law indulges presumption in New York

1939In Matter of Smith ( 95 N. Y. 516, 522 ) it is said that the complete onus of exculpatory demonstration resting upon a person in such a situation who receives the benefit of an inter vivos transfer, does not rest upon one who receives a similar testamentary benefit, it being stated that the demonstration of the confidential relationship “ does not alone create a presumption against a testamentary gift, or that it was procured by undue influence.” • This statement is Lo be compared with the observations recorded in Marx v. McGlynn ( 88 N. Y. 357, 371 ), which are in part quoted and applied in M

1906The burden of proof rests on the donee,, to establish its perfect fairness and propriety. * * * If such proof cannot be given, then the case will be treated as one of constructive fraud, and set aside.” But the clearest statement of this rule, as applicable to probate matters, is contained in the celebrated case of Marx v. McGlynn, 88 N. Y. 357 , .at page 371: “ But there are certain cases in which the law indulges in the presumption that undue influence has been used, and those cases, are where a patient makes a will in favor of his physician, a. client in favor of his lawyer, a ward in favor

1966The law indulges in a presumption that a person who executed a will intended to dispose of his entire estate (Matter of Fabbri, 2 N Y 2d 236, 243); consequently the policy of the courts is to carry out the intention of the testator as far as possible (Matter of Fischer, 307 N. Y. 149, 158 ), by leaning in favor of the preservation of such valid parts of the will as can be separated from those which are invalid (Matter of Hitchcock, 222 N. Y. 57, 73 ) to preserve the general plan of the testator and to prevent intestacy either partial or total.

1966(Kalish v. Kalish, 166 N. Y. 368, 375 .) We have no doubt that the primary concerns of the testator were, first, to provide for the proper care and maintenance of his favorite niece Florence during her lifetime and, second, to transmit the bulk of his residuary estate to a named charitable beneficiary.

1966The law indulges in a presumption that a person who executed a will intended to dispose of his entire estate (Matter of Fabbri, 2 N Y 2d 236, 243); consequently the policy of the courts is to carry out the intention of the testator as far as possible (Matter of Fischer, 307 N. Y. 149, 158 ), by leaning in favor of the preservation of such valid parts of the will as can be separated from those which are invalid (Matter of Hitchcock, 222 N. Y. 57, 73 ) to preserve the general plan of the testator and to prevent intestacy either partial or total.

1964The language of this court in Matter of Satterlee ( 281 App. Div. 251, 254 ) is apropos: “ Surely, in the light of the unusual setting and the highly fiduciary relationship which proponent had assumed toward decedent, it was incumbent on him to come forward and explain his becoming the principal beneficiary under her will ’ Matter of Walther (6 N Y 2d 49) is distinguishable on the facts.

1955(Matter of Miner, 146 N. Y. 121 ; Davids on New York Law of Wills, § 497.) Towler v. Towler ( 142 N. Y. 371 ) is distinguishable from the case at bar.

1955(Matter of Miner, 146 N. Y. 121 ; Davids on New York Law of Wills, § 497.) Towler v. Towler ( 142 N. Y. 371 ) is distinguishable from the case at bar.

1947The law indulges a presumption that a testator intends to dispose of his entire estate and does not intend to die intestate as to any part of it, and in the construction of doubtful clauses in a will, that interpretation is to be adopted, if possible, which avoids a partial intestacy (Meeks v. Meeks, 161 N. Y. 66, 71 ).

1939Such wills, when made to the exclusion of the natural objects of the testator’s bounty, are viewed with great suspicion by the law, and some proof should be required beside the factum of the will before the will can be sustained. * * * This presumption of undue influence which arises in such cases is a presumption of fact.” Finally, it is said in Matter of Putnam ( 257 N. Y. 140, 143 ), respecting a showing of testamentary benefit to a person standing in such a relationship: “ In the absence of any explanation a jury may be justified in drawing the inference of undue influence.” The legal prin

1939Thus in Smith v. Reid ( 134 N. Y. 568, at p. 575 ) the rule is stated: “ But the rule is well settled that a voluntary conveyance by one indebted' at the time is presumptively fraudulent.

1939In Matter of Smith ( 95 N. Y. 516, 522 ) it is said that the complete onus of exculpatory demonstration resting upon a person in such a situation who receives the benefit of an inter vivos transfer, does not rest upon one who receives a similar testamentary benefit, it being stated that the demonstration of the confidential relationship “ does not alone create a presumption against a testamentary gift, or that it was procured by undue influence.” • This statement is Lo be compared with the observations recorded in Marx v. McGlynn ( 88 N. Y. 357, 371 ), which are in part quoted and applied in M

1937(Matter of Meehan, 150 App. Div. 681, 682, 684 ; Smith v. Smith, 194 id. 543, 548, 554; Matter of Sciscenti, 157 Misc. 499, 501 ; affd., 248 App. Div. 702 ; Matter of Kotlik, 152 Misc. 802, 803 ; Matter of Callahan, 142 id. 28, 36.) While such a presumed validity has ample foundation in human experience, it is strengthened by public policy which requires that the State safe guard an institution which is regarded as the foundation of its existence.

1937(Matter of Meehan, 150 App. Div. 681, 682, 684 ; Smith v. Smith, 194 id. 543, 548, 554; Matter of Sciscenti, 157 Misc. 499, 501 ; affd., 248 App. Div. 702 ; Matter of Kotlik, 152 Misc. 802, 803 ; Matter of Callahan, 142 id. 28, 36.) While such a presumed validity has ample foundation in human experience, it is strengthened by public policy which requires that the State safe guard an institution which is regarded as the foundation of its existence.

1937(Matter of Meehan, 150 App. Div. 681, 682, 684 ; Smith v. Smith, 194 id. 543, 548, 554; Matter of Sciscenti, 157 Misc. 499, 501 ; affd., 248 App. Div. 702 ; Matter of Kotlik, 152 Misc. 802, 803 ; Matter of Callahan, 142 id. 28, 36.) While such a presumed validity has ample foundation in human experience, it is strengthened by public policy which requires that the State safe guard an institution which is regarded as the foundation of its existence.

1916Co., 120 App. Div. 260 , and cases there cited.

1906Matter of Hosford, 27 App. Div. 427 .

1906The burden of proof rests on the donee,, to establish its perfect fairness and propriety. * * * If such proof cannot be given, then the case will be treated as one of constructive fraud, and set aside.” But the clearest statement of this rule, as applicable to probate matters, is contained in the celebrated case of Marx v. McGlynn, 88 N. Y. 357 , .at page 371: “ But there are certain cases in which the law indulges in the presumption that undue influence has been used, and those cases, are where a patient makes a will in favor of his physician, a. client in favor of his lawyer, a ward in favor

1862The defendant could not act in the capacity of agent for the plaintiff, and vendor for himself, in transferring these bonds, &c. ( 14 N. Y.