quently was free to do with her property as she chose. She told Mrs. Burnside, while residing with her, that she intended to change her will. After the will was made on April 9th (10 days after) she stated to Mrs. Newman, "I have got everything all right, just as I want it." She also made the same statement to a cousin on April 3d, and said, "I have made my will; there isn't anything more to live for." There is no evidence in the case that any request was ever made by either Mr. or Mrs. Kibbe to the testatrix to make a third will, or that she give by will or in any other manner any of her property or estate to either of them; neither is there any evidence which tends to show that the testatrix was displeased with the terms of her last will, or that it was not as she desired it to be. It appears that, while the testatrix was at the Kibbe home, Mrs. Kibbe cared for her during the day, and Mrs. Cole and Mrs. Baxter at night; Mrs. Baxter being with her for 12 nights.

[2] The surrogate has written a lengthy opinion, covering the facts exhaustively and reviewing numerous cases bearing upon the question of undue influence. We do not disagree with him as to the propositions of law upon which he bases his opinion, but rather upon the application of such legal propositions to the facts presented. We agree with him that:

"The exercise of such influence is seldom susceptible of direct proof, but there must be affirmative evidence of facts and circumstances from which the exercise of such undue influence can fairly and necessarily be inferred and established" (citing Matter of Richardson, 137 App. Div. 103, 122 N. Y. S. 83; Tyler v. Gardiner, 35 N. Y. 559 and other cases).

It has been held that mere opportunity is not sufficient proof undue influence was exercised. We find no element of undue influence in this case, except that of opportunity. It is true that Mr. and Mrs. Kibbe were for the greater party of the time alone in the home with Miss Bundy, and there was every opportunity for the exercise of undue influence; but there are other elements, which are frequently referred to in the many cases cited, which are lacking in establishing fraud in the case now before us. The surrogate cites Tyler v. Gardiner, supra, as follows:

"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.

It is true that there was a fiduciary relation existing, which required an explanation which would "satisfy the court that the will was the free, untrammeled, and intelligent expression of the wishes and intentions of the testatrix." The fact that such was true has in a measure al

(217 N.Y.S.)

ready been discussed. The surrogate discusses at length Matter of Smith, 95 N. Y. 516, from which we quote as follows:

"It has been held that the fact that the beneficiary was the guardian, attorney, or trustee of the decedent does not alone create a presumption against a testamentary gift, or that it was procured by undue influence. Coffin v. Coffin, 23 N. Y. 9 [80 Am. Dec. 235]; Post v. Mason, 91 N. Y. 539, 43 Am. Rep. 689; Parfitt v. Lawless, L. R. 2 Pro. & Div. 462. The mere fact, therefore, that the proponent was the attorney of the testatrix, did not, according to the authorities cited, create a presumption against the validity of the legacy given by her will. But taking all the circumstances together-the fiduciary relation, the change of testamentary intention, the age, and mental and physical condition of the decedent, the fact that the proponent was the draftsman and principal beneficiary under the will, and took an active part in procuring its execution, and that the testatrix acted without independent advice-a case was made which required explanation, and which imposed upon the proponent the burden of satisfying the court that the will was the free, untrammeled, and intelligent expression of the wishes and intention of the testatrix."

This quotation is followed by the statement by the surrogate:

"There is not a scintilla of evidence, outside of the propounded paper and the testimony of the interested subscribing witness, who drafted the will, that the decedent desired to make the proponent a gift of her property, except one linen sheet and a set of beads. There is some proof that the decedent did refer to the kindness of the proponent to her and remarked that she would be paid."

Referring to the language in Matter of Smith, supra, we are of the opinion that the testamentary intention of the testatrix has been satisfactorily explained. The age and mental and physical condition of the testatrix has no bearing on this proposition, except in so far as they may have weakened the power of testatrix to resist influence. There is no positive proof that any request was ever made by proponent to testatrix to make the will as drafted. The acts of the draftsman were at the request of the testatrix, as they had been on two previous occasions, when other wills were made. It cannot be said that testatrix acted without independent advice, or at least without an opportunity of procuring the same, because it appears that two or three of her friends called upon her while she was at the home of the Kibbes, and also that two nurses were with her, so that any request that she might wish to have made could have been expressed to them privately, during the absence of the Kibbes. We disagree with the surrogate in the statement that practically every condition referred. to in Matter of Smith, supra, exists in the case now before us. We think we have satisfactorily explained our reasons for such disagreement. We realize fully the force and effect of the surrogate's quotation from Matter of Rintelen's Will, 77 App. Div. 142, 78 N. Y. S. 1092, as follows:

"If attorneys who prepare wills from which they derive substantial benefit allow them to be executed without insisting upon the testator having independent advice, so that proof of his intention is available, they must take the consequence if their motives and acts are questioned, and instruments which give such advantage are refused probate, because the actual free and untrammeled intention of the decedent is not proved."

The rule is a good one, but we do not believe that it is applicable in this case, because, as we have already shown, the testatrix had independent advice available. It is our conclusion that the propositions of law invoked by the surrogate in his decision are too strictly applied to the facts in this case, and while prima facie the circumstances surrounding the execution of this will may truly be said to be of a suspicious nature, we believe that they have been satisfactorily explained. The conditions under which the will was executed were brought about by the testatrix. Neither the time, place, nor surroundings were fixed by either Kibbe or his wife. There was a combination of circum- . stances existing at that time, which could only be explained by Kibbe. No question is raised as to the credibility of the witnesses. Indeed, the surrogate in his opinion practically gives full credibility to the testimony of Kibbe, when he states that "he is a respected member of the bar, practicing in the county of Delaware." If, then, his testimony is to be given full credence, we believe that his explanation of the circumstances surrounding the execution of this will are satisfactory.

The decree of the Surrogate's Court of Delaware County is reversed upon the law and the facts, with costs and disbursements in favor of appellant and against the respondent Herman B. Bundy, and the matter is remitted to said Surrogate's Court, with directions. to admit the will to probate. The court disapproves of the finding that the said will was procured by the improper and undue influence of the proponent. All concur.

(217 App. Div. 632)

GARFUNKEL v. MALCOLMSON et al.

(Supreme Court, Appellate Division, First Department. July 6, 1926.) 1. Frauds, statute of 156-Purchaser's affidavit, opposing vendor's motion to dismiss complaint, alleging that memorandum of contract was signed by vendor's authorized agent, held to raise issue of fact as to agent's authority (Rules of Civil Practice, rule 107, subd. 8).

Where vendor moved under Rules of Civil Practice, rule 107, subd. 8, to dismiss purchaser's complaint for specific performance on ground that contract did not comply with statute, purchaser's answering afFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(217 N.Y.S.)

fidavit alleging that memorandum therein set out was signed by vendor's authorized agent, and that agreement was subsequently altered and approved by vendors, held to raise issue of fact as to agent's authority.

2. Frauds, statute of ~~152(2).

Purchaser failing to set up defense of statute in answer waived defect, and his motion to dismiss complaint under Civil Practice Rules, rule 107, subd. 8, will be denied; rule 112 and Civil Practice Act, § 476, being inapplicable.

Appeal from Supreme Court, New York County.

Action by Harry I. Garfunkel against William Malcolmson and another. From an order granting defendants' motion to dismiss the complaint, plaintiff appeals. Reversed, and motion denied.

Argued before CLARKE, P. J., and MERRELL, FINCH, MARTIN, and WAGNER, JJ.

Charles H. Studin, of New York City (Leon Mintz, of New York City, on the brief), for appellant.

Samuel Abramson, of New York City, for respondents.

FINCH, J. [1] The complaint is in the usual form for an action brought by the vendee of real estate to compel the vendor specifically to perform by conveying title. It does not appear from the complaint that the contract was in writing. The answer is substantially a general denial, and does not set up as a defense the statute of frauds. The complaint was served on the 1st day of December, 1925. The defendants answered on December 4, 1925, and thereafter on December 18th, and within 20 days of the service of the complaint, the defendants moved by order to show cause to dismiss the complaint. In the moving affidavits, defendants stated that the motion was brought under the provisions of rule 107, subd. 8, of the Rules of Civil Practice, namely, upon the ground that the contract on which the action was founded was unenforceable by reason of the statute of frauds. That there might be no mistake in apprising the plaintiff of the ground of the motion, it also elsewhere is alleged in the moving affidavits "that the alleged contract on which the action is founded is not enforceable under the provisions of the statute of frauds." In their affidavits the defendants assert that they were out of the city at the time the contract is alleged to have been signed, and that neither of the defendants signed any writing or made any agreement with the plaintiff for the sale of the property. In opposition to the motion, the plaintiff has submitted an affidavit alleging that the defendants authorized the Maxwell Wagner Agency, Inc., real estate broker, to sell the property in question to the plaintiff, and that the plaintiff en

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 217 N.Y.S.-3

tered into a contract of sale in writing with the defendants through the said agent, a copy of which contract is set forth. It is further alleged by the plaintiff that the said agreement was seen and approved by the defendants after its execution, and that certain interlined changes appearing thereon were made pursuant to the instructions of defendants by the said broker. Plaintiff further alleges that he is prepared to prove said agency upon the trial by ample evidence.

Upon this appeal it is not disputed by the defendants that the writing upon which the plaintiff relies is sufficient to satisfy the requirements of the statute of frauds, if the broker who signed the same was duly authorized so to do. There is thus a writing admittedly constituting an apparent compliance with the statute of frauds, and an issue of fact is raised whether the defendants are bound by this writing, depending upon whether the defendants had authorized the Maxwell Wagner Agency, Inc., to sign said contract as their agent or had subsequently ratified the same. The presence of this issue of fact requires a reversal of the order appealed from and a denial of the motion to dismiss the complaint. Herzog v. Brown, 217 App. Div. 402, 216 N. Y. S. 134, decided by this court June 4, 1926. The defendants, however, contend that the court at Special Term was justified in deciding adversely to the plaintiff the issue whether there was such authority as aforesaid, inasmuch as the plaintiff was content to rest upon the writing' produced and the allegation that the broker was authorized to make the same, but showed no further facts to prove such authority. In so contending, however, the defendants overlooked the allegations already noted in the affidavit of the plaintiff that the defendants saw and approved the agreement after such agreement had been signed by the Maxwell Wagner Agency, Inc., thus ratifying the authority, and that the interlined changes shown in this agreement were made by the broker on the instructions of the defendants.

[2] The plaintiff urges on his part that the motion brought by the defendants, namely, that the contract is unenforceable by reason of the statute of frauds, is not now available to the defendants in the present state of the pleadings, since the answer served by the defendants does not set up a defense of the statute of frauds. In this contention plaintiff is correct, since the defendants have not only answered, but in this answer, by not setting up as a defense noncompliance with the statute of frauds, have taken a position in the cause that they do not intend to rely thereon. Any defect in this regard, therefore, has been declared immaterial by the defendants. This is not a case of where the plaintiff has subsequently served a bill of particulars showing that the contract relied upon was defective under the statute of frauds and thus furnished an admission which permitted a motion to be made for judgment on the pleadings under section 476 of the Civil