This case comes to us upon appeal by the proponent from the decree of New York County Surrogate’s Court denying probate of the propounded will, entered upon the jury’s verdict declaring that the instrument was procured by undue influence practiced upon the testator. A prior jury had reached the same conclusion, and this court (Matter of Kaufmann, 14 A D 2d 411) reversed and ordered a new trial, saying in part (p. 413) : <£ the verdict of the jury is against the weight of the credible evidence, and, in fact, some of us in the majority are of the opinion that upon the authority of Matter of Walther (6 N Y 2d 49) there was not sufficient evidence of undue influence to justify the submission of the question to the jury, and that the most that was shown was the existence of lawful influences arising from the claims of a close relationship which were not inconsistent with an assumption that the will expressed the voluntary intent of the testator.” We agree with that expression of opinion. Upon the second trial each side added to the proof of the factual contentions in its favor made upon the first trial. It is not disputed that the testator was competent to make a will nor that the will was executed in accordance with the required legal formalities. There is no claim nor evidence of coercion.
The case for the contestants is grounded completely upon circumstantial evidence, and consists of evidence of a relationship between the testator and the proponent Weiss begun in the late 1940’s and continuing until testator’s death in April, 1959. No specific act is relied upon as constituting the alleged undue influence inducing the propounded will; but the claim is that from about 1950 testator was under the complete domination of Weiss.
It appears that Weiss was born in 1911 and the testator in 1913. They each had interests in art and literature. Neither of them married. The testator was a millionaire by inheritance, and Weiss was without material assets of consequence. Weiss had been admitted to practice law, but never practiced. He claimed to have skill as a financial consultant, and did some writing, including poetry. In 1948 the testator and Weiss entered into a written agreement by which ostensibly the testator employed Weiss at an annual salary of $10,000 to advise him in financial matters. In January, 1949 testator and Weiss *488entered into a partnership as financial consultants and opened offices therefor; but in fact they never did any such business. Contestants’ evidence negates the value of Weiss’ financial ability and services to the testator. In 1949 Weiss was given power of signature on all of testator’s bank accounts, and soon thereafter testator gave Weiss powers of attorney which were never revoked, including authority to enter testator’s safe-deposit box. Testator placed his business affairs largely in Weiss’ hands and had complete confidence in him.
On April 19, 1950 the testator made a will in which for the first time he named Weiss as a beneficiary, giving him his personal effects and stock in Multi-Deck Corporation (which then had prospects, but little value), canceling any debt of Weiss to testator, and giving the rest of his property to his two brothers and two nephews. On June 13, 1951 testator duly executed a new will in which he increased the provisions for Weiss by including a watch and chain, testator’s residence at 42 East 74th Street, and one half of his residuary estate. He made him trustee of some trusts provided for therein, and also made him one of the executors. On the same date he wrote a letter in longhand which he placed with said will as an explanation to his family of his reasons for giving so much to Weiss. Contestants claim that said letter was also procured through undue influence by Weiss upon the testator. The record shows both that Weiss knew of the letter when it was written and that upon the testator’s death he denied to the testator’s Aunt Birdie prior knowledge thereof. A will dated April 8,1953 was substantially the same except for an increased charitable gift. A will dated June 9, 1954 made about the same provision for Weiss, but omitted testator’s brothers and gave one quarter of the residue to each of his two nephews. A will dated October 21, 1955 contained substantially the same provisions as the one of June 9, 1954, except it included in the gift to Weiss a new Summer house just acquired by the testator at Quogue. In the propounded will, dated June 19, 1958, testator gave his interest in the Kaufmann Furniture Company, Beading, Pennsylvania, to his two nephews and gave the remainder of his estate to Weiss.
In the meantime, in 1952 the beneficiary on two of testator’s Massachusetts Mutual Life Insurance Co. policies was changed to Weiss, so that upon testator’s death Weiss received $63,183.01 therefrom; testator’s Aunt Birdie received $31,633.22 therefrom and testator’s estate received $43,652.30 therefrom. In addition, in the same year four of testator’s policies with *489Pennsylvania Mutual Life Insurance Co. in total face amount of $25,000 were made payable to Weiss.
In 1950 testator and Weiss took a trip to Europe and stayed there a few months. This was repeated in other years; and in 1956 they took a trip around the world. There is evidence that Weiss’ expenses thereon were paid by him currently or were charged to his salary.
Testator relied heavily upon Weiss to attend to most administrative details and relied upon his business advice. The record shows that at an early date testator’s father and brother Joel, and other members of his family and friends, resented testator’s close relationship with Weiss. It also shows that Weiss knew this, and he had little love for them. Contestants charge that Weiss was the cause of their business differences with testator. They assert that Weiss was the mastermind behind all of testator’s demands in his business relations with them, and who in the background prepared the letters which testator sent to them, many of which are in evidence. They also contend that Weiss used the differences thus arising between testator and his brothers as a means of encouraging testator to change his will in Weiss’ favor; and there is evidence that Weiss had a hand from time to time in advising testator’s attorneys as to testamentary changes testator desired. In support of the charge of undue influence contestants have also presented evidence that testator was subservient to Weiss’ wishes on a number of occasions from 1952 onward, with particular reference to social relations. There is also evidence that testator used sleeping pills, lost weight and submitted to psychoanalysis.
This evidence has been sufficient to cause two juries to declare that testator’s will was induced by undue influence. Was it sufficient therefor under the laws of this State?
It is elementary that the statutory right of a competent person to dispose of his property as he wishes may not be thwarted by disappointed relatives nor by jurors who think that the testator used bad judgment or was misled.
“ Undue influence is a fact which must be proved by the contestant and not merely assumed to exist. (Matter of Smith, 95 N. Y. 516; Matter of Ruef, 180 App. Div. 203, affd. 223 N. Y. 582; Matter of Rundles, 216 App. Div. 658.) Like any other fact, it may be proved by substantial evidence but the circumstances must lead to it not only by fair inference but as a necessary conclusion. To avoid the will of a competent testator on the ground of undue influence, the contestant must show *490facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence. [Cases cited.] ” (Matter of Henderson, 253 App. Div. 140, 145.) “ So, too, the mere fact that one is the sole legatee or sole distributee is not in itself evidence of the exercise of undue influence. (Matter of Dowdle, 224 App. Div. 450, affd. 256 N. Y. 629.)
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‘ ‘ A mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized (Cudney v. Cudney, 68 N. Y. 148, 152; Matter of Reid, 298 N. Y. 878).” (Matter of Walther, 6 N Y 2d 49, 55.)
The verdict in this case rests upon surmise, suspicion, conjecture and moral indignation and resentment, not upon the legally required proof of undue influence; and it cannot stand.
The record shows that the testator was intelligent and generally healthy. The evidence that he lost weight was explained by his doctor who said that he had placed him upon a no-fat diet. True, the testator was not wholly like other people. He had little zest for business, which fact set him apart from his family. He had artistic ability, and particularly loved to paint. So did Weiss. They had common interests. Testator felt and said that he had uncommon ability as a painter and that some day he would be known for his artistic work. In this, he was not wholly wrong, for it appears that eighty museums have accepted his work for permanent display.
The record is replete with evidence of the friendly relation, indeed love and affection, that existed between testator and Weiss for a decade. There is no substantial evidence that their relationship was not one of mutual esteem and self-respect. The isolated incidents of testator bowing to Weiss’ wishes on certain occasions over this period fall far short of conclusively pointing to a subserviency, when viewed in the light of all the evidence. True, testator relied upon Weiss in business and administrative matters, but that is not to say that testator was not essentially in command. There is evidence that at times testator made his own business decisions. The fact that Weiss advised testator in his business dealings with his brothers is not inconsistent with his position as testator’s financial advisor. Moreover, the record shows that under the proposed Fairfax deal testator’s brother Joel was to be paid more per share than the testator, which the testator *491did not like, and that by reason of testator’s lawsuit against his brother, testator collected about $70,000 more than he had been offered. Certainly, that affords no ground for suspicion of Weiss. The testator did not overlook his nephews; and the evidence shows that in 1955 at a time when he changed his will the testator had spent considerable money refurbishing Aunt Birdie’s apartment; and chided his brothers with reference to their lack of concern for her. Substantial evidence also shows that for years prior to his death testator acted normally in his outward relations toward Weiss and other people in Weiss’ presence, And within a few weeks of his death, in Key West, Florida, when Weiss wanted to return to New York City testator declined to do so at the time, and Weiss came on to New York alone. Such conduct on the part of the testator by no means permits of “ a necessary conclusion” that the testator was dominated by Weiss. Although testator placed confidence in Weiss, the relationship was not that of attorney and client, and Weiss had no part, directly at least, in the preparation and execution of these wills. The prior decision of this court disposes of that aspect of this case (14 A D 2d 411, 413). It is noted also that in Matter of Walther (6 N Y 2d 49, 56, supra) the court observed “ that Mrs. Barnard was a fiduciary acting as committee for her sister” did not aid contestants’ position.
The letter written by testator on June 13, 1951, proponent’s Exhibit 19, and placed with his will of that date, and later reviewed with his attorney and placed with later wills, shows the regard which testator had for Weiss. This letter appears to lay bare the fact and prove the suspicion which members of testator’s family had of the intimate relationship which existed between the two men. That and the falsehoods told by Weiss may have been among the reasons why Weiss failed to take the witness stand upon the trial. In our opinion, however, there was no legal compulsion upon Weiss to testify beyond the testimony which he gave on the examination before trial and which was read at length upon the trial of this case.
The issue in this case is not what were the morals of these men, nor whether testator led a normal life, nor whether Weiss has been proved a liar. The issue is, does the propounded instrument represent the intrinsic wishes and will of the testator, or was it the product of the command of Weiss which the testator did not really want to follow, but was unable to resist? The veracity of Weiss, it is true, may not be ignored in considering this issue.
*492Every act of the testator from the date of Exhibit 19, June 13, 1951, to the time of his death was consistent with what he expressed in that letter. Contestants’ argument that Weiss induced testator to write said letter, Exhibit 19, to build a case for leaving his estate to Weiss, does not ring true. It is not reasonable that the letter would have contained the candid statement about sex, if it were written for such ulterior motive. It is true that contestants claim that at every stage testator was dominated by Weiss; but the period of time alone negates that claim. It is not claimed that the testator was hypnotized by Weiss during all this period, and certainly no evidence thereof has been presented. The record shows that for years testator had business differences with his brother Joel; and it shows also that he rarely saw his relatives in the years in question. In the meantime his attachment for Weiss apparently grew; and testator openly proclaimed his friendship for Weiss. In Exhibit 19 testator expressed for the eventual information of his relatives why he wished to leave his assets to Weiss. As far as the motive is concerned the relationship may be likened to that of one who has a mistress. Morals aside, upon the facts in this case “ Proof of the circumstance that the will was an unnatural one is lacking ’ ’. (Matter of Henderson, 253 App. Div. 140, 145, supra.) Of course, the court does not condone the relationship, but the moral law may not be substituted for the law of wills; and it should not be overlooked that difficult cases tend to make bad law. Undoubtedly the testator was influenced, but the evidence in this case is entirely consistent with the complete lack of undue influence. Yet, because of the suspicious circumstances involved, the majority of this court as well as the court below would deny him his legal right to dispose of his property as he has chosen to do.
Contestants’ psychiatrist, Dr. Herman, testified that he did not know for what reason the testator was psychoanalyzed; that the testator was an introvert; and that another psychiatrist could reach a different conclusion than did Dr. Herman concerning testator’s independence. However misguided testator was, in view of his admitted competence and the equivocation by Dr. Herman “ The evidence is in no way inconsistent with the assumption that the will expresses the voluntary intent of the [testator] and does not satisfy the test that intervention and undue influence can only be established by evidence that is not inconsistent with..a contrary hypothesis ”. (Matter of Walther, 6 N Y 2d 49, 56, supra.)
*493There was, thus, no question of fact for the jury; and proponents’ motion for a directed verdict should have been granted. The decree appealed from should therefore be reversed, with costs to all parties appearing separately and filing briefs, payable out of the estate, and the matter remitted to the Surrogate’s Court with directions to admit the will to probate.
Breitel, J. P., and Babin, J., concur with McNally, J.; Wither, J., dissents and votes to reverse, in opinion, in which Stevens, J., concurs.
Decree, so far as appealed from, affirmed, with costs to respondents payable out of the estate.