This case is presented upon an appeal from the sentence and decree of the surrogate of Ulster county, refusing to admit to probate an instrument propounded by the appellant as the last will and testament of Peter Ban, deceased. The parties are all children of .the deceased. The testator died on the 17th day of December, 1863, being at that time about eighty-two years of age. The wife of the deceased died on the 5th day of March, 1859,. *231and shortly afterwards, his son Abraham, who had previously resided on a small piece of land which belonged to his father, came and lived with him, and remained there up to the time of his father’s death. After the decease of Peter Ban’s wife, and on the 27th day of December, 1859, he made and executed the instrument in question, by which he disposed of the bulk of his property to the appellant. Although the instruments were not produced, there was evidence to show that the deceased had made a will, and two codicils, prior to the will propounded for probate, and that in these, as well as in the will in question, most of the real estate of the deceased, which comprised a considerable portion of his property, was devised to his son Abraham. Prior to his death, Peter Ban had conveyed for the benefit of three of his four daughters, three parcels of wood land, and in his will he devised to them only a very small share pf his estate; far less in proportion than that given to his son Abraham.
The admission of the will to probate was resisted by the respondents upon the ground that the testator had not sufficient mind and understanding to qualify him to make a legal disposition of his property; and also because the will was procured by the undue influence exercised by the proponent Abraham Ban over the testator,
The principal question litigated between the ^parties was the question of capacity, and to that inquiry the testimony was mainly directed. And, as is not unusuál in such cases, it involved the history; actions and conduct of the deceased for a long time; and for many years before his death.
Before entering upon an examination of the facts hearing upon the question to be considered, it may be well to advert to the rule of law which should govern and control in determining the capacity of a testator.-
The case of Delafield v. Parish, (25 N. Y. Rep. 9,) is the last reported case where the rule of law applicable to cases like the present one has been fully discussed. Although some difference of opinion exists as to the effect of that case *232in reference to the principle laid down in Stewart v. Lispenard, (26 Wend. 255.) yet I think that the propositions concurred in and adopted by a majority of the judges furnish a safe and reliable guide in cases of a similar character. In testing the question of the capacity of the testator to make a testamentary disposition of his estate, it is not essential to extend our inquiry beyond the rules stated in the Cáse cited; but inasmuch as- they may be considered as embracing abstract propositions not at all times easy of application, it may not be inappropriate to observe that in the decision of the case, Dayies, J. in an elaborate and well considered opinion, Condemns the rule adopted in Stewart Vj Lispenard. Six of the eight judges concurred in disapproving of that decision ; and the rule there established, I think, must be considered as qualified by the propositions adopted by a majority of the court in 25 N. Y. Rep. 97. (See 5 N. Y. Sur. Rep. 1 Redf. 204, note.) In conformity with these views, the true question then to be determined is, whether the testator was compos mentis, at the time of the execution of the will in question, as those terms are used in their fixed legal meaning. The legal presumption is that every man is compos mentis; and most usually the burden of proof that he is non compos mentis rests with the party who alleges that condition of mind.
Having referred to the principle of law which should control the determination of a question of the character of the one now presented, it may be well to advert to the leading features of the evidence produced before the surrogate which have a bearing upon the subject.
. There was considerable testimony adduced in opposition to the will, which tended to show not only general unsoundness of mind, but that for sevefál years prior to his death, the deceased manifested conduct Which indicated that he was not, in all respects, in the full possession of his mental faculties.
I do not consider it' essential to discuss at length the *233various transactions and circumstances which Were proved, to establish this condition of mind. While it must be cohceded that there is considerable testimony which tends to prove that the deceased, at the time he executed the Will iU question, was non compás mentis and had, not sufficient capacity to make a valid testamentary disposition of his estate j yet a close and rigid scrutiny discloses the Unquestionable fact that much of it related to conversations and conduct in regard to one particular subject, in reference to which there are strong if not infallible indications that he was laboring Under a great mental delusion, if he Was not entirely demented and insane. Upon that one topic his mind appeared to have been unbalanced and unsettled, and he had become almost, if not entirely, a monomaniac.
The evidence before the surrogate certainly shows a strange and remarkable condition of the mind, which if it did not entirely dethrone the reasoh and understanding of the testator to such an extent as to render him utterly incompetent to make a valid will, at least seriously affected the question of his general soundness and' capacity.
It must not, however, be overlooked, in considering the question as to the sanity of the deceased, that on the part of the proponent several witnesses, although less numerous than those adduced on the other side, testify to the testator’s capacity until within eleven months prior to his decease, and to business transactions with him, which embraced the sale of personal property, the loaning of money and other matters connected, with the management of his own affairs, in which he appeared to comprehend the character of the business in which he was engaged.
The subscribing witnesses also testify with some distinctness as to his capacity. One of them had been acquainted with him for many years, and drew the will in question. He had previously, on two occasions, made some alterations in the testator’s wills. He testifies that before the will now contested was made, the testator had informed him of his desire *234to alter the disposition he had made of his property, in consequence Of the death of his wife, and after several interviews and full consultations, hé prepared the will in question; that it was read to him carefully, then written over again to meet his views, and after that, executed. It also appears to have been executed in accordance with intentions before then entertained.
[Albany General TShm, December 4, 1865.It must be admitted that-the evidence before the surrogate was conflicting upon the question of capacity. Nor is it entirely clear and satisfactory that the execution of the will' was procured by the undue influence of the proponent, with whom the testator resided.
As the case stands, I am inclined, upon the whole, and in view of the surrounding circumstances, to reverse the decision of the surrogate. I am fully conscious of the difficulties attendant upon a review of the decision of another tribunal, when the court has not the- advantage of hearing and seeing the witnesses testify personally, and can only determine the weight to be given to their evidence by the record of the testimony. I should have considerable hesitation in reversing the decision of an inferior tribunal in a close and doubtful case, if the judgment was final and conclusive. As, however, the effect of a reversal in such a case only is, to present the case to another court and to a jury foi* determination, upon such evidence as may be brought before them, we are at liberty to scrutinize the evidence and decision of the surrogate more closely.
The order rejecting the will must be reversed, and a feigned issue must be made up, to try the questions arising upon the application to prove the will. And the issues ma^ be tried upon the m'otion of either party at a circuit court to be held in Ulster county- The costs of this appeal to the appellant must abide the event of that issue, and be paid nut. of the estate if he is finally successful;
Eogeboom, Peclcham and Miller, Justices.]