72 N.Y.S. 601 | N.Y. App. Div. | 1901
The plaintiff is the widow of Alexander Buchanan, who died at the Post-Graduate Hospital in the city of New York on the 1st day of September, 1896, leaving a last will and testament which, after a contest, was admitted to probate on the 2d day of February, 1899, by the surrogate of the county of New York. In March, 1899, this action was brought under the provisions of section 2653a of the Code of Civil Procedure to procure a judicial determination of the validity of the instrument. The procedure at the trial conformed to the requirements of the Code so far as the order of proof was concerned. The party seeking to sustain the will offered it in evidence and rested, whereupon the plaintiff undertook to prove the grounds upon which she relied to invalidate the instrument, and some evidence was then offered by the defendant Belsey (formerly Foster) in rebuttal. There were three separate grounds upon which the will was attacked. Fwst, that the testator at the time the alleged will was made was not of sound mind or memory or in any
The case was submitted to the jury on all those issues, and they found a verdict, not specifically that the will was not the last will of the testator, but, as the record shows, simply a general verdict in favor of the plaintiff. Upon that verdict a judgment was entered •by which it was “ adjudged that the said paper writing produced and purporting to be the last will of the said Alexander Buchanan, late of the County and City of New York, deceased, is not the last will of the said Alexander Buchanan, deceased; and it is further adjudged that the said decree of the surrogate of the said county of New York, dated and entered the second day of February, 1899, admitting the said paper writing to probate, is invalid.”
The defendant Belsey moved for a new trial under section 999 of the Code of Civil Procedure on all the grounds therein specified, and an order was duly entered denying such motion. From the judgment and order entered this appeal is taken.
From the way in which this case was submitted to the jury and from the nature and form of the verdict rendered, it is impossible to say upon which of the three grounds of attack upon the will that verdict was reached. If it were upon the ground of general testamentary incapacity of the testator, it is clearly against the weight of evidence. If it were on the ground of undue influence, there is not a syllable of evidence to support it. If it were upon the ground of insane delusions concerning his wife and children, we have, to say the least, grave doubt, in view of the relations continuously existing between the testator and the members of his family from the year 1885, whether the verdict can be sustained on that ground. But as the verdict may have been rendered on either of the three grounds upon which the will was assáiled, it should not be permitted to stand if either of those grounds was insufficient to
The issue sent to the jury on the subject of the general incapacity of the testator to make a will, is entirely independent of the other issues submitted to them. The real question was not whether the testator was competent to make the particular will sought to be invalidated, but whether at the time that instrument was executed he was capable of making any will at all. Both at the common law and under the statutes of the State of New York, there is a legal presumption that a testator is compos mentis. “ The only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis, or non compos mentis, as those terms are used in their fixed legal meaning,” and “ the burden of proof that he is non compos mentis rests on the party who alleges that an unnatural condition of mind existed in the testator.” (Delafield v. Parish, 25 N. Y. 10.) The only legitimate subject of inquiry, therefore, on this branch of the case, was as to the condition of the testator’s mind when he executed the will on the 24th of August, 1896, and the only testimony offered to indicate that he was not then of sound mind is that of Dr. Ferguson, who was the attending physician at the Post-Graduate Hospital while Alexander Buchanan was under treatment there. That testimony is only a deduction, in fact a retroacting opinion, based upon the condition of the testator while a patient in the hospital from the twenty-eighth of August, the day upon which he was admitted, until the first of September, the day on which he died. Dr. Ferguson testifies that his diagnosis of the case was that the disease from which the testator suffered was Bright’s disease; that he was in the latter stages of it and that it was his professional opinion that that condition or those conditions which he discovered must have lasted for weeks, if not for months, prior to the testator’s death. The condition of the testator while in the hospital was,
Concerning the issue of undue influence, there was, as said before, nothing whatever in the evidence that would justify a verdict for the plaintiff, and it was clearly error to refuse, as the trial justice did, a request made by counsel for the defendant Belsey (Foster) upon that subject. He asked the court to charge that there was no evidence in the case of any undue influence exercised upon the mind of Dr. Alexander Buchanan to induce him to make the will which he did make, and that there was no evidence in the case of any influence whatever exercised upon the mind of Dr. Alexander Buchanan to induce him to make the will he did make. The defendant was entitled to those instructions. “ When the evidence is, as a matter of law, insufficient to authorize a finding that the fact in issue is or is not established, it is the duty of the court to so instruct the jury.” (Burdick v. Freeman, 120 N. Y. 424.) Here there was nothing to indicate that there was any undue influence or in fact any influence exercised upon the testator when he executed this will. That undue influence which will invalidate a will must be such importunity or influence as will deprive the testator of the free exercise of his will. That definition given in Gardiner v. Gardiner (34 N. Y. 155) has been accepted as stating the true rule applicable to cases of this character, and it has been reiterated with some amplification or elaboration in Children's Aid Society v.
Concerning the issue of insane delusions operating upon the mind of the testator and inducing him to exclude his wife and daughters from a share in his estate, the evidence is in such a state that we are unable deliberately to say that it preponderates in favor of the plaintiff’s contention in that regard. If an insane delusion existed and can be traced into the will, of course it would invalidate that instrument; but that the provisions of the will are unjust or the result of passion or of unworthy or unjustifiable sentiments or of false information is not sufficient to invalidate it. (Clapp v. Fullerton, 34 N. Y. 190; Dobie v. Armstrong, 160 id. 584.) The relations between this testator and his wife and children were not only strained, but there is evidence to show that those persons were ungrateful to him. His leaving each of them merely a nominal
Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred;
Judgment and order reversed, new trial granted, costs to appellant to abide event.