly before the execution of the will, and about the time when the transactions mentioned by them to prove his imbecility of intellect, occurred, requested that a particular chapter in the bible should be read, and himself repeated a psalm containing sentiments certainly very appropriate for one in his situation, and that at times he appeared to be engaged in prayer. These circumstances would seem to indicate a retention of intellect at least to some extent, although I have heard clergymen of great experience say, that they had never known an insane man, who had been a devout Christian, that did not *257retain and express a lively recollection of his religion. The counsel also relies upon the request made by the testator, when the will was read to him shortly before its- execution, that the reader who had commenced with that part containing the bequests and devises, should read from the beginning of that document. This certainly evinced consciousness in what was going on, and showed that the testator had and exercised, at the time, some power of perception. I should be unwilling to say, upon the testimony before the surrogate, that the testator had wholly lost his mind. If the case turned upon that question, I should feel inclined to send it to a jury. The cases certainly establish the rule that feebleness of intellect, however considerable, in the testator, shall not invalidate a will. By our laws, all persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate; and all persons of the requisite age, of sound mind and memory, and no others, may give and bequeath their personal estate, by will. That a person who from natural or acquired defects, possesses an intellect but the next degree above positive idiocy or lunacy, so low indeed that he can neither converse nor act with discretion, should be deemed of sound mind and memory, is at least singular, if not contradictory. I doubt much whether the principle has not been extended further than good policy requires. In the reported cases where wills have been avoided for imbecility of mind in the testator, I recollect many instances of gross injustice and hardship, but not one where a wise or appropriate decision had been made. It is true that wise men sometimes make foolish wills, but such cases are exceptions to, rather than according to, the general rule. The reason for sustaining the wills of excessively weak persons (and by those I mean persons of the lowest degree of mental capacity, where there is a glimmer rather than light,) is that the weak have the same rights with the prudent or strong minded to dispose of their property, and that if imbecility and not a total absence, or rather perversion, of mind should constitute inability to act, it would be impossible to draw any clear line of distinction, or one which should generally prevail. There is certainly much force in these reasons. At any *258rate the rule has been thoroughly established and we must submit to it, whatever may be our opinion as to its necessity, propriety or expediency.
The only other question is, whether the will in question did not result from undue influence exerted upon the testator by the principal proposed donee. It appears from the evidence that the deceased had been, previous to his. illness, a man of sound discretion and prudence, and great firmness. In these particulars his sickness created a marked change. Doctor Bennett says that he then “ assented to propositions made“ that he would assent at once, without reflection, and seemingly could be persuaded to almost any thingthat “ he seemed to have lost his ordinary force and character.” There are circumstances to which I shall presently allude, which confirm the doctor’s opinion as to the facility with which the testator, during his illness, yielded or assented to the suggestions of others.
The deceased does not appear to have been much attached to his wife or sister. But still it appears to have been his intention, while in health, and strong minded, to make them the principal recipients of his bounty. Two instances testify to his favorable intentions as to his wife; one in reference to his sister. He also stated his wish to give something to the Colored Home Society. But there is no evidence to show that he intended before his sickness, or during his. illness, except from the will itself, to make any donation to the appellant or to his c.o-exeputor William J. Howard, to vrhom considerable legacies are given in the will.
The appellant and the testator stood in the confidential relation of counsel and client. That alone calls for great circumspection. (Gibson v. Jeyes, 6 Vesey, 266.) The influence which the appellant" had over his client appears to have been very great, and extended beyond professional matters. Thus the appellant induced the testator to resort to a strong stimulant, contrary to the advice of his family physician. The testator permitted the appellant to draw his. will, and told the appellant’s clerk that he would have been satisfied without hearing it read. There could not well have been stronger instances of confidence *259than these; one relating to a remedy for dangerous bodily infirmities, and the other to the disposition of the testator’s entire estate.
The appellant drew the will. There is nothing to show that it was in accordance with previous directions, or that any directions were given. It is true that it was read to the testator, and that he must have assented to it. His assent does not however prove that it was his will, as the evidence shows that he readily assented to whatever was proposed to him. This peculiarity, coupled with the entire absence of any proof that the testator had previously designed to give any thing to thé appellant, or that he had given him any instructions to draw the will, lead strongly to the inference that it was the will of the appellant and not of the testator. I concede that the mere fact that the mind of a testator has been influenced by the arguments or persuasions of the person principally benefited, however indecorous, indelicate or improper they may be, will not ordinarily, in the absence of fraud, vitiate a will. But then it must be the will of the testator, however induced. If it be the will of another, to which the testator assented from mere habit, and that habit produced, as in this case, by prostration of both body and mind, it cannot in any sense of the word be considered as his will, and ought not to be sustained. The will of John Fisher was set aside by the court of appeals for no other cause. (Clarke v. Sawyer, 2 Comst. 498.)
In this case the appellant not only drew the will but he sent his clerk to read it to the testator; he was himself present when it was signed, held the will, and gave the pen to the testator to make his mark; he asked the testator if it was his will, and whether he requested the witnesses to sign their names as such, and told the testator to repeat the words ; and he did so; This last circumstance, according to Swinburne, is strongly against the presumption that it is the will of the supposed téstator. (1 Swin. on Wills, 189.) There is nothing to show the propriety of this extraordinary agency; nor why the testator should prefer giving the bulk of his property to one of another race, rather than to the wife of his bosom and his near blood relative; *260except his readiness to yield to the suggestions of others. It would he monstrous to sustain a will made' under such circumstances.
[Kings General Term, October 3, 1853.Barculo, Brown and S. B. Strong, Justices.]
The decree of the surrogate should he affirmed, with costs. ■