Opinion of the Court, per EARL, J.

capacity, a present knowledge of the contents of the will, and that its execution was surrounded by all the guards the statute has prescribed to prevent fraud and imposition, such will can only be avoided by proof of influence amounting to force or coercion, and the burden of proving this is upon the party making the allegation. (In re Will of Martin, 96 N. Y. 193.)

EARL, J. Jacob Mondorf died in the city of Brooklyn on the 22d day of July, 1885, having made two wills, one dated May 26, 1868, and the other dated January 14, 1885. By the former will he gave all his estate to his wife, and by the latter he gave it all to Mrs. Juliana Schaumburg and revoked all former wills. He left no issue. He and his wife became estranged, and in January, 1878, they separated and thereafter lived apart. After their separation he lived in the family of Mrs. Schaumburg, who was a widow with several children.

One of the executors named in the later will presented the same for probate, and the testator's widow contested the probate, and presented the first will for probate; and certain of his heirs contested the probate of both wills. The surrogate refused probate to the first will and admitted the later one to probate.

There can be no question that the will of 1885 was executed with all the formalities prescribed by law. It was drawn by an attorney of the testator's own selection, and he gave the directions for drawing it. After it was drawn it was read to him and he pronounced it right. It was again read in his presence, including the full attestation clause, to the witnesses. He declared it to be his will in the presence of the witnesses, and they subscribed it at his request, in his presence, and in the presence of each other. In April afterward he called at the office of the attorney and paid him for drawing the will. There can be no doubt of the entire competency of the testator at the time to make a will. It is clear that he was in

the entire possession of his mental faculties, that he fully comprehended the effect of the will, and that it expressed his deliberate purpose formed a long time before its execution.

ence.

Opinion of the Court, per EARL, J.

The will is mainly assailed on the ground of undue influThere is not the least evidence that Mrs. Schaumburg ever attempted to influence him in the disposition of his property. But undue influence is sought to be inferred from his relations with her, and the fact that he gave her, a stranger in blood, all his estate. The evidence tends to show that he had at some time made a division of his property with his wife, and that she had more property than he had. He complained of her refusal to live with him, and of her bad treatment of him. He boarded and lived in the family of Mrs. Schaumburg for several years, and was kindly cared for by her when sick and feeble, needing attention, and for such kindness he frequently expressed his gratitude. While there was some evidence that the relations between him and her were meretricious, the surrogate refused to find that they

were.

This will was prompted by gratitude, and a will thus induced cannot, in the case of a perfectly competent testator, be said to have been obtained by what in the law is styled undue influence. There was no fraud, imposition, constraint or

coercion.

The fact that he gave his wife nothing is accounted for by their unfriendly and hostile relations, and the previous provision made for her in the division of his property.

Even if his relations with Mrs. Schaumburg were meretricious, the law does not on that account condemn a will made in her favor. Where such relations exist all the circumstances attending the execution of a will which may be shown to have been induced thereby will be carefully scrutinized; but the right of a competent testator to make any disposition of his property which pleases him, although it may be unjust and unnatural, will not be curtailed. (Seguine v. Seguine, 4 Abb. Ct. of App. 191; Horn v. Pullman, 72 N. Y. 269; Marx v. McGlynn, 88 id. 357; In re Will of Martin, 98 id. 193.)

We do not perceive that the appellants have any reason to

Statement of case.

complain of any of the rulings of the surrogate upon questions of evidence.

The widow complains that the surrogate did not allow her costs. He did not impose costs upon her, and whether or not he should allow her costs rested in his discretion under section 2558 of the Code. While under subdivison 3 of that section, if he found her contest was in good faith, he could have awarded her costs to be paid out of the estate, he was not bound to.

We are of opinion, therefore, that the judgment should be affirmed, with costs against all of the appellants.

All concur.

Judgment affirmed.

WALTER S. CHURCH, Appellant, v. JOHN T. SEELEY, Respondent.

A rent charge may be apportioned by the concurring assent or action of both the landlord and tenant.

Plaintiff recovered in ejectment part of a lot held under one of the Van Rensselaer leases, under a provision of the lease authorizing re-entry for non-payment of rent. After the time for redemption had passed, and after re-entry by the landlord, he brought ejectment to recover the balance of the lot which was held under the same lease. On the trial of the latter action it appeared that such severance of the lease by the landlord, in pursuit of his remedy, was preceded by long continued payments by the owner of the parcel in controversy, measured by the proportion which his holding bore to the full quantity of the lot. These payments, although credited upon the whole lease, it did not appear were accepted upon that condition. Held, that a sever ance of the rent by the act and assent of the landlord was a reasonable and just inference; and that the referee in fixing the amount of rent in arrear to be stated in the judgment, as required by the Code of Civil Procedure (§ 1507), properly stated the proportionate share of the parcel sought to be recovered, instead of the whole amount unpaid on the lease. As to whether a successful re-entry upon a part of premises leased in fee extinguishes the rent upon the remainder, quære.

(Argued June 26, 1888; decided October 2, 1888.) SICKELS-VOL. LXV. 58

Statement of case.

APPEAL from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 26, 1886, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 39 Hun, 269.)

This was an action of ejectment brought by plaintiff, who claimed, as owner of two leases in fee, known as Van Rensselaer leases; one called the Abbott and Russ lease, covering 152 acres, known as lot 402; the other called the Tubbs lease, covering 160 acres, known as lot 378. In 1882 the plaintiff recovered, in ejectment for non-payment of rent, all of the land included in the Abbott and Russ lease, except ten acres, and took possession of the same. In 1881 the plaintiff recovered, in ejectment for non-payment of rent, all of the land included in the Tubbs lease, except sixty acres, and took possession. No redemption was made from those recoveries, and the time for redemption has passed. This action was brought to recover the ten acres of lot 402, and 60 60 acres of lot 378, occupied by defendant, for non-payment of rent. The amount due for rent on the Abbott and Russ lease, lot 402, at the time of the recovery in the first ejectment action, was about $4,972.78. The amount due for rent on the Tubbs lease, lot 378, at the time of the recovery in the ejectment action of the 100 acres, was about $2,953.82. referee in this action directed judgment for plaintiff, and found that the actual amount due on lot 402, at the commencement of this action, was $4,978.81, and that the amount due on the ten acres, sought to be recovered, was $350.61; that the actual amount due on lot 378 was $2,975.45, and that the amount in arrear on the sixty acres, sought to be recovered, was $410.50, making the total in arrear to the plaintiff, $761.11.

The

S. W. Rosendale for appellant. The history of the Van Rensselaer leases and general doctrine as to them and their effect are discussed, and cases reviewed. (Gerard's Titles to Real Estates [2d ed.] 129, 150; Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Ball, Id. 100; Tyler v. Heidorn

Statement of case.

46 Barb. 429). The covenants are perpetual and run with the land. (Central Bank v. Heidorn, 48 N. Y. 260; Lyon v. Odell, 65 id. 28.) The conditions remain entire, although the land is divided by acts of the parties, and for a breach of it, as to one piece, give the lessor or his assignee the right to re-enter for the whole land. (Van Rensselaer v. Jewett, 5 Den. 121.) When a demand is made it must be for all the rent due on the whole premises. (Van Rensselaer v. Jewett, 5 Den. 121, 127; 2 N. Y. 141.) The land, and every part of it, is subject to these rents and conditions; it is a covenant running with the land, and is a rent charge in fee. (Van Rensselaer v. Chadwick, 24 Barb. 333; affirmed, 22 N. Y. 32.) The rents have been extinguished as to the appellant, because the plaintiff, as the assignee and owner of the lease, re-entered upon, and has possessed himself of, a portion of the premises covered by the original lease. (Main v. Green, 32 Barb. 448; 460; Van Rensselaer v. Jones, 2 id. 643-661.) The entry into a part authorized by the lease could not operate as an extinguishment, while in an action on the covenant to recover for rent it might be regarded as an apportionment. (Van Rensselaer v. Jones, 2 Barb. 643, 661.) In actions on the covenant to recover rent a different rule applies. ( (Van Rensselaer v. Hays, 19 N. Y. 85; Van Rensselaer v. Jones, 42 Barb. 135; Tyler v. Heidorn, 46 id. 439.) The application having been made by the creditor (landlord) at the time of payment, and the referee having found that the payments were applied on the entire lease, the referee had no power to assume otherwise to apply them, or to assume to apportion them. (Bank of California v. Webb, 94 N. Y. 467.) The rent in arrear on a lease remains unaffected by the fact that the lease becomes forfeited for non-payment of rent, and tenant evicted, and the landlord will not be prevented from recovering the amount of rent in arrear. The recovery of the land is not satisfaction of rent in arrears. (Stuyvesant v. Davis, 9 Paige, 427; McKeon v. Whitney, 3 Den. 452; Hinsdale v. White, 6 Hill, 507; Johnson v. Oppenheim, 55 N. Y.