(concurring.) This is an appeal from the decree of the surrogate of Kings county, admitting to probate an instrument called a “ Codicil, ” to the last will and testament of Alfred F. Dunham, deceased. The testator made a will in October, 1882, and in September, 1885, he made another will in which, after the bequest of a legacy of $3,000 to Mrs. Mary Holte, he gave the remainder of his property as before given and provided for in his former will, so that both instruments were required to constitute the last will and testament of the testator. The last instrument was contested, but the testimony before the surrogate discloses no reason why it should be rejected. The decree of the surrogate should be affirmed, with costs.
NOTE.
Will&emdash;Undue Influence. Where a party asserts that an instrument was obtained by undue influence, the law excluding all presumption of undue influence over a person of sound mind, he is required to prove affirmatively that it was so obtained. Shepardson v. Potter, (Mich.) 18 N. W. Rep. 575. The burden of proof is on the contestants to establish undue influence; and the fact that the will is unjust or unreasonable is not evidence that such influence was exercised. Webber v. Sullivan, (Iowa,) 12 N. W. Rep. 319. The evidence on the part of the party attacking, on the ground of undue influence, the will of a person, of sound mind, must preponderate over the evidence adduced and the presumptions prevailing on behalf of the proponent of the will. Gay v. Gillilan, (Mo.) 5 S. W. Rep. 7.
As to what is competent evidence of undue influence, and what amounts to undue influence, see Bledsoe v. Bledsoe, (Ky.) 1 S. W. Rep. 10, and note; Thompson v. Hawks, 14 Fed. Rep. 905, and note; Saunder’s Appeal, (Conn.) 6 Atl. Rep. 196, and note; Rockwell’s Appeal, Id. 198; Pemberton v. Pemberton, (N. J.) 7 Atl. Rep. 642; Blume v. Hartman, (Pa.) 8 Atl. Rep. 219; Herster v. Herster, (Pa.) 11 Atl. Rep. 410; Trost v. Dingles, (Pa.) 12 Atl. Rep. 297; Schildnecht v. Rompf’s Ex’x, (Ky.) 4 S. W. Rep. 235; McCulloch v. Campbell, (Ark.) 5 S. W. Rep. 590; Slinger v. Calverly, (Wis.) 37 N. W. Rep. 236.