1 Bradf. 360 | N.Y. Sur. Ct. | 1850
The decedent, a resident of Hew-York, died during a temporary sojourn at Saratoga Springs. He made his will among strangers, and entirely removed from any influences or circumstances, tending to exercise an undue control over his mind. The will was drawn by an accurate and careful lawyer, was executed in conformity to the necessary legal requisites, with as much deliberation, as comported with the circumstances of the case, and shortly after its execution the decedent died.
The probate of. the will is contested, on the ground of ' want of testamentary capacity and intention, at the time of its execution. The standard of capacity necessary to the performance of a valid testamentary act, is fixed by the law, in as precise terms as possible. Abstractly speaking, capacity or incapacity can, of necessity, be defined only by a general positive or negative expression ; smmdness or wnsound/ness of mind and memory. The judicial interpretation given to these terms, leads to the established proposition, that mere imbecility or weakness of understanding or memory, is not sufficient of itself, and apart from the particular act, to disable a person from disposing of his property by will; “ if he be not totally deprived of reason, he is the lawful disposer of his property.” (Stewart's Ex. vs. Lispenard, 26 Wend., 255; Blanchard vs. Nestle, 3 Denio., 37; Clarke vs. Sawyer, 2 Comstock, 498.) There is from the intrinsic difficulty of the subject dealt with,-—-the state and condition of the human mind,—frequent and great embarrassment in the application of this rule to particular cases. Perhaps no branch of judicial investigation requires so careful a consideration of facts, of the intelligence and opinions of witnesses, and the deductions to be drawn from human acts and conduct; and it often
But even when satisfied, that there existed sufficient general capacity to sustain a testamentary act, the adjudicating tribunal has frequently a difficult task remaining, to determine whether the weakness or infirmities of the decedent have exposed him to imposition; or whether in performing the particular act in question, he had an intelligent understanding of the contents and the effect of the instrument. As I have intimated, the idea of the decedent’s being the subject of imposition or undue influence at the time of the execution of this will, is entirely excluded by the evidence. He was surrounded by strangers, and there was no one there who had any interest in controlling or influencing his testamentary acts, or who attempted to direct his mind in favor of any particular persons.
The will was drawn at his own request, and the instructions in regard to the dispositions proposed, given by him to the counsel who prepared the instrument. There can be no doubt of the decedent’s general testamentary intention. He obviously meant to make a will, but whether he intended to make this particular will, whether his instructions were comprehended, whether they were correctly put in writing, whether when the will was read, he understood its contents, whether they conformed to his real wish, whether in fact this is his will, is to be determined only by a considerate examination of all the circumstances attending the transaction. Generally, the animus testcmdi is the natural and primary inference from the act of signing and formal publication. Formal execution is, as to this, the best, and in the majority of instances, the only ■ testimony. But in proportion to the weakness of the intellect the force of this presumption diminishes, and where the decedent is imbecile, though not incapable, facts may appear tending entirely to destroy it. The fadnim of
The decedent at the time of bis death possessed an estate, consisting of his store in Greenwich Street, which was leasehold property, his stock in trade and other personalty amounting altogether in value, to about $20,000, and some real estate in Williamsburgh, valued at $3000 or $4000. His mother and sisters were poor, but respectable people, dependent upon their own exertions, and upon the profits of a small confectionary store in Bleecker Street, which he had purchased for them, the better to enable them to contribute by their labor toward their own support. There is no- evidence as to the particular degree of intercourse between the deceased and this family, though it is possible, from the connection he had formed with Elizabeth Parker, named in this will, that their intimacy was not such as usually prevails between such near relations.
The connection between the decedent and Elizabeth Parker was illicit, and had been long continued. It was not only natural for him to make provision by will for the mother and child, who would otherwise have been left destitute ; but the criminal character of the ties which associated him with the mother, to say the least, certainly did not impair the moral obligation and duty of providing for his innocent offspring. Hor was it unreasonable for him to secure the comfort and welfare of the mother, after his decease, consistently with the natural claims of his own kin upon his bounty. It is apparent that such general intentions were present in his mind during his sickness, and led to anxiety in regard to a will. Mr. Lefevre, his intimate friend, whom he telegraphed to come from Hew-York,
In regard to the capacity of the deceased, the opinions of the witnesses are not uniform. Dr. HamEton, who was called in on Saturday evening, pronounces him “ idiotic,” but he is not sustained by the judgment of others, nor by the facts from which he drew that sweeping inference. Mr. Huling thinks he was competent, Sunday morning, when the subject of making a wEl was introduced ; and it is evident that as soon as the matter was spoken of, Lefevre was sent for, a lawyer summoned, and his attend
Let us see, then, how this is. The making a will appears from the first to have been the intention of the deceased. He spoke of it to his friend Lefevre, when he first saw him. And when the subject was renewed the day he died, both to Lefevre and Huling, as well as to Judge Bockes, he expressed his desire to provide for Elizabeth Parker and her child. Nor was he forgetful of his aged mother and his sisters, so that his intention to provide for all the persons named in the will is beyond a possible doubt. I was at first inclined to place stress upon the variation between the mode of disposing of his property, as stated by Huling from the conversation with Hr. Hill before Judge Bockes came, and that which the decedent adopted afterwards when the will was drawn. But Hr. Huling is doubtless mistaken in saying that the decedent told the Judge he wished the store in Greenwich street to go to Elizabeth Parker, and there is some confn
Í If this will is admitted to probate, therefore, there is j no remedy for the mistake in any other Court. This fact throws-upon me the greater responsibility in determining whether or not the mistake can be corrected here.
Part of a will may be established, and part refused probate, if incapacity, fraud, or imposition be shown at the time of the execution of the latter part. (Billinghurst vs. Vickers, 1 Phill., 187; Wood vs. Wood, Ibid., 357; Trimilestown vs. D’Alton, 1 Dow & Clark, 85.) If a particular clause has been inserted by fraud, without the knowledge of the testator, probate will be granted with the reservation of that clause. (Barton vs. Robins, 3 Phill., 455.) In such a case the will is engrossed without the clause, and so annexed to the probate. (1 Phill., 187, 357.) In The Goods of Shuttleworth, 1 Curteis, 911, the solicitor who drew the will in the presence of the decedent, described the executor and universal legatee by a wrong name in the will, and probate was granted to the executor in his proper name, upon consent of the parties interested. In Castell vs. Tagg, 1 Curt., 298, a legacy omitted by mistake in a will perfect on its face, was inserted in the will and made part thereof. The power to correct such errors has also been admitted in other instances. (Shadbolt vs. Waugh, 3. Hagg., 570; 2 Hagg., 537, 549; 1 Hagg., 678;
The following decree was entered:—
The citation in this matter having been duly issued, served and returned, such proceedings were thereupon had, that the proofs were duly taken, and after hearing counsel for all the parties appearing, and mature deliberation being thereupon had, it is decided, ordered, adjudged and decreed, that the instrument offered for probate in this matter is, and the same is hereby admitted to probate, as a valid will of the real and personal estate of the testator, except as to the legacies of the testator’s “ personal estate” therein mentioned, to Elizabeth Parker and her child Florence, which said legacies of said “ personal estate,” are admitted to probate as a part of said will, except as to the leasehold lot and premises of the said testator, known as number two hundred and eight Greenwich Street, in the
And it is further ordered, that the costs of all parties on the probate of said will and the Surrogate’s fees, be paid out of said estate.