Statement of case. and strengthened by one which follows. The two clauses taken together result in an admission that the money was loaned for the benefit and on the credit of her separate estate, and that she "hereby" charges her "said " separate estate with the payment of the sum. There is still no express covenant to pay. Although Mrs. Austin had other separate property, as the complaint avers, yet the natural construction of her admission. is that $1,200 was loaned to her, not on her personal credit, but on the credit of her separate estate, which said separate estate she hereby, that is, by the execution of the mortgage, charges with the payment. The charge is thus limited to so much of her separate estate as is described in the mortgage, as that and that only is what hy the instrument is made liable for the debt. But if construed more broadly it is still the case of a charge created, without an express personal covenant to pay. It still imports that a specific estate or property was to be debtor for the sum, and not the owner personally and irrespective of such property. (Hone v. Fisher, 2 Barb. Ch. 559; Gaylord v. Knapp, 15 Hun, 87.) It would be easy to infer or imply a promise from what is said; but precisely that is what the statute forbids, and we must obey it. The General Term was right in saying that there was no express covenant. The judgment should be affirmed, with costs. All concur. In the Matter of the Probate of the Will of ELIZA M. SMITH, deceased. The fact that the beneficiary was the attorney of the decedent does not alone create a presumption that a testamentary gift was procured by fraud or undue influence. It seems, however, that when a person of advanced years and infirm, mentally and physically, has made his attorney the principal beneficiary, and it appears that this was contrary to previously expressed testamentary intention, that the attorney was the draftsman of the will and took an 77 AD2147 Statement of case. active part in procuring its execution, and that the testator acted without independent advice, the burden is imposed upon the attorney of satisfying the court that the will was the free, untrammeled, intelligent expression of the intention of the testator. In proceedings for the probate of a will the executor who presented the will for probate, and who was the principal legatee, after proving the loss of a former will, drawn by him, and executed by the testatrix, was permitted to testify to its contents, and was also allowed, after testifying that he had an interview with the decedent, to testify that a memorandum produced was made by him at the house of the testatrix, at the time of the interview, and that from it another prior will was drawn by him. Held error; that the evidence was "concerning a personal transaction or communication between the witness and the deceased" within the meaning of section 829 of the Code of Civil Procedure. The probate was opposed by one who was a stranger in blood to the testatrix, but who claimed as a legatee under former wills executed by her. Held, that he was a person deriving an interest under the deceased within the meaning of said section. Under the provision of the Code of Civil Procedure (§ 2545), declaring that no decree or order of a surrogate shall be reversed for error in admitting or rejecting evidence “unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby," when incompetent evidence has been received, or competent evidence rejected, and it appears that the evidence was important and material, and the court of review cannot say that, notwithstanding the error, the judgment is right, or, if it entertains a reasonable doubt, a case is presented where the party excepting was "necessarily prejudiced," and the error requires a reversal of the judgment. (Argued March 19, 1884; decided April 15, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 23, 1883, which affirmed a decree of the surrogate of Ulster county, admitting to probate the will of Eliza M. Smith, deceased. The proponent, William Lawton, was the chief beneficiary under the will of September 13, 1880, propounded for probate. He was a lawyer, he drew the will, and had been the legal adviser of the decedent, for whom he had drawn several wills prior to the one in question. The will was drawn and executed on the day of its date, during the last sickness of the testatrix, who died five days thereafter. She had no heirs or Statement of case. next of kin, and at the time of her death was more than seventy-five years of age. The probate of the will was contested by Eliza J. Hamilton on the ground of the incapacity of the testatrix and of fraud and undue influence. The contestant was a legatee in three wills executed by the testatrix, the first dated February 13, 1878, the second July 13, 1880, and the third July 18, 1880. By the first and second wills she was made residuary legatee, by the third she was given a legacy of $3,000, and by the same will other legacies to the amount of $2,500, the proponent was made residuary legatee. The wills of July 13, 1880, and July 18, 1880, were drawn by the proponent. By the will in controversy the testatrix gave to St. John's Church, Kingston, a legacy of $500; to Mrs. Josephine Peters, $500; to George L. Lawton, the son of proponent, $2,000; to Walter S. Hamilton, her stock in the Lake Shore railroad; and to the proponent (whom she made executor) the residue of her estate. The contestant on the hearing, for the purpose of establishing the incapacity of the testatrix to make the will in question, called two physicians who had attended the testatrix professionally during her last sickness, who were permitted, against the objection of the proponent, to express an opinion in respect to the mental capacity of the testatrix, founded upon their observation of the testatrix during her illness, and also to state facts of which they became cognizant in their professional capacity, tending to prove that the testatrix was non compos and incapable of making a will. There was other evidence bearing in the same direction. The evidence on the part of the contestant was controverted by evidence on the part of the proponent, tending to sustain the claim on his part that the testatrix, when the will was made, was of sound and disposing mind and memory. The charge of undue influence rested for its support upon the relation between the testatrix and the proponent, the change of testamentary intention indicated by a comparison of the will in controversy with the prior wills, and various facts, declarations and circumstances proved on the part of the contestants. Statement of case. The proponent, to rebut the charge of undue influence, produced a will of the decedent, drawn by her, and executed in 1870, by which she gave to the proponent and his family substantially her whole estate; also a will dated August 10, 1880, but which in part was drawn and executed September 10, 1880, containing substantially the same provisions as the will in question, but which, having been witnessed by the proponent, the principal beneficiary, was superseded by the new will to obviate this objection. The proponent was permitted, against the abjection of the contestant, to testify to the contents of a last will drawn by him and executed by the decedent, about twenty years prior to her death, whereby she gave her estate to a child of proponent, now deceased. He was also permitted to testify, under objection, that the will of September 10, 1880, was drawn from a memorandum made by him September 10, 1880, at the house where decedent resided, with a view to the will executed on that day. The objection to this and the evidence as to the contents of the last will was put upon the ground that the proponent was an incompetent witness to prove the facts under section 829 of the Code. There were other objections of the same character to other evidence given by the proponent. John E. Van Etten for appellant. Opinions of subscribing witnesses are estimated according to the means of information possessed by them. (Swenarton v. Hancock, 9 Abb. N. C. 338, 340, 343; Platt v. Platt, 2 T. & C. 40.) The religious waverings of the testatrix indicated aberration of mind. (Lansing v. Russell, 13 Barb. 524.) A party who offers an instrument for probate as a will, especially when prepared by himself, must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. (Rollwagen v. Rollwagen, 63 N. Y. 517, 518, 519; Hegarty v. King, L. R., 5 Ireland, 249; Childrens, etc., v. Loveridge, 70 N. Y. 309; Maing v. Silter, 3 Bradf. 133; Abbott's Trial Evidence, 114; Delafield v. Parish, 25 N. Y. 9, 30, 34; Redfield's Am. Cases on Law of Wills, 4; Kingsley v. Blanchard, Statement of case. T 66 Barb. 317; Lake v. Raney, 33 id. 49; Platt v. Platt, 2 T. & C. 25, 40; Tyler v. Gardiner, 35 N. Y. 594; McLaughlin v. McDevitt, 63 id. 213; Rollwagen v. Rollwagen, id. 517, 518; Nesbit v. Lockman, 34 id. 167; Sears v. Shafer, 6 id. 268; Lansing v. Russell, 13 Barb. 510; Whitehead v. Kennedy, 7 Hun, 230; Sears v. Shafer, 1 Barb. 408; Brock v. Barns, 40 id. 521; Vreeland v. McClelland, 1 Bradf. Surr. 393; Platt v. Platt, 2 T. & C. 25, 40; Swenarton v. Hancock, 9 Abb. N. C. 327.) Undue influence may be found when any relation of mutual confidence exists between the parties, such as attorney and client. (Nesbit v. Lockman, 34 N. Y. 167; Sears v. Shafer, 6 id. 268; Whitehead v. Winterton, 7 Hun, 230; Brock v. Barns, 40 Barb. 521; Huguenin v. Basely, 14 Ves. 273; Ford v. Hennessy, 70 Mo. 580.) A sudden change - a sudden revolution of intention in a will, originating with the chief beneficiary, calls for close scrutiny, and direct evidence of fraud and undue influence is unnecessary. (Swenarton v. Hancock, 9 Abb. N. C. 327, 362, 363; Lansing v. Russell, 13 Barb. 522; Tyler v. Gardiner, 35 N. Y. 559; Delafield v. Parish, 25 id. 35; McLaughlin v. McDevitt, 63 id. 213; Rollwagen v. Rollwagen, id. 504.) The surrogate erred in discarding the testimony of the physi cians. (Pierson v. People, 79 N. Y. 424; Edington v. Ætna L. Ins. Co., 77 id. 564, 569; Staunton v. Parker, 10 Hun, 55; Rollwagen v. Rollwagen, 63 N. Y. 510; Swenarton v. Hancock, 9 Abb. N. C. 351; Grattan v. Met. L. Ins. Co., 80 N. Y. 281; Steele v. Ward, 30 Hun, 562; 77 N. Y. 564; 19 Hun, 555; Templeton v. People, 3 id. 357.) The true test of testamentary capacity is the competency of the testator to understand and comprehend the act in relation to his property and the objects of his bounty. (Delafield v. Parish, 25 N. Y. 29; Swenarton v. Hancock, 9 Abb. N. C. 327.) It was error to allow the proponent to testify concerning personal transactions and communications between himself and the deceased. (Code of Pro., § 829; Pease v. Barnett, 30 Hun, 525; Steele v. Ward, id. 555, 560.) In an appeal from a surrogate's decree upon the probate of a will, the hearing is |