'The appellants present three points of objection to the judgment of the General Term, and of the surrogate, to the admission of the will and codicil in question to probate: First, that they were not properly executed; second, that the testatrix was not of sound mind or competent to execute a will; third, that the execution of the will and codicil was obtained by undue influence over the mind of the testatrix.
Each of these positions depends, for its correctness, upon the facts of the case. And each point so raised depends, for its soundness, upon the truth or correctness in degree of the others; and this case belongs to that class of cases where the duty of examining the facts belongs to this court, and in this regard they are not aided by the findings of the courts below any further than that respect which one court is bound to pay to opinions from so respectable a-source, but which are in no wise to be regarded as controlling.
If we look into the books for authority to direct us in our duty on this review, we cannot find it. The cases all depend upon a peculiar state of facts, and each case upon its own, which has no parallel; and different and opposite opinions between the most distinguished judicial minds are found drawn from the same facts in a given case. The case of Delafield v. Parish, in this court (reported in 25 N. Y., 9) is an instance of this kind. So, too, cases reported from the highest court of authority in the State, in which rules seem to be laid down for the government of courts in future, are either overruled or so discredited by subsequent decisions that they are now disregarded as authority. Steward v. Lispenard (reported in 26 Wend., 255), and Blanchard v. Nettle (3 Denio, 37), are instances of this class. And, if any standard of capacity to *237make a will lias been established by statute or common law in this State, still, the question whether a particular case comes up to that standard, depends, after all, upon the facts, which are generally conflicting, and as to which judges, also, equally distinguished for legal wisdom and discrimination, arrive at entirely opposite conclusions as to that capacity, bio mere judge has as yet been found, I think, capable of drawing a precise and definite line, which shall be adopted as a rule of law to distinguish between idiocy and mental power; and, if this could be done, no two cases could be found in which, in their facts, there would not be such important differences as to bring it back to the question of fact, whether it did or did not come up to the established line.
• In the case of Delafield v. Parish (supra), which is one of the latest cases, a quorum of that court held it to be law “ that the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was icompos mentis,’ or 'non compos mentis,’ in the fixed legal meaning of those terms.” If this is a general rule, applicable to wills of both real and personal estate, then the fixed legal meaning of those terms is also a controverted question, and then an impaired memory, and an impaired mind, are held to be equivalent terms in determining the question whether the testator is compos mentis, or non compos mentis. Our statute contains the following provisions (2 Eev. Stat., § 1, pp. 56, 57, marg. paging): “All persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate by a last will and testament duly executed according to the provisions of this title.” By section 20 of the same title (p. 60), “ Every male person of the age of eighteen years or upward, and every female not being a married woman of the age of sixteen years or upward, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing.” The language of these two sections excluding persons of “ unsound mim,d ” in devises of real estate, and allowing persons of “ sound mmd and memory ” in personal estate, to make wills, would, from the language employed, seem to recognize a distinction between *238unsound mind and unsound memory, but the best judicial construction holds them to be identical in meaning. Judge Selden, in Delafield v. Parish, laid it down that such distinctions are too plain to be denied, and cites high authority for the existence of the distinction, and illustrates it by the case of a maniac whose memory may be sound, and whose mind may be unsound upon only a single idea. I concur in this part of his opinion. And I think it may be equally true, that a person may have an entirely sound mind upon any given question presented to it at the' time, and may reason soundly upon it when so presented, but whose memory is so defective that it may not be able to recall any past event whatever. Judge Selden adds: “ It is equally plain that the competency of persons belonging to one of these classes cannot be determined by rules especially applicable to another class.” And he holds that persons may be non compos mentis who belong to either of these classes, that is, of unsound mind, or of unsound memory. I concur also in this holding.
Among-the cases cited in the very able opinion of Judge Davies in the same case, is that of the Marquis of Winchester (6 Rep., 23 A). In that case the court granted prohibition to probate, on the ground of non-sane memory. It was said, “ that by law it is not sufficient that the testator be of memory when he makes the will, to answer familiar and usual questions; but he- ought to have a disposing memory, so that he is able to make disposition with understanding and reason, and that is such a memory as the law calls a sane and perfect memory.” There is also the case of Harrison v. Rowan (3 Wash. C. C., 385). Judge Washington said: “ He must, in the language of the law, have a sound and disposing mind and memory; in other words he ought to be capable-of making his will with an understanding of the nature of the business in which he is engaged—a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and of the manner in which it is to be distributed between them.” Also, the case of Clark v. Fisher (1 Paige, 171), in which Chancellor Walworth held as follows: “The testator must be of *239sound and discerning mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment in reference to the situation and amount of his property, and to the relative claims of different persons who are or might be the objects of his bounty.” I have selected these cases having more particular reference to the point of the memory of the testatrix, because it seems to me that question in the case was the strongest against her capacity, and was not fully answered in the opinion of the Supreme Court, and it seems to be a strong feature in the testimony.
It is undisputed that the testatrix was a maiden lady, and at the time she made her will was of the age of seventy-nine, and was eighty-two when the codicil was made, was a person of quiet and reserved habits, and of weak mind, and died at the age of eighty-nine. Before April, 1852, she had resided for years with a blind maiden sister. At the sister’s death, she removed to the house of her brother William, the respondent: the sister died in 1852. Before making her will, she had been residing with her brother, the executor, and principal beneficiary in the will. She left in personal estate about $16,623, besides some household furniture and wearing apparrel, and a house and lot on Pearl street, the value of which is not given. She devised to her brother, George W. Eexsen, $1,500, to three nieces $500 each, and all the rest and remainder of her estate, real and personal, without stating its amount, she gave and bequeathed to her brother William, the executor, leaving other brothers and sisters, nephews and neices, ordinarily the object of affection and bounty, without any bequest whatever. The fact whether she had sufficient mind to dispose of her estate, is to be determined from testimony in direct conflict; is of great weight and strength against as well as in favor, and, to a court of review, of great difficulty of determination, without reference to the question of memory. Upon the question of memory, the contesting evidence is without contradiction. I do not propose to enter into a careful and critical analysis of the whole evidence in the case. The view I have taken *240of the case does not require it; though I admit the case, on the point of soundness of mind alone, is one in which, in my mind, the scale is nearly at an equipoise—so near that the onus of proof would change it from the one side to the other. The testatrix made the will in July, 1852, while living with her brother William. The will was in the handwriting of William. The execution of the will was proved by but one of the subscribing witnesses, the other being out of the State. This witness was procured by the executor, who was the only person present, except the witnesses, when they arrived. The will was not read by the witnesses, nor in their presence. The testatrix put her signature to the will in obedience to the directions of one of the witnesses, both of whom were lawyers. After the signature, one of the witnesses put the question to her, “ do you publish and declare this to be your last will and testament, and do you wish us to sign it as witnesses ?” The executor paid the witnesses five dollars each for their services in witnessing the will. If the testatrix had mind and memory enough to make this will, and if it was her will, the execution of it was doubtless sufficient.
On the subject of the memory of the testatrix, one witness, the wife of her brother, Walter Hexsen, who had known her sixty-two years and saw her as often as once a fortnight, ■ sometimes stayed all day and all night, says, “ Her memory was-poor; I asked her about her friends, she had forgotten them all; I observed her memory was failing, and after she had the paralysis her memory was still more gone.” This witness also testified to the state of her mind, which I do not insert.
Barbara Bogart, who,, after testifying to her state of mind, says, “ I don’t think her memory was strong at any time, the death of her sister had a powerful effect upon her, it confused her.” On cross-examination, she says, “for the last five years I could not bring myself to her recollection. I first discovered that she did not remember me. at 'all about six years before she died. * * After the paralysis her mind failed her rapidly.”
*241Catharine M. hiexsen, wife of one of the contestants, age fifty-nine, had known testatrix from childhood of the witness, she testified as follows: “ Katy (the other maiden sister) died in March, 1852. Sarah failed very rapidly after her sister’s death, both-mentally and bodily; the idea of her sister’s death seemed to fill her mind. * * She seemed to lose her mind gradually altogether; she would sit alone, and walk up and down ; she forgot her old friends; I would try to recall her old friends, and found she had forgot one after another, even her brother and sister; I observed that her failure of memory increased as she advanced in age.” To the question put to her, “Was she, from your observation, from the death of Katy to the time of her own death, of sound mind and memory ? ” she answered, “ She was not of sound memory certainly, and her mind was always weak.” On further direct examination, she stated as follows: “Just after Katy’s death she talked intelligently, her mind was not wandering or delirious at any time, she was oppressed at the idea of Katy’s death; I was surprised that she forgot John, because Katy brought him up, and he left all his property to them; she forgot my children except my eldest daughter; this was long ago—ten years.” On further cross-examination: “The conversation about her brother John took place in the parlor of her brother William; I afterward referred to her brother John, but she had forgotten him; can’t say how long before she went to her brother William’s that I first found that she had forgotten John; * * it was nine or ten years ago that I found she had forgotten my children; can’t say whether it was before or after the paralytic stroke; it was when she lived at William’s; * * some three or four years ago, I spoke of Florence, my daughter; she said 1 who is she ?’ I told her; she asked whether it was a boy or a girl? ”
These uncontradicted statements of the impaired memory of a person of naturally weak mind, so weak indeed as to render her capacity for making a will doxibtful, I think did not have due consideration in the court below. Taking the question of memory into consideration in detei'mining *242whether the testatrix was convpos mentis, I think the weight of evidence was not fully regarded.
I am still less satisfied with the decision on the question of undue influenee. Taking into view the state of mind and memory of the testatrix; the relationship between her and the-principal legatee and devisee; the fact that this beneficiary was her agent, that she lived with and was supported by him; the form of the will, omitting to name any sum given to the respondent; the omission to name her blood relatives equally near to her; the fact that the will was drawn by and prepared by her said confidential agent, with no evidence of its being read to her, with no evidence of directions from her as to its dispositions; the agency of the respondent in obtaining legal witnesses to its execution but not to its preparation; his liberal gifts for such service to witnesses; these are a combination of circumstances creating not only great suspicion of unfairness, but are such constructive evidence of undue influence as casts upon the respondent the onus of proving fairness and integrity on his part, in relation to the instrument produced by him, which he claims to be her will and codicil. This, I understand to be a rule of law applying to all instruments creating estates in favor of a party standing in confidential relations with the person from whom the instrument is obtained. Whether it be attorney and client, agent and principal, physician and patient, pastor and parishioner, parent and child, brother-and sister—whatever the confidential relation may be where the influence that is obtained by habitual confidence, where the one is dependent or relies upon or reposes in the confidence of the other, instruments obtained will be set aside as presumptively arising from the exercise of improper influence, and as being against propriety and public policy. In Evans v. Ellis (5 Denio, 640), a case in the Court of Errors,- a security taken by a solicitor from his client was held to be presumptively void and unfair, and the onus of proving its fairness was on the solicitor. Beardsley, J., said, “ that no security given by a client to his solicitor should be allowed to stand ■in any case- unless its fairness in every respect be shown by *243the solicitor.” Judge Story has said, “ that the law, with a wise providence, not only watches over all transactions of parties in this predicament, hut it often interposes to declare transactions void (Story’s Eq. Jur., § 315); and the rule is the same between principal and agent. (Id., § 311.)
In Sears v. Shafer (6 N. Y., 268), Judge Gridley sums up the whole doctrine as follows : “A court of equity interposes its benign jurisdiction to set aside instruments executed between persons standing in the relations of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations in which one party is so situated as to exercise a controlling influence over the will and conduct and interests of another. In some cases undue influence will be inferred from the nature of the transaction alone, in others from the nature of the transaction and the exercise of occasional or habitual influence.” The following authorities are to the same effect: Howell v. Ransom, 11 Paige, 538; 10 id., 352; 2 Denio, 607; Hill on Trustees, 156 to 162 ; Story’s Eq. Jur., §§ 308 to 324; 16 N Y, 285; 13 Barb., 524; 31 id., 9; 2 Bevan, 75; 7 Simons, 539; 15 Vesey, 120.
■ These, with a series of cases uniform in their tendency are irresistible in their authority in casting the presumption against the good faith of this will and codicil; they not only throw the onus upon the respondent as to the state of the mind of the testatrix, but more than this, the onus is cast upon him of showing that this will was read to the testatrix, or that she dictated and understood its terms. He has failed to do this. The advantages of the will to him are so decided, that they must be held to cast this legal, presumption of fraud and breach of confidence upon the respondent. He has not met it. “ The law demands that where confidence is reposed, it must be faithfully acted on, and preserved from any intermixture of imposition. If influence over another is acquired, it must be kept free from taint of selfish interests and cunning, and overreaching practices.” (Story’s Eq. Jur., §308.) The respondent has failed to relieve himself from this presumption.
*244If this is a correct view of the legal presumption, in this case, then, even the execution of the will fails .of proper proof. I am, for these reasons, for reversing the judgment of the Supreme Court, and of the surrogate in admitting the will to probate.
All concur in opinion of Davis, J., except Potteb, J., whose dissenting opinion is given.
Judgment affirmed, with costs.