This is an appeal by the appellants, as executors and legatees named in an instrument purporting to be the last will and testament of Gilbert Palmateer, deceased, from a decree of the surrogate of Ulster county refusing to admit such instrument to probate as the will of said deceased, and directing the payment of costs of said contestants out of the estate of the deceased on the ground that Gilbert Palmateer was unduly influenced in making said *1063will. The surrogate found and decided that the alleged testator was, at the time of making the instrument propounded as his last will, of sound mind, rational, and competent to make a will; so that the only question presented hy this appeal is whether such instrument was made and procured by undue influence. The will was dated June 15, 1889, and the deceased died January 25, 1892, at the age of about 79 years. The deceased had been twice married; his first wife dying about the year 1850, leaving four children, the fruit of such marriage, three of whom survived the testator, and one of whom died before the testator, leaving two sons, both of whom survive him. By his second marriage he had three children, all of whom, with Ms second wife, survived Mm. In his will the testator bequeathed to Ms wife $100, the use of two rooms in Ms house, and of any furniture she may wish for; the same for life, in lieu of dower. To his two unmarried daughters he gave the furniture, the use of wMch was given his wife for life. To two of his daughters by his first marriage and the three daughters by his second marriage he bequeathed $100 each. To his two grandsons, sons of the deceased daughter by his first marriage, he devised two farms, to be divided between them at the majority of the youngest, and also bequeaths $100 each to said grandsons. All of the residue of Ms estate, real and personal, he devises and bequeaths to Ms two unmarried daughters, children of his last wife. The testator, in his lifetime, conveyed by deed, for nominal consideration, real estate valued at about $20,000 to Ms daughters, the larger share of which was conveyed to the children of his second marriage; but one of the farms, valued at about $2,000, was conveyed to a daughter by his first marriage at about the same time he assigned securities valued at about $12,000 to his last wife and her daughters. One of the testator’s daughters by his first wife, with her husband, had had bitter and protracted litigation with the testator, and to that daughter the testator seems not to have made any advances by deed or assignment of securities, nor is she a beneficiary named in his will, and she appears as one of the contestants in the proceedings before the surrogate on the application to prove the same. The surrogate, in the examination of the question of undue influence, allowed a wide range of investigation by the evidence, showing the relations between the testator and his second wife, and her government and treatment of the children of the first wife, who, by the second marriage, were committed to her government and care; and that evidence disclosed in some instances treatment of severity, if not cruelty, exercised by this stepmother of these children by the former marriage. But these daughters were all married, and had left the paternal home many years before the making of this will; and, while such might bear in a very remote degree upon the question of undue influence, it fell far short of establisMng any such control over the mind and will of the testator as to interfere with the testamentary disposition of his property, even if tMs evidence stood unchallenged or undisputed. But the proponents introduced evidence tending to show that the conduct of this stepmother was Mnd, affectionate, and humane towards these children. There was *1064also evidence offered on the part of the contestants tending to show that the second wife and her children attempted by arguments, persuasions, and even threats to coerce and control the testator in the disposition of his property by his will; and, as evidence bearing upon that subject, the contestants introduced evidence of the declarations of the testator, which it is claimed tended to show that he yielded to the dictation and control of his wife and daughters, or was so far influenced by their conduct in that regard that he did not follow his previously expressed wish or determination to make an equal distribution of his property between all of his children. But it is insisted on the part of the appellants that, as the testator at the time of making this will was of sound and disposing mind, and competent to make a will, as found by the surrogate, and as none of these declarations were made at the time of the making of the will, and are not, therefore, a part of the res gestae, they were incompetent, and cannot be considered and treated as evidence to affect that instrument. The declarations relied upon by the contestants cover a period of several years before the execution of the will, and, standing alone, are not enough, we think, to prove undue influence or fraud at the time of its execution. In Waterman v. Whitney, 11 N. Y. 157, Judge Seldon, after a very exhaustive review of this subject, in which he examines the authorities in England, in other states of this Union, and in this state, sums up the result of his research, in this language:
“These cases must, I think, be sufficient to establish the position that declarations of the testator, made either before or after the execution of the will, are not competent evidence to impeach its validity on the ground of fraud, duress, imposition, or other like cases.”
The learned judge, in the further discussion of this question, conceded the admissibility of the declarations of a testator where the will is attacked upon the ground of want of testamentary capacity, and shows that their admissibility on such inquiry stands upon an entirely different principle from the one sought to be applied here; and he adds:
“The difference is certainly very obvious between receiving the declarations of a testator to prove a distinct external fact, such as duress or fraud, for instance, and as evidence merely of the mental condition of the testator. In the former case it is mere hearsay, and liable to the objection to which mere declarations of a third party are subject; while in the latter it is the most direct and appropriate species of evidence.”
Considered, therefore, as evidence upon the question of mental competency, this evidence was proper. But, after hearing this evidence, the learned surrogate held that the testator was of sound and disposing mind and memory, and competent to make a will. Within the light of these authorities, we cannot consider the declarations of the testator upon the question of fraud, duress, imposition, or other like causes; and, with this evidence excluded from consideration, the finding of the learned surrogate in his fourth and fifth findings, of fraud, circumvention, deceit, and evil practices, by which the natural affections of the testator for the contestants were alienated, and the will was procured to be executed by Hannah Palmateer, Martha *1065B. Palmateer, Maggie B. Palmateer, Mary T. Koons, and Alphonzo J. Koons, is not sustained. Nor do we think the fact that the testator resided with, or in close proximity to, the persons last named, some of whom were the principal beneficiaries in his will, a circumstance sufficient in itself, under the evidence in this case, to justify the conclusion that the will was the result of undue influence. The will was not drawn by either of the beneficiaries. Nor does the evidence disclose that they, or either of them, gave any instruction or direction to the draughtsman of the same. On the contrary, the draughtsman testified that no one talked with him about the will, except the testator, who alone was with him when the instructions were given, and the will was drawn. This evidence is not contradicted or questioned. The testimony of the draughtsman, who is a reputable lawyer, on the subject of the drawing and execution of this will, is as follows:
“Q. State, when you went to draw the will of Mr. Palmateer, just what took place. A. I went in me sitting room, and he told me about how he wanted the will, and I got it up. He told me himself. We were alone in the room, and the other witness did not come in until it was completed. He told me what to write, and what he wanted. I drew it in that manner, and when it was complete called in the other witness. No one else gave me any directions in addition to him. There was no one in the room at the time it was drawn, except perhaps members of the family, who came in and went right out, but did not say anything to us. He signed his name opposite the seal at the end of the will. I asked him, in the presence of this other witness, if he acknowledged this to be his signature,—1 always do this,—if he declared this to be his last will and testament; and he said, ‘Yes;’ if he requested Mr. Edward L. Tompkins and myself to sign as witnesses, and he said, ‘Yes.’ After he signed his name, we signed our names, in the presence of him, and in the presence of each other, as witnesses to the will. I saw him sign the will, and I saw the other witness sign the will. I read the will over to him after I drew it. He said it was all right after I read it over. I do not remember whether I drew more than one copy, but he knew the contents of it, and he was satisfied. Before the witness came in he knew all the provisions. He was over twenty-one years of age. I have known him for about thirty-two or thirty-three years.”
This evidence, it seems to us, falls far short of establishing undue influence. If we assume that the evidence in this case was such as to shift the burden of proving the absence of undue influence upon the proponents, instead of requiring the contestants who assert undue influence to prove it, still the evidence of the circumstances of its preparation and execution would establish such absence. But in this case we see nothing in the evidence calculated to shift the burden from the contestants to the proponents.
In Re Martin, 98 N. Y. 196, Danforth, J., after stating the circumstances attending the execution of the will of the testator, uses this language:
“The case, then, is one where the testatrix had testamentary capacity, a present knowledge of the contents of the will, and where at its execution she was surrounded by all the guards which the statute has prescribed to prevent fraud and imposition. A will executed under these circumstances can be avoided only by influence amounting to force or coercion, and proof that it was obtained by this coercion. The burden of proving it is on the party who makes the allegation. These principles are well settled.” Citing Tyler v. Gardiner, 35 N. Y. 550; Cudney v. Cudney, 68 N. Y. 148.
*1066Such undue influence or restraint must be a present restraint, operating upon the testator at the time of making the will, dominating the will and judgment of the testator, and coercing and controlling his action. McMahon v. Byan, 20 Pa. St. 329; Eckert v. Flowry, 43 Pa. St. 46-51.
In Re Snelling, 136 N. Y. 517, 32 N. E. 1006, O’Brien, J., says:
“So long as her mental powers enabled her to understand and appreciate the amount and condition oí her property, and to comprehend the nature and consequences oí her act in executing the will, she was at liberty to dispose oí her own in such manner as seemed best to her, providing the disposition was her own free act. What the law terms ‘undue influence’ is not established by prooí tending to show that the testator acted from motives of affection or gratitude, though the objects of her bounty were strangers to her blood. The influence or moral coercion, or by whatever other term designated, must be such as to overpower the will of the testator, and subject it to the will of and control of another, in which case it assumes a character of fraud.”
Horn v. Pullman, 72 N. Y. 276; Clapp v. Fullerton, 34 N. Y. 190; Hollis v. Seminary, 95 N. Y. 166; Marx v. McGlynn, 88 N. Y. 370.
Starting, therefore, as we do, with the fact established that the testator was, at the time of the execution of this will, of sound and disposing mind, and competent to make a testamentary disposition of his property, we think that the learned surrogate erred in finding and deciding that the will was the result of fraud or undue influence, and in refusing to admit the same to probate. We think that the surrogate erred also in the admission of evidence of a conversation between the testator and his wife, in the presence of one of the daughters, who was interested in the event of this contest, given by the daughter under proponents’ objection that it was not admissible, under section 829 of the Code of Civil Procedure. The daughter, who was interested in the event, was permitted to. give statements made by her father to her mother, bearing upon the questions involved in this controversy. Such evidence has been held inadmissible. In Re Will of Eysaman, 113 N. Y. 62, 20 N. E. 613, it was held that a person interested in the estate could not testify to a conversation between the testator and another, in which the witness took no part. It is true that the court will not review for such error unless the court can see that the party was injured by its reception. Code, § 2545. But, if the evidence offered was illegal, it seems to have been upon the relations between the testator and his second wife, bearing upon the question of undue influence, and was, therefore, material, and its erroneous reception injurious to the appellants. The decree of the surrogate must be reversed, with costs to the appellants of this appeal, to be paid out of the estate; and, as the determination involves questions of fact, and the appeal was taken from a decree made on a petition to prove a will, an order must be made directing a trial by jury of the material questions of fact arising upon the issue between the parties, under section 2588 of the Code of Civil Procedure.
PUTBAM, J., concurs. HEBBICK, J., concurs in result.