Statement of case.

Gen., 5 H. & J. 400; Prichard v. Thompson, 29 Hun, 296, 297; Garvey v. McDevitt, 72 N. Y. 563-4; Kane v. Gott, 24 Wend. 653; Graff v. Bennett, 31 N. Y. 9; Campbell v. Foster, 35 id. 371; Vesey v. Johnson, 1 S. & S. 69; Fowler v. Garlike, R. & M. 232; Ellis v. Shelby, M. & C. 286-290; Oliffe v. Wells, 130 Mass. 224.) The doctrine of equity which declares that a trust exists in such a case prevails to the same extent, and has the same force and effect in the State of New York as elsewhere. (Walgrave v. Tebbs, 2 K. & J. 321–322; Glass v. Hulbert, 102 Mass. 39, 40, 43; Brown v. Lynch, 1 Paige, 147, 158; Williams v. Fitch, 18 N. Y. 548; Pickett v. Logan, 14 Ves. 234; Barnesby v. Powell, 1 id. 289; Young v. Peachy, 2 Atk. 354; Thynn v. Thynn, 1 Vern. 296; Devinish v. Baines, Prec. in Ch. 3; Chamberlain v. Chamberlain, 2 Eq. Ca. Abr. 43; Reech v. Kennegal, 1 Ves. 124; Derokeford v. Wilks, 3 Atk. 539; Strickland v. Aldrige, 9 Ves. 516; Mestaer v. Gillespie, 11 id. 626; Hoge v. Hoge, 1 Watts [Penn.], 214-218; Reech v. Kennegal, 1 Ves. Sr. 122; Easterly v. Barbour, 65 N. Y. 262; Randall v. Dusenberry, 39 Sup. Ct. 180; 63 N. Y. 645; Martin v. Funk, 75 id. 134; Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch., 73 id. 90; Bissell v. M. S. R. R., 22 id. 258, 259.) The whole residuary clause, being the fruit or result of a base agreement, should be adjudged void, and set aside on grounds of public policy. (3 R. S., chap. 6, art. 3, § 38, p. 63; Huguenin v. Basely, 14 Ves. 278; Tyler v. Gardiner, 35 N. Y. 595; Tracy v. Tallmadge, 14 id. 181, 193-218.) It was error for the surrogate and for the court below to avoid the consideration upon the question of undue influence of the actual legal effect of the letters of instructions taken in connection with what they represented the effect to be. (Fellows v. Hermans, 4 Lans. 243, 246.) In considering what the legal advisers of the testatrix did lead her to believe, the contents of the letters are the highest and best evidence. (Jones v. Jones, 10 Hun, 442; Grierson v. Mason, 60 N. Y. 397.) Where a party has procured from a testator a devise in a will to himself, under a promise (even if a verbal promise only) to use it for the bene

Statement of case.

fit of another, it is a case of trust. (Walgrave v. Tebbs, 2 K. & J. 321, 322; Reech v. Kennegal, 1 Ves. Sr. 122; Williams v. Fitch, 18 N. Y. 546; Muckleston v. Brown, 6 Ves. Jr. 52-69; Russell v. Jackson, 10 Hare, 198; R. Shultz Appeal, 80 Penn. St. 397; Hooker v. Axford, 33 Mich. 453; Fellows v. Hermans, 4 Lans. 243-6.) A trust to a corporation, which is within the general purposes of its charter, is as valid as an absolute legacy. It would not be void for uncertainty. (Vidal v. Gerald, 2 How. [U. S.] 187; Adams v. Perry, 43 N. Y. 493-495; Power v. Cassiday, 79 id. 607; Curran v. Fanning, 13 Hun, 469; Prichard v. Thompson, 29 id. 296.) Where the trust provisions of the letters are invalid, or illegal, a trust results for the heirs or next of kin. (Muckleston v. Brown, 6 Ves. 51; Russell v. Jackson, 10 Hare, 204; Strickland v. Aldridge, 9 Ves. 515; Tee v. Ferris, 2 K. & J. 357; Boson v. Stathan, 1 Ed. 508; Moss v. Cooper, 1 J. & H. 352; McCormick v. Grogan, L. R., 4 H. of L. 82; Jones v. Bodley, L. R., 3 Eq. Cas. 635-641-658; Rowbotham v. Dunnett, L. R., 8 Ch. Div. 430-443; Walgrave v. Tebbs, 2 K. & J. 313; Saltmarsh v. Barrett, 3 De G., F. & J. 279; Hooker v. Oxford, 33 Mich. 453; Moss v. Cooper, 1 J. & H. 352; Пuguenin v. Basely, 14 Ves. 289; Jones v. Badley, L. R., 3 Eq. Cas. 635-641-658; Ilorn v. Pullman, 10 Hun, 473; 72 N. Y. 278, 279; 1 Greenl. on Ev., § 174; Shailer v. Bumstead, 99 Mass. 197-8; Atkins v. Sanger, 1 Pick. 192; Smith v. Sargent, 2 Hun, 107.) The provisions, or so-called trusts, contained in the letters are all invalid. (2 R. S. [6th ed.] 1106, § 55; 1101, § 15; 1167, § 1; Schettler v. Smith, 41 N. Y. 334–5; Adams v. Perry, 43 id. 497–500; Garvey v. McDevitt, 72 id. 561; Levy v. Levy, 33 id. 101, 103; Dashiel v. Atty.-Gen., 5 H. & J. 400; Prichard v. Thompson, 29 Hun, 296, 297; Kane v. Gott, 24 Wend. 653; Graff v. Bennett, 31 N. Y. 9; Campbell v. Foster, 35 id. 371; Vesey v. Johnson, 1 S. & S. 69; Fowler v. Garlike, 1 R. & M. 232; Ellis v. Ellis v. Shelby, M. & C. 286-290; Oliffe v. Wells, 130 Mass. 224.) The scheme being illegal is against public policy,

Statement of case.

and the procuration of the will by such means necessarily involved undue influence. It is a conclusion both of law and fact. (Muckelstone v. Brown, 6 Ves. Jr. 65, 69; Boson v. Statham, 1 Cox's Ch. 13, 20; Schultz Appeal Case, 80 Penn. St. 397; Downing v. Marshall, 23 N. Y. 386, 387; Tracy v. Talmage, 14 id. 141; Holmes v. Mead, 52 id. 540; Fellows v. Heermans, 4 Lans. 244; President v. T. & L. R. R., 7 id. 247-8; Knapp v. Warner, 57 N. Y. 668; Russell v. Winne, 37 id. 595; Way v. East, 2 Drew, 44, 67; Wight v. Douglass, 7 N. Y. 574; Atty.-Gen. v. Poulden, 8 Simons, 472; Harford v. Browning, 1 Cox, 302; Morris v. Whitcher, 20 N. Y. 41, 45; Whitbeck v. Winne, 16 id. 532.) The decree of probate should be set aside, and a trial ordered before a jury. (Marx v. McGlynn, 88 N. Y. 370–374; 4 Redf. 455; Tyler v. Gardner, 35 N. Y. 559-597; Delafield v. Parish, 25 id.; Darry v. Briton, 1 Curtis' Eccl. 637; Nesbit v. Lockman, 34 N. Y. 67; Welsh Case, 1 Redf. 239; Vreeland v. McClelland, 1 Bradf. 420; Calhoun Case, 2 Redf. 34; Fagan v. Dugan, id. 341; McLaughlin v. McDevitt, 63 N. Y. 213-220; Hopper Case, 33 id. 620-641; Rollwagen Case, 63 id. 518; Forman v. Smith, 7 Lans. 443; Langton Case, 1 Tucker, 330.)

William N. Dykman for respondents. This court will not review the questions of fact or weigh the evidence. (In re Ross, 87 N. Y. 514; Marx v. McGlynn, 88 id. 357; Post v. Mason, 91 id. 549.) The probate of other papers as the will of Mary O'Hara is conclusive in this action that the unattested memoranda form no part thereof. (Post v. Mason, 91 N. Y. 539, 550; Colton v. Ross, 2 Paige's Ch. 396; Brady v. McCoskery, 1 N. Y. 214; Clarke v. Sawyer, 2 id. 498; Booth v. Kitchen, 7 Hun, 255; De Bussiere v. Holloday, 4 Abb. N. C. 111; T. & B. R. Co. v. B., H. T. & W. R. Co., 86 N. Y. 127.) The Surrogate's Court had before it all the questions raised here, and could have afforded the plaintiffs perfect relief. (Bellinghurst v. Vickers, 1 Phill. 187; Barton v. Robbin, 3 id. 455; Burger v. Hill, 1 Bradf. 360; In re Welsh, 1 Redf. 238; Baker's Will, 2 id. 179; Redfield's

Statement of case.

Practice [2d ed.], 229; Post v. Mason, 91 N. Y. 550.) The unattested letters were meant as admonitions merely, and lie without the province of the courts. (Lomax v. Ripley, 3 S. & G. 80; Knight v. Boughton, 11 C. & F. 513; Story's Eq. Jur., § 1069; Lewin on Trusts, § 171; Perry on Trusts, § 115; Clarke v. Leupp, 88 N. Y. 228; Rainey v. Laing, 58 Barb. 453; Foose v. Whitmore, 82 N. Y. 405.) The lack of attestation was intended to and does prevent the letters from creating a testamentary trust. (2 R. S. 63, § 40; Sheldon v. Sheldon, 1 Rob. Ecc. 81; Jackson v. Van Dusen, 5 Johns. 154; Jackson v. Holloway, 7 id. 394; Jackson v. Potter, 9 id. 312; Jackson v. Le Grange, 19 id. 368; William v. Freeman, 83 id. 569; White v. Douglass, 3 Seld. 569; Lewin on Trusts, 32; Phelps v. Robbins, 40 Conn. 273; 2 R. S. 134, §§ 6, 7; 137, §7; Perry on Trusts, § 91; Williams v. Freeman, 83 N. Y. 569.) If the donee of an absolute legacy, or devise, promises to stand as trustee, the rights of the heirs at law depend entirely on the promise. If it be lawful they can do nothing, but the promise will be enforced at the suit of the beneficiary. It is only a promise to devote the gift to unlawful purposes which will avoid the gift and promise and entitle the heir at law to take, and then he takes by descent. (Chamberlain v. Chamberlain, Freeman's Ch. 24; Devenish v. Barnes, Prec. in Ch. 3; Whitton v. Russell, 1 Atk. 448; Williams v. Fitch, 18 N. Y. 546.) The remainder of the residuary estate, if the legatees follow the unattested letters, will be divided among the incorporated charities named, or any others which they select. (Powers v. Cassidy, 79 N. Y. 602.) There being evidence to sustain the decision, it will stand. (In re Ross, 87 N. Y. 514; Marx v. McGlynn, 88 id. 367.) When the proponents proved that the testatrix had the independent legal advice of Mr. Cullen, and that the will was read to her in the presence of four disinterested witnesses, and its effect explained, they discharged the duty imposed by their intimate relations with the testatrix. (Crispell v. Dubois, 4 Barb. 393; Hindson v. Weatherill, 5 De G., M. & G. 301; Walker v. Smith, 29 Beav. 394; Nesbit v. Lockman, 34 N. Y. 167; SICKELS-VOL. L.

52

Opinion of the Court, per FINCH, J.

Post v. Mason, 91 id. 545-548.) So much of contestant's case as rests on undue influence of the residuary legatees was waived by omitting to ask a limited probate excluding the residuary clause. (Billinghurst v. Vickers, Phill. 187; Barton v. Robbins, 3 id. 455; Burger v. Hill, 1 Bradf. 360; In re Welsh, 1 Redf. 238; Baker's Will, 2 id. 179; Redfield's Pr. [2d ed.] 229; Post v. Mason, 91 N. Y. 550.) The unattested papers could not be established as part of Mrs. O'Hara's will. (Williams v. Freeman, 83 N. Y. 569.)

FINCH, J. The testatrix gave to three persons, who were her lawyer, her doctor and her priest, absolutely, but as joint tenants, the bulk of her estate. Practically she disinherited her relatives in favor of strangers, who had no claim upon her bounty except such as originated in their professional characters, and the confidence and friendship thus engendered. For this reason probate of the will was resisted. While the testatrix was shown to have been superstitious, whimsical, blindly devoted to her church and its ecclesiastics, habitually under the influence of stimulants, and seriously dependent upon the advice of those who became her residuary legatees, it is yet certain that there was no want of testamentary capacity. But although the attack failed upon that ground, the charge of undue influence was somewhat supported by the evidence relating to her character and surroundings, which made possible and tended to render probable the existence of an outside power capable of moulding her wishes to its own. The exigency demanded of the proponents some adequate and reasonable explanation of a diversion of the estate to strangers, holding the power and influence derived from confidential relations, consistent with the free action and untrammeled exercise of the testamentary intention. The explanation came. A letter of instruction, addressed to the residuary legatees, contemporaneous with the will, and dictating the purpose as well as explaining the reason of the absolute legacy, was produced upon the hearing. These written instructions demonstrated that the residuary clause was not intended by the testatrix to pass to