majority">The Subrogate.

On the question of capacity of the testator, at the time he executed his will, and particularly at the time he executed his codicil, it is impossible to escape the conclusion that he was perfectly sane, and capable in all respects of making his will.

The rule is well established in such cases, that the testator must, at the time of executing the will, have had sufficient capacity to comprehend the condition of Ms property, and his relation toward the persons who are or might be objects of his bounties, and the scope and bearing of the provisions of his will. (Delafield v. Parish, 35 N. Y., 9 ; Van Guysling v. Van Kuren, 35 Id., 70; Tyler v. Gardner, 35 Id., 559; Kinne v. Johnson, 60 Barb., 69.) Mere imbecility or weakness of mind however, does not incapacitate, if there be sufficient understanding to satisfy the foregoing rule.

I think there is no reason to doubt the mental capacity of the testator to make the will in question.

As to alleged undue influence, the rule is well stated in Gardiner v. Gardiner (34 N. Y., 155), that it must be made to appear that the importunity or influence was such as to deprive the testator, at the time, of the free exercise of his will, and such undue influence must be exercised in respect to the very act, and the act must be proved; it will not be inferred from opportunity and interest. (Seguine v. Seguine, 3 Keyes, 663; Kinne v. Johnson, 60 Barb., 69; Van Hanswyck v. Wiese, 44 Id,, 494.)

In this case, there seems to be nothing that rises to the dignity of proof, showing any such influence in procuring the will in question. All there is that suggests *388suspicion, is the fact that he neglected to make provision for his daughters of his first and divorced wife, with whom they consorted, and particularly Mrs. Wade, who it appears offended him in respect to his property in her possession, as he claimed. Notwithstanding, there seems proof of reconciliation between them, before he executed the codicil.

The only question remaining for determination in this matter is the effect upon the will and codicil of the trust deed to Mr. Gushing, executed by the testator, as of March 26th, 1875.

The testimony of Mr. Ooit shows that the codicil and the trust deed were both under consideration at the same time; and sufficient evidence is given by him to show that they were probably intended to be executed at the same time. It is therefore not probable that they were intended to be substantially hostile to each other, and it is difficult to conceive that the execution of the codicil, which was a republication of the will, except as modified by it, was designed to be nullified by an instrument intended to be executed at the same time, but which, for sufficient reasons, failed to be executed, until a few days subsequent. Indeed, these facts seem to indicate strongly an intention on the part of the testator and grantor to make them substantially harmonious; and so we are left to determine that question upon the terms of the instrument, and upon the fact of their consideration at the same time, and a,n apparent intention that they were to be executed at the same time.

By the statute (2 Rev. Stat, 65, section 47), it is provided that a conveyance, settlement deed, or other act of a testator, by which his estate, or interest in property previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but such *389devise or bequest shall pass to the devisee or legatee the actual estate, or interest of the testator which would otherwise descend to his heirs, or pass to his next of kin, unless, in the instrument by which such alteration is made, the intention is declared that it shall operate as a revocation of such previous devise or bequest; and by section 48, it is provided, that if the provisions of the instrument by which such alteration is made are inconsistent with the terms or the nature of such previous, devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition not be performed or such contingency did not happen.

An examination of the will and codicil, with the provisions contained in the trust deed, shows substantial conformity in their terms and provisions, and if they were intended to be executed at the same time, and drawn for that purpose, it would seem that the trust deed was not intended to be a revocation of the will and codicil.

In Vreeland v. McClelland (1 Bradf., 417), the learned. Surrogate held that a conveyance of all the property of the decedent, on the same day that he had made Ms will, did not revoke the will; and says, “ it cannot be seriously contended that a will and a deed executed almost, if not quite, simultaneously, as to their general purport in harmony with each other, so that they may fairly be considered as a part of the same transaction, are, notwithstanding, to be construed in such a way that the deed is to nullify the will on the ground that it was an intention to revoke a solemn act just consummated a few minutes before ; the reasonable conclusion would be just the other way, namely, that instead of contemplating a revocation of the will, giving the estate after his death, by a trust deed assuring tbe same estate to the grantee, on the same contingency, the instruments, *390if valid, were both intended together to be a complete and effectual disposition of the decedent’s entire property, by a double mode of assurance.”

It is undoubtedly true, and well settled by authority, that where a testator has devised specific property, and afterwards sells or disposes of the same property, this amounts to a revocation of such devise or legacy. (Redfield, Surr. Pr., 93 ; Herrington v. Budd, 5 Denio, 321.)

The language of that decision, at page 323 is, “Any alteration of the estate, by the testator, or in his interest, or any modification of it, which converts it into a different estate from the one the testator made at the time of the devise, even though the testator took back the estate in an altered condition by the same instrument, is a revocation of the will or devise.” (See McNaughton v. McNaughton, 34 N. Y., 201, Barstow v. Goodwin 2 Bradf., 413.)

If the instrument or trust deed in question had not been contemplated at the time when the codicil was executed or intended to be a part of the transaction, under the 47th section of the statute above cited, the testator’s interest in his property was not wholly divested by the trust deed, and there is nothing in the instrument declaring his intention to revoke his will or codicil, and it cannot be said, under the 48th section, that the instrument is wholly inconsistent with the terms and nature of his previous devise.

The will and codicil in question took effect at the decease of the testator, and covered in terms all the property owned at the time of his decease, while the deed takes effect from the time of its delivery, and cannot be held to cover any estate subsequently acquired.

it is true that the trust deed in question contains this clause: “Also all my right, title, interest, and claim, either at law or in equity, in or to all other pro*391perty which may now or hereafter be held and possessed for me by any other person or persons whatsoever.’7 The other property conveyed by this provision of the deed is the property alleged to be in the hands and possession of Mr. Cushing, the grantee, and therein-after held by him as the agent of the grantor.

The testimony shows that a considerable quantity of furniture and household goods was, subsequent to the execution of the trust deed, purchased by the testator, which could not pass by the deed, but is covered by the will and codicil, and whatever may be the ultimate adjudication as to the effect of the trust deed upon the will and codicil, or to the property owned at the time such deed was executed and delivered, it is clear that after acquired property is disposed of by the will, the trust deed should not for that reason be held to revoke the will and codicil, and they should not be admitted to probate.

It is not necessary to determine at this stage of the proceedings the question whether the will and codicil or trust deed contained provisions in violation of the statute against the suspension of the absolute ownership, or the power of alienation of property for more than two lives in being at the death of the testator, for if such be the case it does not constitute an objection to the probate of the will.

If any ulterior trust is bad for the reasons suggested, it may be dropped, allowing the primary provisions to stand and be enforced. (Harrison v. Harrison, 36 Id., 543; Burrill v. Boardman, 43 Id., 254.)

Decree admitting the will and codicil to probate accordingly.

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