The Surrogate.—There are but two questions to be considered, as the result of this testimony. The first is whether the subscription to the will by the witness Dubois, nnable to understand German, and to whom, the declaration and request of the testatrix had to be translated by the other subscribing witness, was a compliance with the statute. The object of requiring two subscribing witnesses is undoubtedly to guard against imposition upon, or mistake of, the testator, and in a case where one of the witnesses must depend upon the statement of the other as to what is said by the testator, he would appear to be a witness only as to the act of signing, and if that were literally true in this case, I should certainly hesitate in holding it sufficient proof.
Suppose, for example, both subscribing witnesses had been incapable of understanding a word of what the decedent said, and an interpreter had stated to them, respectively, that the decedent declared to them that the instrument was her last will and testament, and that she requested them to subscribe their names as witnesses thereto. They would have no assurance of the fact, except the statement of the interpreter, and the verity of the act would seem to be entirely dependent upon his . testimony, as to the truthful interpretation. And it seems to me that it would fall short, altogether, of the *449proof of the material facts required by the statute, and that those declarations, thus interpreted to two witnesses, would add nothing to a like interpretation to one. But in this case, the decedent did understand and speak some English, and the witness, Dubois, swears that the inquiry was made by him, of the decedent, in English, if the instrument was her last will, and she answered “ Ja,” and that when the other witness appeared to ask the question in German, she answered in the same way ; and that in the question the other witness used the word testament, and that he had been theretofore requested to become a witness to her will by decedent. Under this proof I am inclined to hold the will to have been duly executed.
The second is whether the testimony of the proponent’s counsel is sufficient to justify its rejection, on the ground that the instructions were received through the principal beneficiary, there being no satisfactory proof that the decedent ever gave any such instructions.
It has been held, in repeated cases, that where a person, occupying a fiduciary relation to the testator, receives a legacy, and has a controlling agency to the execution of the will, the circumstances are deemed suspicious, requiring the fullest explanation, such as proof of capacity and free exercise of voluntary choice. (1 Reelf. on Wills, 515, &c.; Id., 122.)
But if this will came within the definition of an in-officious testament, it seems to be relieved from suspicion by the fact, well proved, that there was an understanding between decedent, the principal beneficiary, and the testatrix’s husband, before his death, that after his death decedent should become a member of the *450Wilzinski family, and that Mrs. Wilzinski should have the property at the death of the testatrix ; that, in pursuance of this agreement, testatrix became and remained an inmate of the Wilzinski’s for about ten years ; that she bad repeatedly stated, before the execution of the instrument propounded, that she intended to give the most of her estate to Mrs. Wilzinski, and that, in the absence of the principal beneficiary, Mr. Morris carefully translated the will to her, and that she understood its terms.
\ But while the civil law defines an inofficious or undutiful will to be such as substantially departs from the disposition of the estate, as it would be distributed in case of intestacy, I am of the opinion that such a definition is entirely inconsistent with the law of wills, as recognized and established in this country. For the authority to make a will implies the power to discriminate between, or disinherit, next-óf-kin ; and the fact of such disinheritance or discrimination raises no presumption of undue influence.
I am of the opinion that the instrument propounded is proved to have been executed in conformity to the statutes of this state, by the decedent, when she was of sound and disposing mind, free from restraint, and should therefore be admitted to probate.
Ordered accordingly.