PORTER, J.

There is an almost wearisome monotony in the conformity of the facts developed on the hearing, with the familiar and recognized indicia of contrivance and undue influence. There are few of the reported cases, in which wills have been condemned, presenting such a concurrence of circumstances unfavorable to the establishment of the instrument. If they were susceptible of contradiction or explanation, the sources of proof were abundant. The respondent was a competent witness. Most of the material facts were within her personal knowledge. She was a prominent actor in all that related to the will, and in the series of transactions which led to so complete a revolution of intention on the part of the testatrix. She was surrounded by a numerous household; the important events were of recent occurrence, and they transpired at her own residence. When we find the party, whose right and interest it was to countervail the force of the facts by evidence, content to leave them unrebutted and unexplained, and to abide by the conclusions to which they so clearly tend, we have nothing to do but to draw the inevitable inference, and, applying the settled rules of law, to sustain the rejection of the will. It may be that the whole truth of the case is not before us; that facts exist, which, if proved, would relieve it from some of its unfavorable aspects; but we are bound to take the evidence as we find it, and to give it effect in accordance with our clear convictions.

It will facilitate a consideration of the legal questions involved, to precede it with a condensed analysis of the more material facts, grouped with reference, not merely to the order of time, but also to their mutual dependence and relation.

The property of the testatrix was mainly derived from her children, by voluntary and equal gift of their shares in their paternal inheritance. That her ultimate estate came to be so considerable, was mainly due to the fidelity and care of her son David, who relinquished a profitable business, at the age of thirty-three, to assume the management of her property; who devoted himself faithfully to that object, without recompense, until he was forty-six years old; and who was then ignominiously dismissed by his mother, without cause, through the active and controlling influence of a younger sister, who had recently become a member of the household. He had been educated to a profession which he had never practiced; had married, when he had just expectations of a liberal provision from his mother's estate; and, so far as the evidence discloses, he had, at no time, been wanting in filial duty or affection, or received from her a mark of displeasure or unkindness down to the hour when, by a letter written by her, corrected by his sister, and delivered by a messenger, all being under the same roof, he was suddenly ordered to leave her house.

Harry Beeckman was an orphan boy of thirteen; an inmate of the family, and dependent upon the bounty of his grandmother, only because she had been the donee of his mother's inheritance.

Mrs. Tyler was the only member of the family, who, independent of the testatrix, had a large property in her own right. She left her father's house the year he died, and returned home at a time when her mother bore the fatal marks of organic diseases, which, within a twelvemonth, resulted in death. The daughter had been favored by circumstances gratifying to a mother's pride, and giving prestige to her name. She was a lady of intelligence and culture; her manners were engaging and attractive; she wrote with facility and grace; she was assiduous in her attentions to her mother, and soon brought her to feel, as she declared in one of her letters, a copy of which was preserved and produced by Mrs. Tyler on the hearing, not only that the society of her daughter was agreeable to her, but that she needed her "sympathy and assistance." This needful sympathy and assistance do not seem to have been withheld; and from the time of the daughter's arrival, their views became more and more concurrent, until they entirely harmonized. The influence of Mrs. Tyler soon became apparent in the family, and in all matters of importance it seems to have been uniformly effective and controlling. She had seasonably notified her brother, in advance, that she intended to return, and that he must seek other quarters for himself, his wife and his children. To the latter proposition he did not accede, and his answer, referring that question to his mother, in coöperation with other causes, seems to have produced toward him a feeling of unkindness on her part, in which, soon after she became an inmate of the house, her mother was brought to sympathize. It is true that, when the request to the latter to send David away was preferred, in the first instance by one of Mrs. Tyler's children, she promptly refused to comply, on the ground that he was her child; but this objection was readily overcome, and she was soon afterward induced to yield to the request, and to dispatch a letter to the son, in which this parental relation seems to have been entirely overlooked. Indeed, in the subsequent letters, the existence of this involuntary family tie is alluded to in terms which indicate an impression on her part that it was matter of condescension to acknowledge it, even for the purpose of invidious comparison between him and her daughter.

In the brief period which intervened between the return of the sister and the expulsion of the brother, the mother was brought into a state of singular and causeless alarm as to the condition and safety of her property; and she was led, in the subsequent letters, of which Mrs. Tyler's memoranda were produced on the hearing, to overwhelm him with groundless imputations of malfeasance, deception and fraud, in the performance of his duties as her gratuitous agent, and in the management of her perplexing and diversified business affairs. She was also, in some way, made to believe that he had been guilty of "some fearful proceedings" to his sister, of which the servants in the family had been eye-witnesses. Her letter shows that the servants were not her informants, and it is obvious that the reproach was wholly unmerited, as there is not a shadow of foundation for it in the evidence.

The proof leaves no room for doubt that these later letters were written with the privity of the sister, if not transcribed from her so-called memoranda. The fact is undisputed that, during most of the brief period in which these false impressions were imbibed, the mother was a confined and suffering invalid; that the son was engaged, as usual, in the management of her general business; that she was in the closest intercourse, if not under the immediate influence, of Mrs. Tyler, who was most of the time in her room; and that the latter was the only party interested in alienating the mother from the son, and the only party benefited by the testamentary changes, which she introduced these letters to explain. That her influence over her mother was active and controlling is apparent, not only from the ultimate acquiescence of the latter in her views, which were contrary to those she had previously entertained, but, also, from the significant circumstance that, though the son repeatedly called at the house of his mother, and continued to do so down to the month of May, he never found his way to her presence; that she then left home, and remained through the summer at a private boarding house in New York, Mrs. Tyler visiting her there almost daily; and that, on her return to Castleton, and the near approach of death, though the lawyer and doctor were promptly summoned, no message was sent to her only son. So far as we have the means of judging from these facts, from the memoranda produced by Mrs. Tyler, and from the singular provisions of the will, Mrs. Gardiner retained, to the hour of death, the false impression that David had deceived and defrauded her, and that he had been guilty of wrongs to his sister, too fearful to be spoken of either by him or the testatrix.

That will was made on her death-bed, in the presence and by the procurement of her daughter, and in the absence of her son and her grandson. Her clergyman opportunely called on his dying parishioner. He was excluded by the testatrix, but the execution of the will was not suspended. She had never exchanged a word on the subject with the draughtsman of the instrument, until the day of her death. She referred him to Mrs. Tyler, as the party from whom he was to take his instructions; and her inquiry on that subject shows that she did not know whether they were written or oral. She complied, however, as well as she could, with his request for personal instructions, and answered such inquiries as he felt it his duty to make. Mr. Clark had, in fact, been previously furnished with full written instructions, sent to him the day before by Mrs. Tyler, with a note bearing date three days prior to the execution of the will. They were in the handwriting of the daughter, and were of a nature which could scarcely fail to excite the surprise of one who knew the testatrix, and the situation and relations of the family. He declined to comply with Mrs. Tyler's request that he should reduce them to form, without confirmation by personal instructions from the testatrix. Though his call was on the evening first named in Mrs. Tyler's note, as that on which she wished him to bring the will for execution, she intimated that the interview he proposed with her mother would be inconvenient at that time, and deferred it until the following morning. She alone was present when that interview occurred. The inquiries made by Mr. Clark were those suggested to his mind by her written instructions. He made an appointment for the execution of the will at five o'clock in the afternoon. Before noon, Mrs. Tyler sent a messenger to his office to expedite the preparation of the instrument, and to have it brought in haste for execution. She provided the attesting witnesses; was present at the reading and signing, and rendered such assistance as the prostrate condition of her mother required.

On the day when these occurrences transpired, Mrs. Gardiner was exhausted, vomiting, weak, signifying her wishes and assent, sometimes by words and sometimes by nods. The gentleman who drew the will conducted the matter with great propriety, and, perhaps, with more scrupulous caution than was entirely agreeable, either to the mother or to the daughter. He seemed impressed with the idea that the provisions he was directed to insert called for some explanation. He pushed his inquiries as far as he could, without apparent incivility. In relation to the gift by the testatrix to her son, of certain claims and advances, he ascertained that they rested on no written evidence, and that she could give him no specific information; but the general result of his interviews with the mother and daughter was to leave him under the mistaken impression that such claims really existed. The idea that Mrs. Gardiner had made advances toward the purchase of David's farm, seems never to have been suggested in any quarter, until it appeared in Mrs. Tyler's instructions. The mother, of course, knew that she had never made any such advances; and it is difficult to resist the conclusion that she was made to believe that her son had bought the farm with money embezzled from her. The insertion of the provision, utterly groundless as it was, could serve no practical purpose, except to give to the will a seeming color of equality. Mr. Clark, also, very properly, deemed it his duty to inquire as to the prospect of the restitution by the government to Mrs. Tyler, which was to be the condition of the enjoyment by David Gardiner of his inheritance. Neither of the ladies seemed able to furnish any information on this point. That the idea originated with Mrs. Tyler is shown, not only by the written instructions, but also by the direct and affirmative evidence of one of the subscribing witnesses. Mr. Clark felt bound also to inquire as to the grounds on which she expected to obtain further damages against the city of New York, in addition to those already awarded her, for opening certain streets. Having been her attorney and counsel in that matter, he, of course, recognized the absurdity of such a claim. She replied with a vague intimation that she had been assured by her friends that she could obtain such additional damages. Who these friends were, does not appear, otherwise than by inference. Her son had advised her that such a suit would be hopeless; and the only person by whom it seems to have been regarded with favor was Mrs. Tyler, who made it the staple of one of her instructions, and certified the claim to be just. She probably so supposed, as she directed the insertion of the bequest in the will; but, in the light of the evidence, it was valueless, except as evincing a recognition of the propriety of introducing one provision into the instrument, in which there should be some regard to apparent equality in distribution.

The testatrix made the will under false impressions, as to the relative circumstances of her son and daughter. She had enlarged on the poverty of the latter, in conversation during the summer, with the two ladies who were called by the respondent in support of the will. She talked to Mrs. Stryker in relation to Mrs. Tyler and " the destruction of her property." She told Miss Cooper that " Julia was poor;" and added: "Don't think that I don't care for David, but I must take care of Julia." Mrs. Tyler, in her instructions, speaks of "the losses of property she has sustained," omitting, of course, any reference to the property she had not lost, which she, perhaps, thought inappropriate in that connection, though it is alluded to in general terms in the will afterward prepared by Mr. Clark; and Mr. Dayton, the tutor of her children, had previously heard her talking to her mother about her losses. Mrs. Gardiner, herself, seemed to feel the necessity of some apology to Mr. Clark for the singular provisions of the instrument; and his attention was arrested by the circumstance that, at the first of the two death-bed interviews, notwithstanding her distress and difficulty of articulation, "she talked for some moments about her daughter having lost her property, and her desire to provide for her, and that she trusted the others would acquiesce in it cheerfully." The apology was inserted in the will, and is the only material provision in the instrument not traceable to Mrs. Tyler's written instructions. It is difficult to attribute to any other rational cause, than Mrs. Gardiner's sense of the injustice of the will, her objection to its being read in the presence of her physician, who was to attest it; her injunction of secrecy when Mr. Clark told her that, though the precaution was not usual, he preferred that the doctor should be present when he read it; and her refusal to admit her clergyman, who happened to call as she was about to affix her signature.

Mrs. Gardiner had, undoubtedly, testable capacity at the time the instrument was executed, but she was in a condition to be peculiarly exposed to the exercise of undue influence. Until she became an invalid, she was a lady of fair intelligence, unfamiliar with business, of an affectionate and yielding disposition, fond of attention and deference, and not unconscious of the consideration to which she was entitled, in virtue of her property and position. She was more credulous than most of her sex, and repeated, from time to time, to her female friends, spiritual communications, which she supposed she had received at successive intervals from her deceased husband, son and daughter. In the later years of her life she was a severe sufferer from disease. When her daughter came home, in November, 1863, she was feeble and emaciated, and during the winter she was mostly confined, not only to her house, but to her room.

The daughter was in the prime of life. The mother was infirm of purpose, sick and old. She was soon imbued with false impressions, and brought to a condition of nervous and causeless suspicion and alarm. She expelled her son from her house, and never saw him afterward. Her subsequent communications with him were very few, very bitter, and all in writing. The letter of the 10th of February, directing him to leave, was, undoubtedly, composed by her, though corrected, if not prompted, by her daughter. It bears upon its face the evidence that she was not an easy and practiced writer. The letter of the 9th of March, and those which followed it, are in a very different style. If they were designed for future use, as evidence furnished by her, of the truth of the groundless accusations with which they abound, they were well framed for such a purpose. If they were intended to repel all possible explanation, and to cut off even the hope of any future reconciliation, they were couched in terms appropriate to that end. If they were really composed by her, it is quite apparent that, in the month which intervened between her first and second letter, she had made unexampled progress in her literary acquirements, observable alike in her style, her punctuation, and her accuracy in the use of language. They are marked, however, by no diminution of bitterness, and no observance of the usual forms of courtesy, except that when the daughter is referred to, she is spoken of in terms of almost extravagant encomium and deference. Whether the son was right in his conviction as to their authorship, to which he testified on the hearing, is only matter of inference from the production of the so-called memoranda, not shown to be in the handwriting of the mother, and from the omission of any denial by his sister, to whom he imputed the dictation of the letters.

That the death-bed disposition, by Mrs. Gardiner, of her property, was entirely opposed to her former deliberate purposes, and her convictions of equity and justice, before her faculties were impaired by disease and infirmity, is indisputably established by the will of 1858.

She was then fifty-nine years of age, and in perfect health. Her son had the same property at that time which he had at the date of the will of 1864, consisting of a farm, mortgaged for the entire purchase-money, except the $5,000 paid from his earnings in California. Her property was the same in 1858 as in 1864, except so far as its value had been augmented in the interval under his charge, and through his continued services and supervision. Her grandson, Harry Beeckman, was, at both dates, an inmate of her family, and nothing had occurred in the six years intervening to alienate the affection of the testatrix, or to add to his means or expectations.

Mrs. Tyler, at the date of the first will, was dependent on such provision as her husband might make for her, in case she survived him. When the last was made, she had a considerable estate in her own right.

By the original will, the testatrix gave the twelve acres on which she lived, and the moveables thereon, to her son. The place was subject to the Roosevelt mortgage, the payment of which was not charged on the residuary devisees, as it was in the subsequent will, when it was given to Mrs. Tyler. All the residue of her property, she gave, in equal shares, to her son, her daughter and her grandson.

The contrast between the two instruments is striking. The first makes precisely such a disposition of her property as her children would naturally expect, in view of the sources from which it was derived, the services of the son by whose care it had been preserved and augmented, and the common claims of affection and of blood. If she ever had made any advances toward the purchase of David's farm, she knew it then; for he had bought it five years before, and all that he paid toward the price was paid at that time. If she disapproved the mode in which he transacted her business, she knew it then; for he had transacted it through the preceding seven years, in the same mode, which was continued to the year of her death. If he had then rendered services worthy of special recognition in her will, the force of the claim was not diminished by six more years of similar service without recompense.

In view of all these circumstances, it is difficult to resist the conclusion that the death-bed will of 1864 was the result of the same controlling influence which led, a few months before, to the expulsion of the son from his mother's house. In the light of the surrounding and antecedent facts, the testamentary instrument carries with it its own condemnation.

The precise case is presented, in which we are legally bound to compare the provisions of the two wills. ( Delafield v. Parish, 25 N.Y., 35; Marsh v. Tyrrell, 2 Haggard, 87, 110.) In the first of these cases, a leading and controlling ground of the decision was, the hostility of the provisions of a codicil, executed by a testator in a condition of helplessness which exposed him to undue influence, to those of an antecedent will, made when he was in health, evincing deliberation and care, and free from all suspicion. The case of Marsh v. Tyrrell, which this court has repeatedly had occasion to approve, was one where the husband was the principal beneficiary under a will made by his wife, under circumstances, in many respects, similar to those which concur in the case at bar. In pronouncing the judgment of the court, Sir JOHN NICHOLL said: "In inquiring, then, into the factum of the latter will, it becomes material to examine the probability of this great change of intention, and it becomes the more necessary, if, at the time of making the disposition, the capacity was, in any degree, weakened or doubtful; still more, if the husband, in whose favor this great change is made, and who, from the relation in which he stands to the deceased, must almost necessarily have great influence and authority, should be the person originating and conducting the whole business of the new will. To examine, then, the probability of this change, it may be proper to consider the grounds and circumstances of making the first will. If they were made upon hasty, capricious, temporary considerations, the departure from it becomes less improbable; but, if made under motives long existing, and quite naturally inducing it, the adherence to it will be the more strongly presumed, and the circumstances to account for the complete revolution in her intentions will be required to be more forcible." After reviewing the particular facts, he adds: "If, then, in addition to these circumstances, first, that the disposition in the new will is highly improbable; next, that the husband had been endeavoring to get at her deeds and testamentary instruments; and further, that she was in this state of doubtful capacity; if, in addition to all this, we find that the husband, as far as the evidence goes, originates and conducts the whole business, representing, or rather misrepresenting, the previous facts, and, being present at all the material parts of the transaction, the case proceeds to the evidence of the factum under presumptions of fraud and imposition, which hardly any evidence would be sufficient to repel. It would, at least, be extremely difficult to show that she was a free, as well as a capable, testatrix; to show that she had a real, disposing, testamentary mind, and an intention to abandon all the dispositions of her former will, made so carefully and adhered to so firmly. The strong presumption would be, that, in whatever she said and did, however it might impose upon the witnesses, she was a mere instrument in the hands of her husband."

In the leading case of Blewitt v. Blewitt, the issue was as to the execution of a will, made in feeble health, by a testator sixty-nine years of age, and under circumstances which exposed him to undue influence, by a lady, who had strong claims upon his justice as well as his bounty. That case, like this, presented unfavorable features peculiar to itself; but, among those common to both, were the weakness and exhaustion of the party; the entire departure from previous testamentary dispositions; the false impressions under which the will was made; the active agency of the beneficiary in procuring it to be drawn; her presence at the testamentary act, and the absence of those who had, at least, equal claims upon the justice of the testator. The eminent jurist, by whom the opinion was delivered, after alluding to the force of the presumptions against the instrument from its hostility to previous testamentary provisions, proceeds to say: "It is difficult to conceive a case in which that presumption would exist with more force than in the present, looking to the former wills, to the condition of the deceased, to the parties in whose favor the codicil was to be made, being at the time about the deceased, and to the absence of other parties, to whose prejudice these alterations were to operate. In such a case, the fullest proof of capacity, equal, not merely to some testamentary act, but to this important revocation of former dispositions, and to a new direction, given to a large portion of his property, should be clearly established; and, in this instance, the condition of the deceased, the possession of him by the parties to be benefited, and the false impressions made upon his mind, have, also, a strong appearance of fraudulent circumvention, requiring the case to be proved by the most satisfactory evidence." (4 Haggard, 463.)

The application of this recognized legal test to the present will, upon the state of facts disclosed by the evidence, raises a strong presumption of undue influence, which the proponent's proof wholly fails to repel. The original will, undoubtedly, expressed the intelligent and deliberate purposes of the testatrix. The disposition which it made of her property was, obviously, equitable, rational and just. Its language is simple and direct. The reader is not left in doubt as to the purpose or the motives of the testatrix. It contains no false suggestions, no substantial gifts to one, in the form of seeming gifts to another, no apology for its own provisions, and no admonition to filial acquiescence in parental injustice. It commits the charge of the grandson's estate, during the period of nonage, to the son, who had so faithfully and successfully managed her own, and it does not name a stranger as executor, to the exclusion of her own family. So far as the evidence shows, this instrument, executed in July, 1858, was in existence in May, 1864, and remained, as an authentic and unrevoked expression of her deliberate will, until the very day of her death.

The subsequent will bears upon its face the marks of indirection, as well as of singular contrivance and forethought. It contains peculiar and unusual provisions. It locks up the property devised to the son, and commits the key to the custody of his younger sister, whose hostility was well known to the testatrix. It anticipates and provides for the unusual contingency of a possible removal of either the son or the daughter out of the United States; and, to guard against any fraud upon the intent of the provision, it adds that such removal must be for a permanent residence. The gift of the homestead to the daughter is simple and absolute. The gift of the residue of the estate, real and personal, is trammeled with five " express conditions;" and it will be seen that they were conditions which could not be complied with, except by such of the devisees as might be fortunate enough to have ample means for that purpose at their command. A novel penalty is imposed upon the son for supposed misconduct of the federal government, in respect to which no blame is imputed to him. The entire income of the share, of which he is the ostensible devisee, is given for life to his sister, to her own use and benefit, unless the damages which she is alleged to have sustained on her James river property, and her Point Comfort property, be reimbursed by the federal government; but the theory of reimbursement is not to be extended to her. She is, from that time, to receive his income no longer, but what she has theretofore received she is to retain in her own right.

Reading the will in the light of the evidence, we find that, by the changes it effects in the testamentary dispositions, a large share of the inheritance, which would otherwise have gone to the grandson, is transferred to the daughter, who is substituted as trustee in place of the son, and she is to receive his income during his minority, and to apply so much of it as may be necessary to his maintenance, education and support. The devise to the grandson is fettered with a limitation over to her and her brother, in case either of his death before he reaches the age of twenty-one, whether with or without children, or of his death afterward, without children, whether he die married or unmarried. It is scarcely necessary to add, that there was no such provision in the original will, and that it had its origin in a special clause in Mrs. Tyler's written instructions. In the light of the evidence, it also becomes manifest that, of six principal clauses in the will, three have no practical operation or apparent purpose, unless by way of palliation or apology for the provisions of the other three. It is due to the draughtsman to bear in mind that the limitation to the term of Mrs. Tyler's life, of the gift to her of the income of her brother, was a departure from her instructions, and was only assented to by the mother, on his suggestion that in the original form it would be illegal.

A still more striking illustration of the diplomatic indirection, which marks the will, is found in the clause charging, personally, upon the residuary devisees, the payment of all the debts of the testatrix. Even if we dismiss from our view the undisputed fact, that she held the bulk of the property by free gift from her children, it is not easy to believe that a mother, with an intelligent comprehension of the effect of such a provision, would personally charge her only son with the payment of three-eighths of her mortgages, and other debts, amounting to nearly $50,000, knowing that his property consisted only of a small farm, mortgaged for the greater portion of the purchase-money; that, by another provision of her will, he was cut off, in all human probability for life, from the income of his inheritance; and that, by an additional clause, she had prohibited any partition or sale of the property devised, without his sister's consent, unless on the condition of his becoming a voluntary exile from his country. It is equally difficult to suppose that the effect of the provision was not comprehended by the writer of the instructions, who, originally, proposed to make it still more stringent by directing the payment of such debts, whether principal or interest, " as they fall due;" a clause so unreasonable, under the circumstances, that the draughtsman took the responsibility of omitting it in preparing the will for execution. The payment, however, of three-eighths of these debts is made an "express condition" of the ultimate benefit of the devise to the son, after the death of the sister. So far as the proof enables us to judge, he was without the means to make such payment. The property nominally devised to him was so locked up, in pursuance of Mrs. Tyler's instructions, that he could not raise the amount either by sale or by mortgage of his interest; and the practical effect would be, in the ordinary course, a forced sale of the property, Mrs. Tyler being the only member of the family whose private fortune would enable her to become the purchaser; and who, irrespective of this resource, was provided with ample means, under the express provisions of the will. It is incredible that the mother could have had an intelligent and deliberate purpose to put her son so completely in the power of a sister, who entertained unfriendly feelings toward him, and who was not merely succeeding to the principal portion of his birthright, but succeeding to it through a title derived from him, by free gift. Such a purpose, on the part of the mother, would have been, not only ungrateful, but unnatural. If it originated, however, with the daughter, there was much to palliate it. Her relations to her brother were not such as to lead her to appreciate its injustice. She was under no special obligation to him; and it was natural for her to feel that her own interests, and those of her children, were those in which she was most nearly concerned. She had the right to exercise the influence springing from family ties, services, affection or gratitude, to the extent even of importunity, without subjecting herself to just censure or reproach. So, in regard to the orphan son of her dead sister, it was very natural for Mrs. Tyler to feel that she had a stronger claim to inherit his estate, than his future wife, or his children born before he arrived at the age of twenty-one; but it is impossible to believe that Mrs. Gardiner, in disposing, at her own death, of a property, for a large part of which she was indebted to the bounty of a deceased daughter, could, seriously, think it right to tie it up in the hands of that daughter's only son, to fetter his power of alienation, either by deed or by will, and to affix a limitation for the benefit of her own heirs, to the exclusion of his wife and children. If the last will is established, it must be by closing our eyes to the obvious legal effect of facts established by undisputed evidence, and falling back on the arbitrary maxim, sic volo sic jubeo. This we cannot do without subverting settled rules of law, which we are bound to maintain and enforce.

Another significant and controlling feature of the case, in view of the helpless and dying condition of Mrs. Gardiner, is the fact that the written instructions for the will were prepared by the principal beneficiary The rule of law on this subject is well-settled. It has been repeatedly announced by this court, and perhaps nowhere with more precision and directness than by the present Chief Judge, in pronouncing judgment on the will of Henry Parish. "The maxim, qui se scripsit hæredem," said the learned judge, "has imposed by law an additional burden on those claiming to establish a will, under circumstances which call for the application of that rule; and the court, in such a case, justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testimony in the present case. The two codicils under consideration were exclusively for the benefit of Mrs. Parish, with the exception of the charitable gifts; and although they were not actually written by her, yet they were drawn up at her suggestion, upon her procurement, and by counsel employed by her. She prepared and gave the instructions for them, and, in judgment of law, they must be regarded as written by herself. ` Facit per alium, facit per se.'" ( Delafield v. Parish, 25 N.Y., 35.)

In this case there is no proof or pretense that the instructions were either written or dictated by the testatrix. It appears, from the testimony of the draughtsman, that Mrs. Gardiner expected them to proceed from Mrs. Tyler, and not from herself; and that she did not know, on the day the will was executed, whether such instructions were written or oral, though it is proved that they were written by the daughter two days before she transmitted them to the draughtsman. The use in the instructions of the mother's name is not evidence that they were dictated by her; and in the absence of such proof, upon the state of facts here shown, the legal presumption is that they were not so dictated, and that they were prepared by the party in whose handwriting they appear. ( Ingram v. Wyatt, 1 Haggard, 384, 439; Croft v. Day, 1 Curteis, 853, 856; Baker v. Batt, id., 125.) In the case first cited, it was objected that the rule was severe in its operation, as the party who wrote the instructions could not testify; but the court said: "They are in the handwriting of Richard Wyatt, the father, a quarter as unfavorable, perhaps more so, as feeling a stronger interest than even Henry Wyatt himself. It has been said that Richard Wyatt was incapacitated by the state of his faculties from giving evidence; that he could not be examined; that he might have proved receiving these instructions from the deceased himself. That is mere conjecture, which cannot compensate for proof. If the evidence is by accident defective, the misfortune, especially in such a case as the present, must fall upon the party upon whom the burden of proof lies." (1 Haggard, 439.) In the present case, even this consideration cannot be urged. Mrs. Tyler was at liberty to testify, but chose not to be examined, and to leave the matter as it stood.

Keeping in view, as we must, the dying condition of Mrs. Gardiner, at the time the transaction in question occurred, the force of the fact that the beneficiary wrote the instructions and originated the will is not necessarily overcome by the circumstance that they were afterward accepted by the testatrix, and that she assented to the will in which they were embodied. The observations, in one of the opinions delivered in the Parish case, are specially pertinent to this point. "The whole evidence of the case," says the learned judge, "places him in a position, where an enfeebled intellect, though far from losing its intelligence and its capacity to do ordinary business, may well be presumed unequal to resisting reiterated importunities from one in her relative position. It would seem plain that she could have exercised an influence in regard to this codicil which would not leave him to the exercise of his own free will. Are there any circumstances in this case to show that she did so? Or, does it appear that, having the power, she gained a victory over her naturally excited feelings, and magnanimously forebore to use it? The whole burden of this codicil is for her benefit. Supposing that it was made under her control, se scripsit hæredem; nor, upon this supposition, would Mr. Lord's presence, and the fact that Mr. Parish assented intelligently, and deliberately, and in detail, to the provisions of the instrument, relieve her from that position; for the influence was easily exercised, when once its subject had been brought to submit to it, and in a way not at all suspicious, a way not likely to be observed by one who had no idea of its existence." ( 25 N.Y., 92.)

Thus Swinburne says, in commenting upon the effect of a testator's assent under similar circumstances: "It is to be presumed that the testator did answer yea, rather to deliver himself from the importunity of the defendant, than upon devotion or intent to make his will, because it is, for the most part, painful and grievous to those that be in that extremity to speak or be demanded any question, and, therefore, are ready to answer any question, almost, that they may be quiet; which advantage, crafty and covetous persons, knowing very well, are then most busy, and do labor with tooth and nail to procure the sick person to yield to their demands, when they perceive he cannot easily resist them, neither hath time to revoke the same afterward, being then passing to another world. And, therefore, worthily, and with great equity, is that to be deemed for no testament, when the sick person answereth yea, the interrogation being made by a suspected person, as well in respect of presumption of deceit in the one, as of defect of meaning of making a testament in the other. And this is true, especially when there is a former testament; for that is not to be revoked by a second testament, made at the interrogation of another in manner aforesaid." In a subsequent passage, he adds: "But, what if a will be brought to the sick man, which, being read over in his hearing, and he demanded whether the same shall stand for his will and testament, answereth yea, and it doth not appear whether the same was written and prepared by the direction of the sick man, or else of his kinsfolk and friends, whether it is to be presumed to have been prepared by his direction or by theirs? It seemeth, by the sick man, in favor of the testament; but, when it appeareth, indeed, to have been made ready by others, then, albeit the testator, being interrogated, do answer as before, it is presumed that the question was made by the suggestion or onsetting of the executor, and so the testament is not good." (Swinburne on Wills, part 2, § 25.)

These are the old landmarks of the law, and the judges should be the last to remove them. There is nothing in the present case to call for a departure from well-established rules, founded in plain principles of justice, and essential to the protection of rights and the prevention of fraud. They are tributary, alike to the security of the living, the repose of the dying, and the harmony of the family relation.

So far as the proof discloses, the first connection of the testatrix with this will was within eight hours of death. Its essential provisions are directly traceable to the written instructions, which were prepared three days before by the daughter, who thus secured to herself the bulk of the mother's estate.

When the principal beneficiary under a will, prepared for execution by a party worn down by disease and close upon the verge of death, assumes the responsibility of initiating it, of preparing formal instructions, of employing the draughtsman, of selecting the witnesses, of being present at every stage of the proceedings, and of excluding those to whose inheritance a new direction is given, it behooves such beneficiary to be provided with evidence that the instrument expresses the honest and spontaneous purposes of the person who is called upon, at such a time, to reverse the provisions of a previous testamentary disposition, made in health and strength, in favor of those having clear claims upon the justice and bounty of the testator. ( Delafield v. Parish, 25 N.Y., 35; Lee v. Dill, 11 Abb., 214; Lake v. Ranney, 33 Barb., 49; Bergen v. Udall, 31 Barb., 9, 25; Crispell v. Dubois, 4 Barb., 397; Marsh v. Tyrrell, 2 Haggard, 87, 110; Barry v. Butlin, 1 Curteis, 638.)

The studied privacy attending the preparation and execution of the will, the constant presence and vigilance of the principal beneficiary, and her omission to advise the son and the grandson of her mother's approach to death, are familiar and marked indicia of the exercise of undue influence, under circumstances like those developed by the evidence. ( Crispell v. Dubois, 4 Barb., 397; Delafield v. Parish, 25 N.Y., 41, 42.) Swinburne, with his usual quaint and pithy directness, speaks thus of the inferences deducible from this species of evidence: "If the wife, being made executrix, or any other person benefited by the testament, understanding that the testator is about to alter his will, will not suffer his friends to come unto him, pretending, peradventure, that he is fast asleep, or in a slumber, or the physician gave in charge that none should come to him, or pretending some other excuse, or else, all excuses set apart, do, for charity's sake, shut them forth of the doors; in these cases, the testament is void, in detestation of such odious shifts aud practices." (Swinburne on Wills, part 7, § 18.)

The will was made by the testatrix under two false impressions, which went to the very root of its provisions; one, that her daughter was poor, and the other, that her son was faithless and dishonest, and that he had purchased his farm with her money. That these were the operative inducements, is assumed, on the part of the proponent, as well as the contestants. The influence of the first is apparent upon the face of the will, and is established by extrinsic evidence elicited from the witnesses called to support it. The influence of the second is not only shown by the provisions of the will, but by the letters introduced by the daughter to account for them. In view of the prostrate and dying condition of the mother, of the fact that the will originated in the instructions written by the daughter, and of the various indicia of fraud which surround the whole transaction, the case is within the principle settled by the successive decisions of the Chancellor, of the Supreme Court, and of this court in the case of Lansing v. Russell. It is to be regretted that the very able opinion delivered by Judge MARVIN in this court is unreported, but it demonstrated, with irresistible clearness and force, the correctness of the rule settled in the courts below; that, when the beneficiary is the active agent in procuring the execution, by one in extremis, of an instrument, disturbing dispositions previously settled, and where the transaction is surrounded by the usual indicia of undue influence, he is called upon to show that the inducements which confessedly led to the change were not unfounded and illusory. (3 Barb. Ch., 325, 340; 13 Barb., 510, 522, 526.) In the present case, there not only is an absence of such evidence, but it is proved, affirmatively, that the impressions under which the change was made were false.

It is true that the burden of establishing imposition and undue influence rests, in the first instance, upon the party by whom it is alleged. Fraud is never to be presumed from the mere concurrence of temptation and opportunity, or from the mere fact that the chief actor is also the principal beneficiary. It must be established by affirmative evidence. It is thus established, however, when facts are proved from which it results as an unavoidable inference. When such evidence is furnished, the burden of repelling the presumption, to which it leads, is cast upon the party to whom the fraud is imputed.

It is not to be supposed that fraud and undue influence are ordinarily susceptible of direct proof. Subscribing witnesses are called to attest the execution of wills, but not the antecedent agencies by which they are procured. The purposes to be served are such as court privacy rather than publicity. "In some cases," as this court said in the case of Sears v. Shafer, "undue influence will be inferred from the nature of the transaction alone; in others, from the nature of the transaction, and the exercise of occasional or habitual influence." (2 Seld., 272.) The grounds for imputing it, as Sir JOHN NICHOLL said, in the case of Marsh v. Tyrrell, "must be looked for in the conduct of the parties, and in the documents, rather than in the oral evidence. The necessary inferences to be drawn from that conduct will afford a solid and safe basis for the judgment of the court. Where the oral evidence harmonizes with those inferences, a moral conviction rightfully follows; but the depositions, where they are at variance with the conduct of the parties, and with the res gestæ, are less to be relied upon." (2 Haggard, 84.) It was held, in this State, by the Court of Errors, that a circumstance indicative of undue influence was the fact, common to that case, and to this, that the donor was brought, before the execution of the instrument, to a state of causeless alarm as to the condition of his property, and of groundless suspicion against members of his own family. (3 Cow., 537, 572.) So, in the Parish will case, it was said, in the course of the comments upon the circumstances, raising a presumption of undue influence by the principal beneficiary: "Direct evidence of her control in these matters, of her actual exercise of undue influence in procuring her will to be executed by him, could hardly be expected. The means of keeping the influence out of sight were too many, and too easy of application. But, when such is the array of circumstances, when such a result is attained without any more substantial, apparent cause, we are justified in saying, from the evidence, that the only cause to be inferred, which is in the least degree adequate to produce the result, is a long continued, persistent, overpowering influence, to which his condition rendered him peculiarly subject, and which she was as peculiarly in a position to exercise." ( 25 N.Y., 95.)

In the present case, all the controlling facts tend to one inevitable conclusion. When the antecedent and surrounding circumstances are grouped in their appropriate relations, they carry to the conscience and the understanding the clear conviction, that, when the mother affixed her signature, she was executing the daughter's will. It is no sufficient answer to the presumption of undue influence, which results from the undisputed facts, that the testatrix was aware of the contents of the instrument, and assented to all its provisions. This was the precise purpose, which the undue influence was employed to accomplish. That consideration was urged in the case of Bridgman v. Green; but Lord Chief Justice WILMOT very properly replied, that it only tended to show, more clearly, the deep-rooted influence obtained over the testator. He added: "In cases of forgery, instructions under the hand of the person whose deed or will is supposed to be forged, to the same effect with the deed or the will, are very material; but in cases of undue influence and imposition, they prove nothing, for the same power which produces one produces the other." (Wilmot, 70.) In the case of Huguenin v. Baseley, Lord ELDON said: "The question is, not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced." (14 Vesey, 299.) In a case somewhat analogous to the present, where the relations of the parties were reversed, and the execution of a deed was obtained by undue influence of the parent over the child, Judge EMOTT said: "If the mind of the donor was brought to a purpose, preconceived by the parent for his own sole advantage, by an influence which she could not escape in the circumstances in which she was placed, and which was deliberately used to effect such a purpose, then that influence, or its exercise, was undue and improper." (31 Barb., 25.)

We think the surrogate was right in rejecting the instrument propounded for probate; and we have not arrived at this conclusion, without giving to the questions, raised by the respective parties, that full and careful consideration which seemed due to their interest and importance.

It is proper to add, that, if we had arrived at a different conclusion, the judgment of the court below must still have been reversed. As that decision was founded upon a conclusion on a question of fact, adverse to that of the surrogate by whom the will was rejected, the Supreme Court had no authority to adjudge that the instrument be admitted to probate, but should have coupled its order of reversal with a direction for a feigned issue, in accordance with the provisions of the statute. (2 R.S., 66, § 57; Alston v. Jones, 10 Paige, 100; Auburn Theological Seminary v. Calhoun, 25 N.Y., 428.) That question, however, becomes unimportant, as we think there was no error in the decree of the surrogate. An appellate court has no authority to direct a feigned issue, unless it arrives at a conclusion on the question of fact adverse to that of the original tribunal.

The judgment of the Supreme Court should be reversed, and the decree of the surrogate rejecting the will should be affirmed.

The foregoing opinion was concurred in by DAVIES, Ch. J., and WRIGHT, LEONARD and MORGAN, JJ.