Kellogg, J.:
The chief beneficiary prepared the will and caused its execution. The witnesses saw it signed, but the contents were not made known to them or to the testatrix at the time. Ho one but the husband knows whether or not she understood its contents and effect. He is a lawyer. June 17, 1910, she made her will in which she only gave him the use of the house and furniture during his life, and at his death it went to her brothers and the descendants of a deceased brother. The real estate was worth about $2,350, and she had $5,000 cash in the bank. The principal part of the money came from her deceased brother; the real estate from her mother. She was fifty-eight years of age and had been married to her husband for ten years; part of the time they had lived separate from each other. She was taken suddenly sick, was in a great deal of pain and was put under the effect of opiates. She had told one of the witnesses some time before that she desired to make some changes
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in her will; that her brother’s son was not satisfied; that she had received a letter from him and that she would fix it so that he would be satisfied. This is the only evidence, aside from the will itself, of any intent upon her part to change her will. The will of March 19, 1912, now in question, directed the executor to sell the house and furniture, gave one-quarter of the proceeds to the husband, one-quarter to her brother James, one-quarter to her brother Robert and one-eighth each to John and Sarah, the son and daughter of a deceased brother. By the first will her residuary estate was to go equally to her brothers and John and Sarah, the children of her deceased brother William, after the payment of some small legacies. The brother Robert is made the executor of both wills. The principal difference between the first will and the second is that there is no residuary clause in the second will and it expressly revokes the former will, and, there being no children, she dies intestate as to her personal property, and under the law he takes it as surviving husband. The circumstances require explanation. Clearly the second will is not as favorable to her nephew, for whom she claimed she was making the change, as the former will. If the second will had directly given the personal property to the husband, and there was a reasonable probability that she knew its contents, the situation might be different. The testatrix was in a critical condition, and might easily have been imposed upon. The husband gets the personal property by a construction of law placed upon the second will, which the testatrix could not understand. If by it he intended to get the personal property it called for an explanation to the testatrix, and he should satisfy the court that she knew the effect of the will. The will is the act of the husband, a lawyer, who has made himself the chief beneficiary of his wife, when the former will, and this will, so far as the language goes, indicates that she did not have that intention. If she intended to make him the chief beneficiary of the will we would expect the will to say so, and would expect that he would be made the executor. We would not expect it to be done by indirection, and in a manner which only a lawyer could understand. If this will had been read to the testatrix and the witnesses they would not have been, able to understand that by it the husband
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was getting substantially all of the personal property and was the chief beneficiary; they naturally would have understood that he was only benefited to the extent of a quarter interest in the real estate. - Clearly, if she intended to give the money to her husband, she would not have framed the will in the manner in which it appears, and there would be no good reason why he should have it framed in that way. The circumstances of this will show clearly the wisdom of the rule that when a lawyer writes himself as chief beneficiary in a will he must establish that the will is not his will but the will of the testator.
We conclude, therefore, that the paper of March 19, 1912, is not the will of the testatrix, but was an instrument which the husband imposed upon her, and which she did not understand. It was his will, and not her will.
I favor a reversal of the judgment and order, upon the law and the facts, with costs, and a dismissal of the complaint, with costs.
All concurred, except Woodward, J., dissenting, in opinion.