Martha Shaul died September 1, 1910. Before she died, and on August 24, 1910, she is said to have executed a will. The will was prepared by Orange L. Van Horne, a lawyer of Otsego county and the district attorney of that county. At the time of the alleged execution of the will the decedent and her mother, aged seventy-five years, lived alone. The mother was an invalid; the decedent was in ill health. They called in a married neighbor woman, one Eunice Edick, to assist them with their work and help nurse and care for them. She was paid for this work. The decedent was a maiden lady; she had never married. She had no children and left surviving her only uncles, aunts and cousins. She had not been very intimate or friendly with most of these. Just before she died she and her mother went to the house of Eunice Edick to live. In her will she left all her property to Mrs. Edick. The will is contested by those relatives who would inherit if there were no will. The surrogate has decided in favor of the validity of the will, and an appeal from his decree brings the case into this court.
There are only two questions for our consideration, namely, *419Was there undue influence? Did the decedent possess testamentary capacity? As to the first question there is absolutely no proof in the case of the exercise of undue influence. There was opportunity, and there was a quasi-confidential relation. This is all that can be said; this is not enough. Mrs. Edick was a married woman, a neighbor, a friend. She did as neighbor women frequently do under such circumstances, she took such care of the two invalid women as she could and did the housework. She took pay for her services. Finally, being pressed by her own domestic duties, she took the two old women to her own house and cared for them there till they died. These acts, so far as the proof goes, comprise the head and front of her offending.” No will was ever invalidated for such reasons —no will ever should be.
As to the testamentary capacity the contestant produced quite an array of experts and interested relatives, and some others. From it all, as one reads the testimony, it would seem at times as though the woman were a complete imbecile in the last stages of senile dementia; and then, again, out of the mouths of the same witnesses, perhaps, she would appear to display a cunning and business capacity quite uncommon. But the surrogate saw all these witnesses, he heard them testify, he knows them all. He decided against them and his careful analysis of the facts in his able opinion shows that he was fully warranted in so doing.
Despite the attack upon Mr. Van Horne, I have no doubt that the surrogate was influenced greatly by his testimony. I have been so influenced in the conclusion which I have reached. It would have been better, perhaps, had Mr. Van Horne employed other counsel to conduct this litigation and acted himself only in the capacity of witness; but notwithstanding his indiscretion, if it was indiscreet, in acting both as witness and lawyer, I attach great importance to his testimony. He is not one of those familiar legal characters whose shady reputa*420tion always arouses suspicion. On the other hand, Mr. Van Horne is a young man apparently of high standing in his community; he is a lawyer of excellent reputation; he is the district attorney of his county. He argues cases before us and we have had an opportunity to observe him. He seems to me to be clean and able and straightforward; I think we should hesitate to repudiate him.
Every will case must stand upon its own peculiar circumstances, but in this case I do not think we should strain a point to take this money away from Mrs. Edick, the only person who displayed any human compassion towards the deceased, and give it to unworthy relatives. Courts can have but little respect for the claims of distant relatives who remain wholly unconcerned about the comfort and affairs of their kinsmen while they are alive, but pounce like vultures upon their estates when they are dead. Neither should the law encourage their claims—at least not to the jeopardy of those who merit gratitude and reward at the hands of the deceased.
I recommend that the decree be sustained on the opinion of the surrogate.
Ail concurred, except Kellogg, J., dissenting in opinion, in which Woodward, J., concurred.