1 Bradf. 378 | N.Y. Sur. Ct. | 1851
The decedent at the time of his death was unmarried, had no descendants, and left surviving his father, William Harrison, his heir and next of kin. There is no definite proof that he knew of the existence of any other near relations, if he had any such. The decease of
The will propounded for probate, appropriates the income of the estate, so far as may be necessary, towards the support and maintenance of William Harrison, the father, for life, and after his death, directs the payment of a legacy of $700, to Sarah Ann Lovejoy; a legacy of $300, to Phebe Peterson; and a legacy of $2,500, to Theodore Allen; the residue, if any, being given to Thomas E. Allen, who is named executor.
During the progress of this case, and amid all the variety of testimony accumulated on different points, not a particle of proof" has been adduced, suggesting a doubt as to the genuineness of the signature of John Harrison, subscribed at the end of the will. The attestation clause is full in its recital of all the statutory ceremonies, and is subscribed by two witnesses, Richard M. Harrington and Edward Beadle. There is nothing informal on the face of the paper. Mr. Harrington, one of the witnesses, testifies that he saw the decedent sign the will, heard him declare it to be his last will and testament, was requested by him to sign as a witness, and did so. He also proves the subscription and publication of the will in the presence of Beadle, the request of the decedent to Beadle to become a witness, and his compliance therewith. The same facts are substantially proved by Beadle himself.
An effort was made to impeach Mr. Harrington, and for this purpose, the contestant, in the first instance, called eleven witnesses, all of whom testified that his general character was bad, and six of them stating they would not believe him under oath. On the other side, thirty-five witnesses were examined, who spoke favorably of his char
There are some discrepancies in the evidence in this case, which are not, however, very important; and in stating the conclusions at which I have arrived, I prefer to dwell upon such broad and prominent features of fact as are sustained by the general weight of testimony, and which, in my judgment, should control the decision of the Court.
1. The place in which the will was made might, under ordinary circumstances, excite suspicion. It is, however, manifest that the decedent was in the habit of resorting to Lovejoy’s, and on occasions when he was indulging in drinking, Mrs. McMahon says, “ He never went at such times while we were in Houston Street, to any other place than to Lovejoy’s.” That house was near his own home, he was taken ill there, and being seriously sick, it was very natural for him to make his will there.
2. His family being kept in ignorance of his condition,
3. Whether the terms of the will are consistent with the state of the affections of the decedent at the time, is not so easy of solution. The provisions for his father,—an infirm old man,—for Mrs. Lovejoy and Mrs. Peterson, are natural, and indicate, in the one case, filial solicitude, and in the others, a proper recollection of one who had attended his wife in her last sickness, as well as of the person who was then performing similar services for himself. That, as Mrs. McMahon relates, he thought Mrs. Peterson an unfit associate for his wife, is not inconsistent with a sense of her kind attentions, and a desire to reward them. The motives which operated on his mind in favor of Theodore Allen, are not so apparent, though it is obvious that at the time he was on terms of intimacy with the Father. Allen was requested by Harrison to send Mr. Harrington to draw his will. It is not improbable that a feeling of pride induced him not to' call in his own counsel. Dr. Geer saw Allen at Lovejoy’s ; Harrison, at the time of drawing the will, called him in a familiar way, “ Old Allen it was through Allen the information reached Mrs. McMahon that Harrison was at Lovejoy’s, and that lady states that “ Allen was in the habit of coming almost daily to their houseand a few days after, when Harrison had returned to his dwelling in Houston street, she says, “ Mr. Allen used to come there frequently, morning and evening, and during the day.” But it must not be forgotten, that the
4. But if it were otherwise, and if the will was really procured to be made by undue influence, when his mind was in a weak and nervous condition, why was it not revoked on his recovery ? Ten days after it was executed, he was able to leave the house, and to visit Hr. McMahon at his office. There is no intimation that he was not then and subsequently in the full possession of his faculties, and it is impossible to sujipose he had forgotten the fact of the execution of the will. And yet, Mrs. McMahon states, he expressed in very decided terms, his intention to leave his property to her. It is true that Mr. Britton, in whose presence one of those conversations is stated to have occurred, contradicts her in that respect; but without looking at that, and simply contrasting these declarations with his previous and subsequent statements to others, and bearing in mind that no open rupture had yet occurred, the decedent’s conduct, though exposed to the charge of dis-ingenuousness, is not unsusceptible of explanation. For after Mr. McMahon and his wife had instituted proceedings for his removal, as executor of his wife’s estate, on grounds which assailed his character, and could hardly fail to incense him, he made declarations distinctly recognizing this will. In the fall of 1849, he was again taken sick, and Dr. "Warington, who attended him, states he told him that he had made a will, “ his father was provided for“ he had left something to Mrs. Lovejoy“ that she had been very kind to him.” ££ He had made it when he was ill under Dr. Greer,” and as the witness understood him, at “ Lovejoy’s house.” Mr. Granger, who saw him subsequent to this illness, as he fixes the time, says that Harrison told him he had been very sick, and he “ might judge how far he was gone, that he had sent for his lawyer, or 'for a lawyer, and had his will made.” In the succeeding December, he stated to Mr. Britton, in relation to Mrs. McMahon, and her
With the light We have, as to the decedent’s testamentary capacity, the state of his feelings, the circumstances attending the execution of the will, the emanation of instructions from him personally, the severe litigation which ensued between him and Mr. and Mrs. McMahon, and the general tenor of his previous and subsequent declarations to third parties,—to overturn this Will, in the absence of direct proof of undue influence, upon mere conjectures and suspicions, Would, I think, be an unwarrantable and extreme act. My opinion is, that it should be admitted to probate as a valid will of real and personal estate.
In a note written to me after his examination, the Doctor, on consulting his books, fixed the date from the 2d to the 6th March, 1848, inclusive. •