3 Bradf. 107 | N.Y. Sur. Ct. | 1855
The decedent died without leaving issue, and his will is contested by a half-sister and several nieces and nephews. In the year 1845 Mr. Engle executed a will, wherein, after providing for his wife, he gave several legacies, from one to five hundred dollars,-among his relations and connections, and then devised the remainder of his estate in trust for the establishment of a free infant school.
The will now propounded for proof, and which was executed the day of his death, gives to his wife’s sister the use of his dwelling-house and furniture, and to several relatives of his wife, $3500; to the Society for the Relief of Indigent Females, $2500; to the Greene Street Methodist Church, $500, for the benefit of the poor; and the residue of his estate, except a house and lot on Broadway reserved for “ future disposition,” in trust during two lives, for the benefit of some fifteen relatives on his maternal side. At the expiration of the term the estate is to be divided among his heirs-at-law and
The decease of the testator’s wife, and the advice he received as to the invalidity of the first will, probably led to the revocation of that instrument, and the execution of a new will. The contestation on the ground of incapacity has, I think, entirely failed. Although in his eighty-fourth year of age, and enfeebled by disease, his faculties seem to have been unimpaired. The witnesses who testified to the contrary indicate no facts which satisfactorily shake this conclusion; while, on the other hand, there is evidence of the highest character in favor of his testamentary capacity. Mr. Lord, who was called in for the purpose of receiving instructions to draft the will, on the 25 th of February, 1854, had a long interview with him, in the course of which ample opportunity for judging of his mental vigor was afforded. We have the details of this conference in memoranda made by him at the time, from which it appears that the testator made a long statement of his property, and gave a list of his relatives and friends. The memorandum closes with these words: “ His mind and memory seemed wholly unimpaired.” Mr. Lord says he was “ careful to look into his entire capacity to make a will,” and “ the result was I had no hesitation in going on and drawing the old man’s will, whatever it might have been, being perfectly satisfied he possessed the requisite capacity.” It is to be observed that Mr. Lord advised the testator against the scheme of the charity contained in the first will, thinking, in consequence of the character of the proposed administration of it, that its object would not be well attained, and recommended him to dispose of his property among those having expectations from him, and those who had taken care of him.” The matter was not then decided upon, and a future meeting appointed having failed, owing to Mr. Lord’s sickness, other counsel was called in.
The will propounded for probate was drawn by William Lowerre, and executed by the testator March 15,1854, the same day that he died. Mr. Lowerre had several interviews
It seems to me that the only ground upon which the probate can be contested with any degree of plausibility, is the omission of the name of his half-sister, Mrs. McLean, among the legatees. If his memory was good, the omission was intentional or accidental. The mistake with regard to Shepard may perhaps raise a doubt whether similar errors might not have occurred in respect to other relatives. But as Shepard’s name appeared in another portion of the will, and even the accurate draftsman thought it had a place in the residuary clause, it is not clear that the omission was attributable to a loss of memory. Where there was so much general activity of mind and memory in other respects, it requires something more than mere conjecture to presume a failure of memory in regard to parties who think they ought to have had a place in the will. It is not unworthy of note, also, that the testator’s half-sister lived at a distance, and there is no other evidence of intercourse between them than a few letters, which are more profuse in expressions of affection than of any other substantial token. Hor is it to be forgotten that the Broadway property, a very valuable portion of his estate, is excepted from the operation of the will, and his sister not only inherits a portion there, but at the expiration of the trust estate as to the other property, her descendants will take a share in the residue in remainder, which by the terms of the devise will pass to his heirs-at-law and next of kin then living in the same manner as if he had died intestate. In view of the very satisfactory evidence as to the testator’s capacity, it is not for me to say that he did not esteem the interest which his sister and her children would take under these provisions, adequate, and that he omitted