Decree entered March 7, 1961 admitting to probate the last will and testament of decedent unanimously reversed on the law and the facts and a new trial, limited to the issue of undue influence, ordered with costs to abide the event, pursuant to section 283 of the Surrogate's Court Act. Entry and record of the jury's verdict upon the remaining issues is directed pursuant to section 309 of the Surrogate's Court Act. The proof upon the trial raised an issue of fact whether the will was the product of undue influence by the principal beneficiary, who participated, as attorney, in the preparation of the will. The proponent-respondent herein was not the draftsman nor a beneficiary. Inasmuch as the jury was ultimately unable to agree upon this issue, a new trial should have been ordered before another jury. It was incumbent upon the principal beneficiary to "explain the circumstances and to show in the first instance that the gift was freely and willingly made" ( Matter of Putnam, 257 N.Y. 140, 143; Matter of Satterlee, 281 App. Div. 251, 254). Although an explanation was proffered, it was for the jury to determine whether it was satisfactory or convincing. Because a new trial is required it is appropriate to suggest that the emphasis in the charge concerning the principal beneficiary's professional reputation and success at the Bar would have been better omitted, lest a jury misconstrue its purpose. Thus, it was hardly advisable to advise the jury that the beneficiary's reputation hung in the balance and, in effect, that his career rested in their hands. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Valente and Bastow, JJ.