In re the Probate of the Will of Kaufmann , 14 A.D.2d 411 ( 1961 )

Per Curiam.

This appeal is taken by the executor, and principal beneficiary named in decedent’s will which has been denied probate after a jury trial.

The record here indicates a very careful and competent handling by the learned Surrogate of a difficult and lengthy trial, but, in our opinion, based now upon a posttrial consideration of the record as a whole, errors have crept in which were calculated to and which may have had a material influence upon the verdict of the jury.

The Surrogate, over objection, received testimony as to family relationship, property and financial transactions and record and declarations of the testator, so remote in time as to have no bearing upon the issue of undue influence affecting the testamentary act. It is well to bear in mind that undue influence to avoid a will “must be a present constraint, operating upon the mind of the testator at the time of the testamentary act.” (Gardiner v. Gardiner, 34 N. Y. 155, 163.) Also “ [t]he tendencies of juries * * * unless well and firmly guided by the surrogate, are to substitute their own notions of justice on the whole case and to correct what they regard as unfair testamentary dispositions ” (see Matter of Huber, 103 Misc. 599, 612, affd. 188 App. Div. 882). Therefore, the trial court is bound to exercise particular care to exclude remote and irrelevant testimony in a will contest case. (See, also, Matter of Caffrey, 95 Misc. 466, 468, affd. 174 App. Div. 398, affd. 221 N. Y. 486). Here, in view of the considerable evidence relating to incidents and events remote in time to the testamentary act, we are of the opinion that the Surrogate should have charged as requested that, “ it must be shown that such coercion, duress or domination was exercised over the very testamentary act itself ” (Matter of Fleischmann, 176 App. Div. 785, 786; Matter of Powers, 176 App. Div. 455; Matter of Ruef, 180 App. Div. 203, 205, affd. 223 N. Y. 582; also, Gardiner v. Gardiner, supra ; Matter of Caffrey, supra, p. 470; Matter of Allaway, 187 App. Div. 87, 88). The Surrogate did not make this point with sufficient clarity in his charge as a whole.

The Surrogate, in his instructions to the jury, made an improper reference and charge with respect to- a relationship of attorney and client between the principal beneficiary Weiss and the decedent. He charged the jury that, if it concluded that the testamentary benefit to Weiss resulted from such a relationship and if it further found that he intervened in the preparation of the propounded paper, " then a duty of explanation is imposed upon Mr. Weiss to satisfy you that the propounded paper was the free, untramnaeled and intelligent expression of the wishes and intentions of the testator. If such an explanation is called for by the proof and has not been given in the proof to satisfy you, you may find that undue influence has been established. ”

It is true as a general proposition that, upon the showing of the existence of the confidential relationship of attorney and client as between the chief beneficiary of a will and the testator, it is incumbent upon the beneficiary to come forward and show that no unfair advantage was taken of his client. It is clear, however, that such rule had no application here. In the first place, there is no evidence in the record to sustain a finding that Weiss acted as the attorney for the decedent in any matter at or around the time of the execution of the will. It is a fact that he was a licensed attorney, but he did not engage in practice as such, and all that the record shows is that he was merely an employee of the testator rather than his attorney. The testator engaged other attorneys for his legal work. Moreover, the alleged will was prepared by and the testamentary act supervised by an independent attorney retained by the testator, and, under such circumstances, it is generally not proper to place the duty of explanation upon an attorney beneficiary. (See Matter of Guidi, 259 App. Div. 652, 655, 656, affd. 284 N. Y. 680, and cases cited; also, Matter of Moskowitz, 279 App. Div. 660, affd. 303 N. Y. 992.) In any event, the burden of proof with respect to undue influence upon the whole case did not shift but remained upon the contestants. (Matter of Kindberg, 207 N. Y. 220, 227, 228; Matter of Fleischmann, 176 App. Div. 785, 786, supra.) Having knowledge of these settled principles, we think that, upon exception being taken at the close of the charge to the statement therein ‘ ‘ that there was a relationship of attorney and client, or that Walter Weiss was an attorney employed by the testator,” the Surrogate should have clarified the charge.

Finally, the verdict of the jury is against the weight of the credible evidence, and, in fact, some of us in the majority are of the opinion that upon the authority of Matter of Walther (6 N Y 2d 49) there was not sufficient evidence of undue influence to justify the submission of the question to the jury, and that the most that was shown was the existence of lawful influences arising from the claims of a close relationship which were not inconsistent with an assumption that the will expressed the voluntary intent of the testator.

Accordingly, the decree appealed from should be reversed on the law and on the facts, with costs to the appellant payable out of the estate, and a new trial directed upon the issue of alleged undue influence.