Black v. Foljambe. tion of his property. Dr. Van Wagner says, as before stated, that on Sunday the testator asked him to let him know whether he thought he was likely to die soon. The reason appears to have been that he had some business to arrange. It is not shown that he had any business to do, except to make his will, and that, probably, was the business to which he referred. The testator sent for Mr. Black to come to him on Monday, and bring his will with him. He told Mr. Black that he had sent for him, and for that purpose. Mrs. Brown wrote a note to Mr. Black, as she says she did. The testator communicated to Mr. Black the fact that he wanted to make a new will, and "to have things different" from what they were in the then existing will, and he told him what he wanted, viz., to give his wife all his property, and to appoint Mr. Black and her, executors. He knew Mr. Muir was in the house, and what his business there was. He knew from Mr. Black that Mr. Muir was drawing the will. The testator was anxious that the will should be so drawn and executed that it could not be successfully contested. After the will was read over to him, he requested that it be handed to him, in order that he might, himself, read it. It was done, and he read it over himself, and said he guessed it was all right. It does not appear that Lizzie Jones was mentioned in any previous will, and it does not appear that she had any claim whatever on the testator, or to his bounty. The fact that Mrs. Brown's family were desirous that Mr. Muir should draw the will, and took measures to bring him to the house for that purpose, is of no great weight under the circumstances. This conduct on their part may have been due to meddlesome officiousness merely, or to a desire to have the will drawn by a lawyer whom they knew, so that they would be sure it would be done properly. They brought the testator's lawyer to the house with the will, which was in his possession, to attend to the business as the testator requested, and he, in fact, did so. The will that was drawn was in accordance with the testator's wishes and intentions towards his wife, as previously expressed. It is urged that the difference between the will of June and the will in question is not only very notable, but evidence of 39 244 47 261 Byard v. Conover. undue influence. The former will tied up the residue of the estate in trust for twenty years, giving to George B. Whitfield an annuity of $50 until his majority, and Mrs. Brown one of $300 to the end of the twenty years, and then gave $1,500 to the Whitfields, if living, and the rest to Mrs. Brown, if living, with limitation over to charities. As before stated, the testator, in November, determined to revoke the gifts to Robert L. and Lizzie Whitfield, so that the difference between his intention in November, and his intention in January following, was to the disadvantage of George B. Whitfield and the charitable associations. It is not at all improbable that, during his sickness at Mrs. Noe's house, the testator concluded that he ought to give all his property to his wife, to the exclusion of George B. Whitfield, and that he ought to bestow it upon her in such a way that she could have the benefit of it at once upon his decease, and that therefore he ought not to tie it up with a trust, and that there was no reason to apprehend danger to her interest from the influence of her father. I am unable to concur in the view of the orphans court, that the will was obtained by fraud. The decree will, therefore, be reversed, and the will admitted to probate. Under the circumstances, the costs and a reasonable counsel fee in both courts should be paid out of the estate, ELIZA BYARD, appellant, v. KATE CONOVER, respondent. A bachelor, seventy-two years old, while in a moribund condition, signed a paper purporting to be his will, and giving all of his property to his house keeper, who had lived with him for many years. The paper had been prepared by her four years before, and she testified that he had put off executing it, although meanwhile frequently requested by her to do so. On the day when he signed it, she sent for the witnesses, told the attending physician that if the Byard v. Conover. testator was not going to live, she wanted to have a paper signed. None of the testator's brothers and sisters was present, or informed of the making of the will, although one brother lived in the adjoining house. To one of the witnesses, in reply to a remark that they had come to witness his will and supposed he knew all about it, he replied that he did not know anything about it. The evidence as to his intentions in disposing of his property was conflicting.Held, that the paper should be refused probate, on the ground of want of capacity and undue influence. Appeal from decree of Salem orphans court, submitted on stipulation and briefs of counsel. Mr. W. T. Hilliard, for appellant. Mr. A. H. Slape, for respondent. THE ORDINARY. This is an appeal from a decree of the orphans court of Salem county, refusing to admit to probate an instrument of writing purporting to be the will of Stephen Willis, deceased, late of the county of Salem. The testator was a bachelor of about seventytwo years of age. By the will he gives $5 to each of his four sisters and two brothers, and then gives all the residue to Eliza Byard, his housekeeper, absolutely. She had been his housekeeper for many years. The will was signed when he was in extremis. He signed it at about half-past four in the afternoon, and died at about a quarter to seven in the evening of the same day. The witnesses were his physician, Dr. Patterson, and George R. Morrison, surrogate of the county. The testator was in a dying condition at the time. Dr. Patterson made a professional visit to him in the morning of the day and found him extremely ill, without perceptible pulse either at the wrist or temples, and his flesh cold. He called again at noon and found him in no better state. He came again at four o'clock in the afternoon and his condition was no better; he was nearing his end. It is very doubtful, to say the least of it, whether he had sufficient capacity to execute a will at that time. He appears not to have had the physical strength to make his mark to the instrument. It was made by Mr. Morrison's clasping the testator's hand holding the Byard v. Conover. pen, in his own, and guiding it in making the mark. The testator was too weak to rise or to be raised in bed. Mr. Morrison says he hardly thinks the testator could have made the mark with out assistance, and that they both together made the mark somehow. He further says that he is satisfied that the testator "intended to make the mark, at any rate." Dr. Patterson says the testator did it " in a way as if he did not seem to care." He also says he thought Mr. Morrison made some exertion to have him make his mark. The proponent requested Dr. Patterson, at his visit at noon, to bring Mr. Morrison with him at four o'clock, but he declined to do it. In answer to the question whether he would have signed the will as a witness if he had not considered that the testator was in a condition to know what he was doing, he answered that when the will was signed he was not very well satisfied with the testator's signing it; that he did not "feel entirely satisfied that he was able to execute it "that is, that he was not satisfied that he had the requisite mental capacity. The testimony of Mr. Morrison does not establish the testator's testamentary competency. The testator, neither by word nor deed, expressed any desire to make a will. The proof is that it was the proponent and not he who wanted to have it made. She said to Dr. Patterson at noon that if the testator was not going to live she wanted to have a paper signed, and she asked him, as before stated, to bring Mr. Morrison with him at four in the afternoon, but he declined to do so. It was she who sent for Mr. Morrison. When Mr. Morrison came there she told him that the testator wanted to make a will. He set about making preparations to draw one, and she said she had one written and then handed him a paper-the one which was subsequently signed-saying that the testator knew its contents. Mr. Morrison showed the paper to the testator and asked him if he knew its contents, and he said he did. Mr. Morrison then said that there was no executor named in the will. The testator said he did not know whom to make executor, and asked how a gentleman whom he named would do, to which Mr. Morrison replicd that he thought that gentleman would not care to attend to it. Mr. Morrison says the testator then did not seem to know whom Byard v. Conover. to name; that either the testator or the proponent suggested that he should act, but he declined, and proposed that the proponent should be appointed, to which, he says, the testator "assentedseemed to agree to it." Mr. Morrison took the paper from the room to insert a clause appointing the proponent executrix and to fill in the dates. While he was gone, Dr. Patterson said to the testator that they had come to witness his will, and said he supposed the testator knew all about it, to which the latter replied that he did not know anything about it. Dr. Patterson went into the room in which Mr. Morrison was and told him this, and the latter said the testator should know about it. Mr. Morrison says he read the will over to the testator, who seemed satisfied with it. He also says that, after the will had been signed, he asked the testator whether that was just the way he wanted to leave his property, and the testator said, in substance, that that was the best he could do with it. The testator was in a moribund condition. Dr. Patterson knew he was very near his end. He himself knew it. He said he wanted to die and go to heaven. His physical powers had so failed that he had no perceptible pulse and his flesh was cold. He was too weak to be lifted up to make his mark, and it is very doubtful whether he had strength to make his mark. Mr. Morrison, as before stated, says the testator did it, or "intended to do it." The mark was probably made by Mr. Morrison holding and moving the testator's hand in his own. He expressed no desire to make a will. He gave no instructions for any. To Dr. Patterson he said he knew nothing about it. The doctor says the greatest number of words he uttered was when he said that that was the best he could do. The proponent drew the will. She says she drew it four years before that time, and had it copied by her niece, Mrs. Scott. She says she asked Mrs. Scott's son to draw it, but he refused, and then she drew it and got his mother to copy it; that Mrs. Scott kept it until two weeks before the testator's death, when she (proponent) got it and took it home and read it to him. She says he was anxious to sign it, and on the day of his death requested her to send for Mr. Morrison, and she did But this does not accord with her statement that the testator |