1 Paige Ch. 171 | New York Court of Chancery | 1828
The appellants insist that the testator was incompetent to make a will, or if not wholly incompetent, that the same was procured by fraud and imposition, and by taking an undue advantage of his situation. Between fifty and sixty witnesses were examined to these questions by the different parties before the surrogate.
The general principles of law in relation to the capacity
Testing the case before me by these principles, it is satisfactorily established that at the commencement of the disease of John Fisher, there was a general derangement or destruction of the powers of his mind, so as wholly to incapacitate him to make a will. This is proved by the testimony of his attending physicians; of Robert Lowther, who was with him eleven months in the capacity of nurse; of Bishop Onderdonk, who made him pastoral visits for the purpose of administering spiritual consolation; of Gen. Bogardus, who went to see him several times on business; and of many others who were in habits of intimacy with him before his sickness and who continued to visit him until they supposed his disease incurable and his mind irretrievably gone. In opposition to this, a few persons, of very limited capacity to judge on such matters, testify that he was as capable of doing business during the whole of his sickness as he ever was before.
It being established that there was a general derangement or loss of the powers of mind for a very considerable period some time previous to the making of the will, the weight of proof was thrown upon the respondents to establish the fact that such incapacity had ceased at the time the will was executed. (Kinlock v. Palmer, 1 Const. R. S. C. 225. Lessee of Hoge v. Fisher, 1 Peters’ C. C. R. 163. Attorney-General v. Parnther, 3 Bro. Ch. R. 443. Swinburne on Wills, part 2, sec. 3. Turner v. Turner, 1 Little’s R. 102. Jackson v. Van Duezen, 5 John R. 159. Case of Cochrane’s will. 1 Munroe’s R. 263.)
* After the first year of his disease, very few of those persons who had known and associated with him previous to Ms sickness, and who alone were capable of comparing his mind in its diseased state with what it was before, visited Ms house. Among the witnesses who did see him during the last three years of Ms life there is a very great contrariety of opinion as to the situation of Ms mind, and even as to the state of his corporeal faculties. I think the weight of testimony is that in the summer of 1826 his mental and corporeal powers were in a more vigorous state than they had been during the first two years of his sickness. The testimony of Dr. Watts, in particular, shows that he could then converse intelligibly; and certainly he exhibited considerable strength of memory in relation to the papers of Lord Sterling. That circumstance, though strongly in favor of Ms mental capacity at that time, is not conclusive. It frequently happens that some particular circumstance has made a strong impression upon the mind of an individual, and has been thought over so often that the memory on that subject becomes in a measure mechanical; and whenever one link in the chain of circumstances is touched, the whole subject again passes through the mind. Hence it sometimes happens in second cMldhood, when all traces of recent events have become completely effaced from the memory, the bare mention of some occurrence wMch made a strong impression upon the mind of the individual in early life, will bring the whole subject distinctly to his recollection; and he will be able to detail every circumstance with the most minute exactness. I am, therefore, not perfectly satisfied, considering the nature of the disease under wMch Fisher was laboring, that even at that time he was of sufficient capacity to dispose of Ms property by will with sense and judgment.
Whatever may have been his situation in the summer of 1826, there are still stronger reasons to doubt his capacity in May, 1827, when the will was executed. He was not then in a situation to make himself understood by the person who drew it, even in reply to questions put directly to him. The will was drawn under the direction of the wife,
But if it were doubtful whether the testator’s mind was so far impaired as to render him incapable of making a valid will, there cannot be á question that it was so much weakened, and rendered so imbecile by disease, as to make him an easy dupe to the arts and intrigues of those by whom he was surrounded. Whenever a person in that situation is induced by fraud, imposition, or undue influence to make á testamentary disposition of his property differently from what he would in the full possession of his faculties, the same will be set aside, Upon the same principle that a court of chancery sets aside á conveyance of property obtained under' like circumstances.
Surrogates having exclusive jurisdiction in relation to the proof of wills of personal property, they must of necessity determine all questions of fraud, imposition, and undue influence in procuring such wills, as well as the general question relative to the capacity of the testator. (Kerrich v. Bransby, 3 Bro. P. C. 358; Bennet v. Vade, 2 Atk. R. 324; Archer v. Mosse, 2 Vern. 8; McDowell v. Peyton, 2 Desaus, 313; 1 Roberts on Wills, 30.)
In the case of the will of Edward Campion, a court of delegates, consisting of some of the most distinguished judges and civilians in England, set the will aside on the
Applying the principles of these cases, and the doctrine held by the Court of Errors in Whelan v. Whelan, (3 Cow. R. 537,) to the circumstances disclosed by the testimony before the surrogate, this will must be set aside, as unduly obtained by taking advantage of the situation and infirmities of this bed-rid, paralytic old man, by which a different disposition was made of his property from that which would otherwise have taken place. The testimony of Robert Lowther shows, that immediately after the death of the first Mrs. Fisher, her relations commenced a system of intrigue and management for the purpose of getting the control of the person and property of the testator. For this purpose his niece, who had been in the habit of visiting him previously, was virtually excluded from the house;
On either of the grounds taken by the appellant’s counsel, I am satisfied the sentence and decree of the surrogate, allowing the instrument propounded as the last will and testament of John Fisher and admitting the same to pro' bate, was erroneous; and the same must be reversed.
Lord Kenyon, in addressing the jury in Greenway v. Greenway, 3 Curtiss, said—“ I take it a mind and memory competent to dispose of his (the testator’s) property, when it is a little explained may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had the power of summoning up his mind so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.” As to the standard of mental capacity requisite, see Verplanck, Senator, in Stewart v. Lispenard, 26 Wen. 255, 306, 311, 312; Blanchard v. Nestle, 3 Denio, 37; Comstock v. Hadlyme, 8 Conn. 265; Kinne v. Kinne, 9 Conn. 105; Kachline v. Clark, 4 Wharton, 320.
To revoke a will requires the same capacity as to make one. Smith v. Wait, 4 Barb. S. C. R. 28. Exposition of the doctrme of monomama and partial insanity, as applied to wills, see Waring v. Waring, 6 Moore, 341, S. C. 6, Jur. 947.