(dissenting.) The will was dated and executed on the 10th day of February, 1883. The testator died on the 3d day of May of that year, aged 43 years, leaving a wife, Lilly W. Hamersley, now the Duchess of Marlborough, but no children or other descendants, and no father or mother. His father died but a few weeks before bis own death. The only next of kin of the testator on his father’s side was his uncle, John W. Hamersley, a brother of the testator’s father. Upon his mother’s side the testator had a number of next •of kin, brothers and sisters of his mother, or their descendants. Some, but not *484all, of these contest the prohate of the will. The testator was the only child of Andrew Gordon Hamersley. He was married in November, 1879, and was, before that time and afterwards, a gentleman of leisure, and of large fortune, though the bulk of his estate at the time of his death had been but recently derived from his father. By the will the testator substantially gave the whole income of his property to his wife for life. After her death he willed all of it to his own issue, if any, and in default of such issue to the male issue of his cousin, J. Hooker Hamersley, a bachelor, and in default of such issue to such charitable societies of New York as his wife, by her will or other instrument in writing, might designate and appoint. Testimony was sought to be given by the appellants that the testator had made declarations after the date of the will to the effect that his wife had made efforts to influence and obtain from him a will in her favor. The effort appears in different parts of the case, but more conspicuously when the witness Oortlandt DePeyster Pield was on the stand. The following questions were asked of this witness: “Question. Did you ever have any conversation with Louis Hainersley about another will,—about an effort being made to induce him to make a certain will, by any person? (Objected to. Objection sustained.) Q. Did Louis Hamersley ever say anything to you about efforts being made by his wife to obtain from him a will? (Objected tó as hearsay.) The Surrogate. It is not a declaration of testamentary purpose, and I do not think you can prove undue influence by the decedent himself. (Exception.) Q. Did he say anything to you upon the subject of whether or not his wife had asked him to make a will in her favor? (Objected to. Objection sustained. Exception.”) The ruling of the surrogate does not seem to be in accord with the decisions of this court. In Re Clark, 40 Hun, 237, the court say: “The proponents also took exception to the admission of declarations made by the testator in November following the time of making the will. These declarations had relation to the terms of the will he had made, and the one he first undertook to make, and, in respect to this, added that bis wife objected to it, and he had to make another. This evidence was clearly incompetent to prove the contents of the will in question, or those of that he first had the purpose to make, or to show that the one made was" caused or produced by duress. The validity of the will cannot be affected or impeached by his declarations. They ■were no part of the res gestw, and therefore were not any or competent evidence of the facts stated by them. * * * But the question on trial was whether the will was the result of undue influence, which involved the consideration of the mental condition of the testator at the time he made it. Although he was then of sound, disposing mind and memory, his susceptibility to the influence and control of others depended somewhat upon the vigor and character of his mind and will power. He was in feeble health at and from the time the will was made until his death; notwithstanding he improved in that respect, and was out some in the mean time. His declarations were only competent as bearing upon the state and condition of his mind at the time of the testamentary act. The declarations were made about two months after-wards, and were not separated from the act by such length of time, nor were there such intermediate changes of condition, as to enable the court to hold, as matter of law, that it was not competent to prove them with a view to the inquiry as to his mental vigor and condition at the time the will was executed, as bearing, on the question of undue influence.” So, also, in 99 Mass. 112, m the case of Shailer v. Bumstead, it was held that on the trial of issues, whether the execution of the will was procured by fraud or undue influence, and whether the will was executed by the testatrix in ignorance of its contents, evidence of the subsequent acts and declarations was admissible to •prove the subsequent existence of the condition of her mind, if they occurred so soon after the execution of the will as to afford a reasonable inference that such was then the condition of her mind, though such evidence was held in*485admissible to prove the actual fact of fraud or of undue influence in the matter.
The exceptions to the rulings of the surrogate would, under these authorities, lead necessarily to a new- trial to be had before a jury, if, under the language of section 2545 of the Code of Civil Procedure,-“it appears to the appellate court that the exceptant was necessarily prejudiced thereby;” otherwise not. The important question, therefore, is, were the appellants prejudiced by the rulings of the surrogate, which excluded evidence of the declarations of the testator relating not to the existence of the fact of undue influence or of fraud, but rather to the condition of the mind,as a necessary element in the consideration of the question, whether the acts done by the wife and her friends were calculated to operate unduly and improperly upon the will of the testator. The main contention by the appellants is that the alleged will was obtained by undue influence practiced upon the testator by his wife, and others acting in her interest; that though in a technical sense the deceased had testamentary capacity, yet he was of such a weak mind as to be easily operated upon by an influence against his own desires. Perhaps the most important fact, and the one which pervades the whole case, is that six weeks before the making of this will the testator endeavored to make another will, and wrote out, in his own hand, a full expression of his testamentary desires, wholly inconsistent with the terms of the will in question, and instructed counsel to draft a will in accordance therewith.
The testimony of Charles E. Strong, the attorney to whom the testator went for such purpose, is very full and instructive, and without it a clear perception of the case cannot, in my judgment, be had. Starting, therefore, at the fact that the deceased had, as is shown, an entirely different testamentary purpose in his mind as to the disposition of his property six weeks before the making of this will, it is of vital importance to inquire why there occurred a change of purpose in the making of another will which has no resemblance whatever to the one that was prepared, substantially, by his own hand. The will was brought to Mr. Hamersiey’s house on the evening of its execution, February 10, 1883, by Jacob K. Lockman, who had it already prepared for signature. The only persons present besides the testator were liis wife, Mr. Lockman, and two of Mr. Lockman’s clerks, Bishop and Sylvester. At the same time the deceased executed his promissory note in the sum of $10,500, by which he promised to pay G. G. Williams, president, that'sum of money, and also gave to Williams and to Lockman a power of attorney. Hamersley never spoke or wrote to Lockman afterwards in regard to the will. Not only was the testator’s legal advisor ignored in this matter, but the customary family physician had been discarded. Was this sudden and almost unaccountable change of testamentary desires brought about naturally, and as a voluntary act of the deceased, or was it done by the overlaying upon him of a stronger will than his own, smothering his real intentions? Was the exercise of such illegal influence made possible by the fact that, the testator had become seriously weakened in body by long and painful maladies w-hicli had materially impaired the resisting power of his will? These are vital questions in this case, and the tribunal passing upon them should have the benelit of all the testimony which the rules of evidence afford.
On the 19th day of December, 1882, the testator was attacked with acute bronchitis, at Troy, which attack lasted live days. It is shown that he never fully recovered from that ailment until after lie went south, in the month of February, 1883. His father died of pneumonia, the 24th day of January, 1883, at the residence occupied by the son, after an illness of 10 or 12 days. At that time the testator was himself ill with pleura-pneumonia, in another room in the house, and was not able to attend his father’s funeral. The death of his father had made a deep impression upon the mind of the son. They were shown to have been unusually intimate and regardful of each *486other. In the month of February the testator went south, accompanied by a nurse, as well as by his wife. On his return in April he was taken ill at Washington, D. C., and finally took to his bed April 27, 1883, from which he never arose. It appears to have been the purpose of the testator, as late as at the time of his going to the south, to give a considerable portion of his-property to charity, and to that end he had consulted his confidential physician, Dr. Gillette. Indeed, he seems to have wholly ignored the will in question, if he ever had conscious knowledge of it, because it does not appear that he ever referred to the will after it was carried away by the attorney. The evidence shows the will was not read over to the deceased, but that, after it was prepared, he took it in his hand, and looked at it for three or four minutes. Whether he thereby familiarized himself with its terms so that he clearly understood the disposition which he was making of his vast estate, is-a fair subject of contention. After giving his wife the income of the whole estate during her life, he devises and bequeaths the property to the male issue of his cousin, J. Hooker Hamersley, who was then living, without issue, and unmarried; but in the event that the cousin should die without issue surviving him or surviving the testator’s wife, then he gives, devises, and bequeaths “the whole of my said estate, real and personal, to such charitable and benevolent corporations located in the state of Hew York, and incorporated by virtue of the laws thereof, and in such shares and proportions, as my dear wife shall, by her last will and testament or instrument in writing for that purpose made and executed and acknowledged by her, direct, designate, and appoint for that purpose; and I hereby fully authorize and empower my dear wife to make such last will and testament or instrument in writing and the direction, designation, and appointment as aforesaid.’’ Unless the testator had been advised that by such provision of his will, in the event of the failure of issue of J. Hooker Hamersley, his wife took absolutely all the property, with the right to dispose of it as she saw fit, of which there seems to be no proof whatever, then the counsel for the appellants may be excused for characterizing the will as containing “juggling provisions, ” which were not clearly apprehended by the testator. A significant fact is shown, that the testator requested Mr. Strong, wdien he should have prepared his will, in the month of December, 1882, under the testator’s holographic instructions, to apprise him by letter, not that such will was ready for execution, but that he, the lawyer, desired to see him, the testator, upon some real estate matters. Such are some of the salient facts in the case, which made it of vital importance, upon the trial, to ascertain as far as human testimony and observation could do so, not only the testamentary intentions of the deceased, but also the condition of his mind, so that it could be satisfactorily determined whether the violent change in his testamentary purposes was due to his own voluntary act, or whether it was the result of undue influence or advantage which the persons who immediately surrounded him availed themselves of. If this be correct, then it was not only technical error to exclude the testimony already adverted to, but the appellants were necessarily prejudiced thereby.
But it is claimed by the learned counsel for the respondents that, though such evidence is competent to show the state of mind of the testator, yet it is inadmissible until the fact of the exercise of undue influence or fraud has been established by other evidence. I do not understand such to be the rule. If fraud and undue influence may be shown by circumstances, as has been attempted to be done in this case, and such circumstances do not appear to be frivolous upon the subject of the exercise of undue influence, then the declarations of the testator, designed only to show the condition or state of his mind, may be admissible. But the attending facts, some of which are adverted to above, are not frivolous. On the contrary, while, as is usual in such cases, they do not point conclusively to the exercise of undue influence, or the perpetration of fraud, upon the testator, a deduction of undue influence *487may or may not be made from them, according to the weight and importance which may be given them. It is further argued by the same counsel, that there appears to have been no motive on the part of the wife to have this will executed, as she would probably get more property in case of the intestacy of her husband than she is likely to receive under the provisions of this will. What was pressing upon the parties at that time was not the question of a will or no will, but rather should it be this particular will, instead of the testator’s holographic instructions to his counsel. It may be needful again to recur to the terms of this probated paper. By it the wife has a life enjoyment of the whole of the income of the estate, in any event. Then, after her death, there is a bequest of the remainder over to the children of the testator, if there should be any. Yet, as was clearly enough known at that time, the birth of a child to them was regarded as a physical impossibility by every person, except possibly the enfeebled testator. It being a common and natural provision in most cases, it was, in this particular instance, well calculated to disarm a mind already weakened by acute physical disease. The proponent’s witnesses say .that the sick man took the paper, and looked at it for three or four min utes. Yo one knows whether he read it or not. It certainly was not read to him. Did he try to grasp the hope that was held out to him, springing from the natural desire for lineal survivorship? But every one except himself knew the suggestion to be illusory. As if, however, the parties distrusted the potency of this suggestion, still plying him with the purpose to keep, the estate in the family, the will declares that in the absence of lineal descendants of the testator, the remainder of the estate, after the life of the wife, should go to the male issue of J. Hooker Hamersley, a cousin and a bachelor, who at that time had no prospects of marriage. As in the provisions for the testator’s descendants there was an apparent physical impossibility of realization; so in the bequest of the remainder to the male children of J. Hooker Hamersley there was a moral impossibility of fulfillment; yet it was doubtless sufficient to awaken in the testator the hope of keeping the property in the Hamersley family name, however delusive such hopes seemed to all others. The final disposition of the testator’s property, however, (direct and indirect family inheritance failing,) was still more extraordinary and illusory. With no children of his own or of his bachelor cousin succeeding, the estate was given to such charities existing in the state of Yew York, under corporate organization, as his wife should select. Was the perpetration of this provision of the will upon an enfeebled man, on the face of it, an imposition and a fraud? The testator doubtless thought, if he thought at all, that this clause secured his estate to charity in the event of failure of issue of himself and of his cousin. The thought was delusive; and this ultimate bequest was evidently thnfst upon him in view of the established fact that his deliberate purpose had been and was to devote his property mainly to charitable and benevolent purposes. There is no provision requiring his wife to designate the charities. She took the whole of the estate, and whether any charity should be benefited thereafter was a matter resting entirely with herself. In plain view, therefore, of this deceptive clause of the will, the contention that the wife had no motive in procuring its provisions, seems untenable. With the impossibility of direct issue, with the improbability of issue of the bachelor cousin, with the legal certainty that no charity could claim the estate, the wife, by this will, held all of the possessions of her husband in her hand. Whether or not this scheme was one which was thrust upon the testator without conscious appreciation by him of its effect, or was intentionally and knowingly adopted by him in place of his prior established intentions, manifested by consistent acts, is a question which, under all the circumstances, ought to be settled by the verdict of a jury. The decree of the surrogate should be reversed, with costs to the appellants, to abide the event, and a trial of the case had in court with a jury, as the statute provides.