1 Redf. 1 | N.Y. Sur. Ct. | 1857
Lead Opinion
(delivering the' opinion of the Court of Appeals), says: “ Regarding as I do the cases of Stewart v. Lispenard, and Blanchard v. Nestle, as fixing the standard of testable capacity at any given point above that of the idiot and lunatic, the will cannot be declared void for the want of a sound disposing mind.” (Clarke v. Sawyer, 2 N. Y. [2 Comst.], 498.)
See the observations of Senator Verplanck on the speculative question, whether' the right of disposing of property after death flows from positive law and the policy of society, or is a part of the natural right of property, agreeing with Lord Mansfield (Windham v. Chetwynd, 1 Burr., 414), that “ the power of willing naturally follows the right of property.” (Remsen v. Brinckerhoff, 26 Wend., 333; Stewart v. Lispenard, Id., 255, 296-7.)
“ A few affirmative facts showing-understanding, however humble, must, in such an inquiry, directed to the point "of idiocy or total want of reason (not of lunacy, or disturbed or clouded intellect), outweigh very many negative facts. The affirmative facts prove the existence of mind; and when that is once shown, the negative go to show only its defects and weakness, not its entire deprivation. According to the old rule, 6 a wise man does not always show reason, a fool never does.’ ” (Senator Verplanck, in Stewart v. Lispenard, 26 Wend., 310.)
“ Mere feebleness of intellect, however considerable, in a testator, will not invalidate a will.”
“The cases certainly establish the rule that feebleness of intellect, however considerable, in the testator, shall not invalidate a will.”
“ The reason for sustaining the wills of excessively weak
The dissenting' opinion of Mr. Justice Gierke in Thompson v. Thompson, is the only judicial criticism (to be found in our reports) in disparagement of the firm rule of our statutes and decisions on the subject of testamentary capacity. A careful perusal, however, of this well-considered opinion, will show that, after all, the learned judge is disposed to rest the legal consequences of imbecility, or unsoundness of mind, falling short of idiocy or lunacy (the case under consideration being one of alleged aberration of mind), more upon its leaving its subject “ very much to the mercy of designing persons, and exposed to undue influence,” and to approve Senator Verplanck’s proposition (in Stewart v. Lispenard), that though this condition does not destroy testable capacity, it inay, in connection with other evidence, show that the particular .testamentary act “ was the result of fraud, and of abuse of confidence, perhaps of delusion.” (Judge Clerke’s opinion [dissenting,] Thompson v. Thompson, 21 Barb., 107, 127.)
The rules of our law on the subject of undue 'influence, in connection with testamentary acts, are—
1. That it must come to the substantial texture of fraud or coercion in the procurement of the testamentary acts questioned, to be recognized in the law as undue influence.
2. That it must be proved by the party contesting the testamentary act on that ground ; and the exclusion of any such
These propositions have never been brought into question; but a brief citation from two cases, to be more specially referred to in another connection, is given.
“In the absence of any inconsistency between the provisions of a will and the declarations of a testator otherwise expressed, or of any affirmative evidence of fraud or undue influence, the court will not speculate as to the motives of the testator, nor, upon mere suspicion, presume procuration by artifice or undue means.”
“ It is sufficient, in the absence of proven fraud or undue influence, and where the requisite capacity exists, to stand by the will. If its provisions be grossly unreasonable or absurd, or opposed to the ascertained dispositions and affections of the party, these circumstances, if shown,'may be of importance, as they reflect upon the question of capacity; but a person of competent mind ‘ is the disposer of his own property, and his will stands as a reason for his acts.’” (Bleecker v. Lynch, 1 Bradf., 458, 472.)
“Influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence either by coercion or by fraud.”
“ It is, however, extremely difficult to state, in the abstract, •what acts will constitute undue influence in questions of this nature. It is sufficient to say that, allowing a fair latitude of construction, they must range themselves under one or the other of these heads- — coercion or fraud.”
“ One point, however, is beyond dispute, and that is, that whenever it has been proved that a will has been executed with due solemnities, by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is in the party who alleges it.” (Lord Ch. Cranworth, in Colclough v. Boyse, 6 House of Lords Cases, 45; London Jurist, May, 1857, 373.)
All that relates to the formal authentication of testamentary papers, — all that constitutes the “ factum” of a will as a
“ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
“ 1. It shall be subscribed by the testator at the end of the the will;
“ 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses;
“ 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament;
“4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.”
“ Ho will in writing, except in the^cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated, or destroyed, &c.” (2 Rev. Stat., 68, §§ 40, 42.)
As no one of these statutory requisites to validity can be dispensed with, so no further requisites of authentication of the instrument propounded as the very will of the testator, can be insisted upon.
The “ declaration of the testator to the witnesses that the instrument is his last will and testament, is plenary evidence, by the statute, that it is so known, understood, and intended by him to be. Ho other evidence to this point can supply the want of this — the want of further evidence can, in no case, disparage the effect of this.” (Remsen v. Brinkerhoff, 26 Wend., 345.)
First. On the point of testamentary capacity, the proponent contends that Henry Parish, at the time of the execution of each of the codicils in dispute, was neither “ an idiot,” nor “of unsound mind,” hut, on the contrary, “ of sound mind and .memory.” That the bodily disorder, disease, and disability of Mr. Parish, at the times in question, did not affect his testamentary capacity, and are, themselves, the sole and the adequate cause of the appearances which are insisted upon in disparagement of his mental capacity.
On this point the contestants, Daniel and James Parish, are understood to contend that Mr. Parish, at the times in question, was “an'idiot,” incapable of any testamentary act.
Second. On the point of undue influence, or procurement of the codicils in question by fraud or coercion, the propqnent, contends that such influence not only did not exist and has not been proved, but that no particle of proof has been produced tending to show any such influence.
On this point the contestants, Daniel and James Parish, are not understood to contend that any undue influence was exercised over, or upon, Mr. Parish, and so to contend would be fatal to their proposition that he was an idiot, having no testable capacity. But they contend that the codicils in question proceeded wholly from the will and invention of Mrs. Parish, and that all the apparent or alleged intervention of Mr. Parish in the testamentary acts was that of a mere puppet, set up and moved by her.
Third. On the “factum,” or execution and authentication of the codicils in question, no controversy is made.
It will be perceived, then, that the contestation of fact, on the part of the contestants, Daniel Parish and James Parish, is reduced to the proposition that, from the date of the apoplectic blow of July, 1849, the testator was in a condition of idiocy, totally incapable of any testamentary act.
2. It removes the element of uncertainty, misconception, and error, which intervenes in a survey of facts and a comparison of opinions, produced by different observers at different times, of varying moods and fluctuating conditions which belong to the nicer cases of insanity, partial, interrupted, mental, or moral. Here, a continuous, uniform, and well-defined state of mind (or no mind) is in controversy. If he was an idiot when one witness saw him, he was an idiot when each witness saw him.
3. It excludes all claim or argument of undue influence, of which it is the essence that a testable capacity and volition are controlled, in the form of force or fraud, by another’s volition.
4. It puts the issue upon a point of observation, capable of determination, if there. were observers, other than idiots, to give the means of determination.
Thus Judge Clerke says of the characteristics of idiocy: “ It is a congenital obliteration of the chief mental powers, amounting to a great insensibility to external impressions, accompanied by certain physical indications which can never be misinterpreted; indications which proclaim the torpor of the faculties within with as unerring certainty as the rolling eye and staggering gait proclaim the drunkard, or the pallid and hollow cheek the victim of' disease.” (Thompson v. Thompson, 21 Barb., 107, 120.)
The learned judge speaks of “congenital” idiocy, but no distinction as to the indicia of the state can be, or was intended to be, taken between congenital or supervening (or acquired) idiocy.
This broad and open proposition, in the face of the overwhelming testimony of the numerous and intelligent observers to whose scrutiny Mr. Parish was subjected, and
1. Thus, if intelligence in the testator were admitted into his argument, and so the testimony left to its natural force, according to its plain sense, the degree of intelligence is manifestly either normal or undistinguishable therefrom by any measure of reduction.
2. The testator, standing as an intelligent agent, to maintain the proposition of “ undue influence” upon the evidence, would appal the most intrepid reasoner.
3. To predicate “ inofficiousness” of testamentary dispositions in favor of a wife, in such conjugal relations as are shown, in preference to collateral kindred, in such relations as are shown, would be, in terms, absurd.
4. With intelligence, without undue influence, a testament, not inofficious, requires but the formal proofs to establish the ‘■'■factum}'' to secure its probate. These are incontestable.
In escaping these insurmountable difficulties, the contestants’ counsel braves others, some of which may be noticed.
1. If Mr. Parish were an idiot for seven years, and the counsel can satisfy a judicial inquiry of that fact, Mrs. Parish must have known it through the whole period.
2. Instead, therefore, of proving overweening influence over her husband as the fault or fraud of Mrs. Parish, and this, too, in the particular acts only of the making of the codicils, and this, besides, only committed against the contestants, the proof of the idiocy of Mr. Parish includes the proof of the sudden and universal depravity of Mrs. Parish— making every act and motion of her life a falsehood — every
' 3. By the same necessity the proof must compass the complete overthrow of the whole body of the testimony in the sense in which it was given by tire witnesses, to the absolute prostration of their virtue and their reason, and in mere derision of all that is “ wisest, discreetest, virtuousest, best,” in the society in which we all live.
Thus, tó prove that the apoplectic blow which afflicted the body of Henry Parish overthrew his mind, the counsel, as his best and most probable theory, undertakes to prove that it crushed the moral nature of his wife, and with unspent force promiscuously dispersed, embraced in its catastrophe all those who stood about them.
This is, indeed, the proof of “ ignotum per ignotiui’ — of “ difficile per difficilius” — of the improbable by the impossible. •
The proponent maintains, on these points, these propositions :
First. — Mr. Parish, at the dates of the execution of the several codicils, possessed full testamentary capacity upon any rule or measure that can be claimed.
I. This appears sufficiently from the evidence given by the documentary witnesses to the respective codicils. Their intelligence, character, acquaintance with testator, means of judgment, opportunities of observation, and entire independence, give to their evidence irresistible weight.
II. The witnesses for the contestants, so far from showing deficiency of testamentary capacity, prove its adequacy.
. III. The evidence in support of the documentary witnesses is overwhelming in amount, in weight, in intelligence, in character, in independence, in variety, in opportunities of judging, and in the faculties of measuring and scrutinizing the operations of mind.
TpiRD. — The codicils were not obtained by undue influence — i. e., by either coercion or fraud in any form.
I. As to the first codicil, there can be no pretence of influence by habit or system; there is certainly no evidence of actual influence.
II. The second and third codicils were made at periods in the course of the testator’s health, when he was at the highest ■vigor. There is no evidence of influence in respect of either of them.
Fourth. — The secondary evidence of influence, viz., of a seclusion of the person of the testator, or an exclusion of other probable or natural objects of affection or testamentary care, is wholly wanting in the case. The evidence shows the utmost publicity of life, and unimpeded access to the testator on the part of the contestants. James never sought any intercourse of any kind. Daniel made for himself the only obstacles to a welcome at the house. He had abundant opportunities of intercourse with his brother out of the house, but never availed of any. Exclusion, to be an element in such a case, must be systematic, substantial, and against efforts to gain access. A mere fanciful, sentimental, or conventional exclusion, if any proof of such could be found, is
Fifth. — Undue influence is not predicable of a testamentary provision in favor of the wife, filling for the whole period of their married life, and more than a quarter of a century, the true conjugal relation, and in preference not over children, not in the disregard of needy relatives, not in disappointment of any expectations authorized or encouraged, but of one brother in independent circumstances, who maintained no acquaintance with him, and of another of abundant wealth.
Sixth. — The codicils are not inofficious testamentary dispositions, not diversions from any previous testamentary purposes, and not inharmonious with any expressed or proved affections or intentions; but, on the contrary, they are officious,- in union with previous testamentary dispositions, conformed to expressed and proved affections and intentions.
Of the teub weight and impoet of physiological and MEDICAL VIEWS BEARING, OB SUPPOSED TO BEAR, UPON THE PROBABILITIES, OB INFERENCES, AS TO THE CONDITION OF ME. PARISH’S MIND, FROM HIS BODILT DISORDERS.
The contestants might, under the rules of evidence governing such cases, have offered medical witnesses, in the character of experts, to speak upon the case presented by the evidence as to the physical condition of Hr. Parish, upon the-question of the probable or inferable condition of his mind. As the contestants’ views find no support in the “ opinions” of the six medical witnesses examined in the case, and who are entitled to speak in the double capacity of observers and of experts, it would seem important to them to have brought this ancillary evidence of experts, if they could find it, or if they esteemed it significant. Their omission to bring the evidence of experts, then, must be put to the account of its not being obtainable, or not being, useful. Instead of intro
First. To supply such special knowledge concerning the bodily diseases of apoplexy and paralysis, as will show their relation to the nervous and cerebral system, and aid in the discrimination between physical and mental derangement, as the cause and explanation of the significant appearances in Mr. Parish’s life and conduct, during the period involved in this controversy.
Second. To exhibit, by proofs drawn from the results of medical experience and science, the fundamental truth, that the diseases of apoplexy and paralysis (and whatever others, if any, are imputed to Mr. Parish), are bodily diseases in cause, seat, character, and treatment; that whether mental derangement or debility attends them or flows from them, is an inquiry original and special to each case under observation, and to be answered by a scrutiny applied to the mind and its manifestations; that this mental scrutiny and investigation are governed by the same rules as if the bodily disorders were not present, save only that the derangement and debility which are accounted for as simply affections of the physical frame are to be as absolutely excepted from the mental phenomena and conclusions as if the forms of disease were fever, or gout, or dyspepsia. In other words, that whether a" paralytic’s mind is affected, is an inquiry of the same nature, and to be satisfied in the same manner, as the same inquiry in respect of a man in bodily health or in any other bodily sickness. The universal testimony of medical science and medical authorities shows, that the observation and judgment, concerning the integrity or deterioration of the mental faculties in a patient afflicted with the diseases in question, are as much a matter of direct investigation, applied
It follows, necessarily, that all' correction or modification of an estimate concerning the state of the intellect of a patient formed upon observations in life, by anatomical or physiological investigation post mortem, is rejected by medical as well as by judicial reasons. Hen tal traits and action observed in life, if they show a rational condition, can never change .their character by a post mortem exploration of disintegration or degeneration of the brain, any more than the motion of the limb or .the function of digestion observed in life, can be displaced by an autopsy of the brain.
So, on the other hand, mental disorder or debility, manifested in life, could never be made mental integrity and vigor by the explorations of anatomy disclosing no adequate cerebral defect, any more than the motion of a limb or the use of a sense, lost in life, would be proved to have been healthful and sound, from no trace appearing of lesion or atrophy of the appropriate nervous or cerebral structure.
The whole method of inductive reason rests upon these principles. The arguments of experts, if any shall be introduced by the contestants, must leave the matter just where they find it; to wit, that no generalizations from the cases of paralysis can show what the state of Hr. Parish’s mind was, but that the observations of those who saw him must furnish the means of judgment. That being established, the weight
James T. Beady and Charles O’Cohoe, . for Oontestahts James and Darnel PamsTi.
Henry Parish, the testator, was a wealthy and respectable Hew York merchant, of competent education and high intelligence. In September, 1842, he made his will, arranging its details in numerous private consultations with Charles G. Havens, Esq., one of the law firm usually employed by him. He was then aged fifty-four years, and had finally retired from business; his wife was aged thirty-seven. They had been then married thirteen years. There never was any issue of the marriage. His estate was then about $732,000. His collaterals were his brother, James Parish, then having six children; his brother, Daniel Parish, then having seven children; his sister, Ann Parish, unmarried, and aged fifty-two years, and his sister, Mrs. A. M. Sherman, having one child.
The dispositions of the will are as follows : he gave to his wife $331,000 ; to his nephew, Henry Parish, the son of his brother Daniel, $35,000 ; to his cousin and namesake, Henry Parish Kernochan, $20,000 ; to his namesake, Henry Parish Conrey, of Hew Orleans, $5,000 ; to his two sisters, Miss Haney Parish, and Mrs. Allen M. Sherman, $20,000 each ; to Mrs. Payne, his wife’s aunt, an annuity valued at $5,000 ; to each of his five executors, as a personal gift, $10,000, making a total of $486,000.
- If his estate should prove sufficient, he further gave a legacy of $10,000 to the seven children of his brother Daniel; to the six children, of his brother James; to his cousins, Mrs. Joseph Kernochan and Mrs. Abeel; to his brothers-in-law, Dr. Edward Delafield and Major Richard Delafield; and
On July 19, 1849, at mid-day, while transacting business in Wall-street, the testator was suddenly stricken down by an apoplectic stroke. This produced hemiplegia on the right side — a permanent disability. According to our view of the evidence, this seizure affected the brain so seriously that the testator was immediately reduced to a state of idiotic dementia, from which mental condition he never recovered in any degree whatever. He survived the event more than six years. His general bodily health was completely restored, his appetite for food returned in its full vigor, he had the full use of one eye and the perfect use of the left arm and hand ; yet he never was able, during all this time, to write, to read, to distinguish one figure or one letter of the alphabet from another, to utter one word, or to give one single reliable indication of intelligence or intention higher in grade 'than such as are exhibited by animals of the dullest species. Of course, he performed no business or other transactions. During all this time he was in the custody of his wife, by whom the residuary legatees were denied access to him. Every transaction concerning his business or property was conducted without any participation on his own part; and nearly every such transaction was controlled and directed by his wife and her agents. Gradually, and as rapidly as practicable, she transferred his personal estate into her own name ; and, at his decease, she claimed nearly the whole of it, on pretence that this continuous succession of transfers to her name constituted so many gifts inter vivas. The first codicil dated August 29, 1849, gave to the wife his newly acquired real estate, worth about $200,000. The second codicil executed September 15, 1853, gave her the same real estate over again, and about $350,000 worth of stocks, &c. It
These codicils were dictated by the wife, drawn on her retainer by her counsel, and each was executed by a mark. In fact these marks were all made by the wife’s counsel. He placed the pen in the testator’s left hand, which was perfectly sound, well, and strong; he then drew that hand to the appropriate places; and there, guiding the movement of the pen himself, he, the counsel, made the marks which áre alleged to be the testator’s subscriptions. The case might be said to present complete proof of undue influence and of fraud, and of coercion, buk that one important and indispensable ingredient of such a case is lacking. The testator was in so low a state of idiocy, that, he was incapable of being influenced, deceived, or coerced. The disputed codicils are not his acts.
Fibst Point. The testator had not capacity to make a testament at any time subsequent to his apoplectic seizure' on the 19th of July, 1819.
I. The condition denominated idiocy in the Statute of Wills is not necessarily congenital. It may be produced by reduction of power in the material organ of thought or mind, through natural decay, the gradual operation of disease, or sudden violence. (Swinburne, part 2, § 5; De Witt v. Barley, 17 N. Y., 350.)
II. It is not necessary to the existence of the state denominated idiocy, that there should be a total absence of perception, memory, or even of reason. Idiocy has never been defined, and never can be; it is a condition which no power of language can adequately describe, although illustrations of its existence may easily be presented. It is a state of mind which may differ from the most perfect mental integrity, only in the degree of power present. Every descrip
1. One who could count five, and no further, would show some understanding,' yet he would in law be esteemed an idiot. (Swinburne, part 2, § 4; Den v. Johnson, 2 Southard, 454; Den v. Van Cleve, 2 Id., 589, 661.)
2. One who at a testable age should possess all the knowledge and capacity of a child three years old — and this is considerable — would be esteemed an idiot. (Swinburne, part 2, § 4; Shropshire v. Reno, 5 J. J. Marsh., 91; Walworth, Ch., in 26 Wend., 290,291; Howard v. Coke, 7 B. Mun., 655.)
3. The Cretins of the Alps are called idiots in the works which treat of them. They perform all the functions of ani
III. The opinion of Senator Verplanck, in the case of Alice Lispenard’s. Will (26 Wend., 296), is sometimes referred to as determining that testamentary capacity exists, if there be any mind. This leaves it to be ascertained whether there be any mind; and this, of course, involves the inquiry, what is mind ? Consequently the opinion concludes nothing, and leaves the law as it stood before.
The opinion of a single senator in that court cannot always be deemed an authoritative exposition of the law, even though no other be delivered, and though judgment be according to its conclusion. It was really the decision of a question of fact and not of law.
TV. The onus probandi that the testator was possessed of sufficient mental capacity, is on the party propounding an alleged testamentary paper. If, after all the evidence is in and due consideration is had, the mind of the court is in equilibrio, the paper must be rejected. (Barry v. Butlin, 1 Curteis, 637; 2 Moore’s Privy Council Cases, 480; Broming v. Budd, 6 Id., 430; Panton v. Williams, 2 Curt., 530; 2 Notes of Cases Supplemental, 21,29; Baker v. Batt, 2 Moore P. C., 317; Crowninshield v. Crowninshidd, 2 Gray, 527; Comstock v. Hadlyme, Soc. 8 Conn., 254; Gerrish v. Nason, 22 Maine, 438; Cilley v. Cilley, 34 Id., 162; Wallis v. Hodgeson, 2 Atk., 56; 1 Powell on Devises, Jarman’s ed., 81.)
Second Point. If it could be presumed that the testator had testamentary capacity at the times when the marks ■alleged to be his own' were affixed to the codicils, the evidence would exhibit all the features of undue influence, fraud, and coercion to be found in that unfortunately familiar .class of cases.
I. The professional gentleman who drew the instrument, being the agent of Mrs. Parish, and all his little intercourse with the testator being in her presence, arid under her super-'
II. All persons but her own friends being excluded, and the testator being completely subject to the will and pleasure of Mrs. Parish for the gratification of his only known desires, i. e., food and drink, he must be regarded as not having been a free agent. (Swinburne, 998, part 7, § 18; Blewett v. Blewett, 4 Hagg., 410; Marsh v. Tyrrell, 2 Id., 84.)
HI. There is a total absence of proof that, in reference to these codicils, there existed spontaneity or even volition. The testator merely yielded to irresistible importunity or force. .(1 Fonblanque's Equity, 6, Am. ed., 1807; 8 Viner's Ab., 167, tit. Devise, Z, 2 pl. 7, a. d. 1791; Swinburne on Wills, part 2, § 25; Green v. Skipworth, 1 Phill., 53; Billinghurst v. Vickers, Id., 187; Harwood v. Baker, 3 Moore P. C., 282; Lamkin v. Babb, 1 Swinburne on Wills, § 1; Id., part 7, § 4; Hacker v. Newborn, Styles, 427; Mountain v. Bennett, 1 Cox, 353, 355.)
IY. In the alleged gifts invter vivas and the repetitions of the testamentary grants obtained, we may discern that duplicity in title-making which frequently characterizes this description of fraud. (Vreeland v. McClelland, 1 Bradf., 393,431; Middletown v. Forbes, cited in 1 Hagg., 395; Welles v. Middletown, 1 Cox, 112; 4 Bro. P. C., Toml. ed., 245; Bennett v. Vade, 2 Atk., 324.)
Counsel for the contestants presented, also, certain references to authorities, arranged under the following three heads:
The same rule was declared and ably vindicated, by the Supreme Court of Massachusetts, in Crowninshield v. Crowninshield (2 Gray, 526).1 It was there held, that the burden of proving the sanity of a testator is upon him who offers the will for probate, and does not shift, upon evidence of his sanity being given by the subscribing witnesses. This case, at p. 530, overrules what is said in Brooks v. Barrett (7 Pick., 99).
In Gerrish v. Nason (22 Maine, 438), Whitman, C. J., says : “ The presumption that the person making a will was at the time sane, is not the same as in the case of the making of other instruments ; but the sanity must be proved.” In Cilley v. Cilley (34 Maine, 162), Rice, J., said “ that the burden is upon the appellant to show that the testator was not of sound mind at the time the instrument was executed, if he would set it aside as invalid for that cause.”
In Wallis v. Hodgeson (2 Atk., 56), Lord Hardwicks said: “ It had been determined over and over in .this court, that you must show the person to be of sound and disposing mind, when a will is to be established as to real estate, and especially if there are infants in the case ; proving it to be well executed, according to the statute of frauds and perjuries, is not sufficient.” (Powell on Devises, Jarm. ed., 81.)
The rule as to the onus may be illustrated by other cases. In Powers v. Russell (13 Pick., 69), it was held, that where the proof on both sides applies to one and the same issue or proposition of fact, the party whose case requires the establishment of such fact, has all along the burden of proof, although the weight in either scale may at times prepon der-* ate. But where he gives jprima-facie evidence of such fact, and the adverse party, instead of producing proof to negative the same fact, proposes to show another and distinct propo
In Tourtellot v. Rosebrook (11 Met., 460), in an action to recover damages caused by a fire communicated to the plaintiff’s land from a coal-pit which the defendant lawfully set on fire upon his own land, it was held that the burden of proving the defendant’s negligence was upon the plaintiff, and primarfacie proof of the defendant’s negligence does not throw upon him the burden of disproving it.
In Delano v. Bartlett (6 Cush., 364), it was held, that where a want of consideration is relied on in defence to an action on a promissory note; and evidence is given on the one side in the affirmative, and on the other in the negative, of the fact of consideration; the burden of proof is on the plaintiff to satisfy the jury, upon the whole evidence of that fact. (S. P., Sperry v. Wilcox, 1 Met., 267.)
There are dicta, and some decisions in this country, which declare a different doctrine as to the burden of proof from that asserted in the authorities above cited. But there is no opposing decision in which the question has been deliberately examined‘in the light of the decisions cited above. There are also occasional dicta in the ecclesiastical courts, which have sometimes been supposed to be inconsistent with the rule above stated; but, properly understood, those dicta do not conflict with the cases cited. The rule stated above was acted on in Newhouse v. Godwin (17 Barb., 236).
II. Competency to execute a testament does not exist unless the alleged testator had reason and understanding sufficient to comprehend such an act.
Opposed to the long line of authorities cited under our first point (ante, 38, 39) which establish this rule, is the opinion of Senator Verplanck in Stewart v. Lispenard (26 Wend., 255).
It is remarkable that the learned senator cites not a single authority relating to testamentary capacity, which supports the standard adopted by him. A large portion of the dicta
If Hr. Yerplanck’s opinion could be thought to contain an authoritative enunciation of the law, it is so grossly and mischievously erroneous that it ought to be departed from. It may thus be stated: If mind exist at all, and it be not disordered in its scarcely perceptible manifestations, the individual thus gifted has testable capacity. This is not yet an axiom, nor a landmark of property.
In Blanchard v. Nestle (3 Den., 37), the then recently promulgated opinion of Senator Yerplanck was given to the jury, and the court in banc, per Jewett, J., concurred. At the same term1 the court, in Osterhout v. Shoemaker (3 Den., 37, note), laid down the same doctrine as to a deed. These judgments are rather instances of obedience to what may have been mistakenly considered paramount authority, of a recent date, than acts of concurrence by judicial persons.
Some additional light, beyond the report of Mr. Wendell, touching this celebrated case, may be found in the Mew York Courier and Enquirer, of April 7, 1842, where an opinion by the Hon. Henry A. Livingston, one of the senators who voted with the majority, is reported.
HI. Where testable capacity is doubtful, or, being established, is of a very low grade, the paper propounded as a testament will be rejected, unless the evidence fully establishes the fairness of the transaction, and shows satisfactorily that the decedent really exercised a free and unrestrained volition. (Cockraft v. Rawles, 4 Notes of Cases, 237; Swinburne, part 2, § 25; Green v. Skipworth, 1 Phill., 53; Middleton v. Forbes, 1 Hagg., 395; Jones v. Godrich, 5 Moore P. C., 9; Montefiore v. Montefiore, 2 Addams, 354; Brouncker v. Brouncker, 2 Phill., 57; Mynn v. Robinson, 2 Hagg., 179; Evans v. Knight, 1 Addams, 237; Harwood v. Baker, 3 Moore P. C., 282; Mountain v. Bennett, 1 Cox, 353; Marsh v. Tyrrell, 2 Hagg., 84.)
Henry Parish died March 2d, 1856, leaving a widow, Susan M. Parish, two brothers, Daniel and James Parish, and two sisters, Anne Parish and Martha Sherman. He left no children. On the 20th of September, 1842, he made a will. In July, 1849, he was stricken with paralysis, and remained speechless for the rest of his life, except the occasional utterance of one or. two words. His right side was paralyzed. The muscles of his face soon recovered from the attack, the right leg partially recovered, but the right arm remained affected until his death. And for the residue of his life, viz., from July, 1849, to March, 1856, for a period of about seven years, he communicated thought only by gesticulation, by his countenance, and by sounds indicating yes and no, or assent and dissent. During that period he executed three codicils to his will:
One on the 29th August, 1849 (which was re-executed on the 17th December, 1849); one on the 15th September, 1853; and one on the 15th June, 1854. The chief effect of these codicils was to change the disposition of his estate from his brothers to his wife.
By the will he gave his brother Daniel a specific legacy of $10,000, as an executor, and gave the residuum of his estate, which he valued at about $40,000, to his two brothers. By his codicils, besides specific devises to his wife, he gave her the residuum, revoking the specific bequest of $10,000 to Daniel and the devise of the residuum to the two brothers.
By his will he made thirty-three specific devises, or bequests (besides the residuum). By his codicils he revoked none of those, except the $10,000 .to his brother Daniel, but he added four bequests to charitable uses, amounting to $50,000. By his will (in September, 1842), he gave to his wife real and personal property estimated by him to be worth $331,000.
By his first codicil (in August, 1849), having in the mean time sold his" dwelling and furniture in Barclay-street, which
The furniture in which had by that time come to be worth .......... 50,000
And a store in Wall-street, which he had bought in 1847, and was valued at ....... 70,000
Making a total, by that codicil, of ... $230,000
By the second codicil (in September, 1853), he confirmed ' the devises in the first, and, in addition, gave to his wife, in personal property, at par value.......$349,460
And made four charitable gifts for..... 50,000
Making a total by that codicil .... $399,460
. By the third codicil (in June, 1854), he devised the whole residue of his estate to his wife, which residue, at the time of his death, was worth...........$221,454
This residuum is arrived at in the following manner:
At his death his whole estate was:
In hands of special administrator......$452,950
Invested in Mrs. P.’s name........619,964
Eeal estate, viz.:
In the will, after deducting Barclay-street property..........$163,000
In the first codicil ....... 230,000
-- 393,000
Total of his estate $1,465,914
Specific legacies were by the will $690,000
Deducting lapsed and revoked legacies . "...... 75,000
-615,000
By the first codicil ...... . 230,000
By the second codicil.......• 399,460
-:-$1,244,460
Leaving for the residuum $221,454
Thus, under the will—
The wife would have received.......$331,000
The specific legacies (deducting for those lapsed by death)..............424,000
The brothers would have got the residuum at. . 710,914
Making the total of........$1,465,914
Under the codicils—
The specific legacies would have been as above. $424,000
The specific legacies for charities ..... 50,000
The wife would have got the residuum at (besides the chances of increase before mentioned) . . 991,914
Making the total ........$1,465,914
In the latter event, the brothers would not have received any thing. But, in any event, the brothers’ children would have received $130,000 (deducting only lapsed legacies). And the sisters would have received only $40,000, and their children nothing, in any event.
CHANGES OF CONDITION.
1. About fourteen years elapsed between the making of his will and his death, and during seven years of that period he was speechless.
2. When, in September, 1842, he made his will, he made an inventory of his estate, and estimated its total value at $732,000. When he died in 1856, his estate had increased, as before mentioned, to the sum of $1,465,914, having in that time increased more than double.
3. His dwelling in Barclay-street, valued at $18,000, and his house in Chambers-street, valued at $5,000, had been sold, and his furniture, valued at $10,000, had been mostly sold.
5. He had originally 117 shares of Manhattan Gas Co. stock, at the par value of $50 a share (and worth $60), $5,850. When he died, he had 468 shares at par value, $23,400.
• 6. He had improved his real estate in Hew Orleans, thus: House and lot on Camp-street, valued, when he made his will, at $3,000; was built on, at an expense of $6,985 42; in 1845 was valued at $9,000. And the two lots on St. Joseph-street, valued at, when he made his will, $3,000; were built on, at an expense of $10,786 50; in 1845, valued at $17,000.
7. In September, 1842, he had, in bonds and mortgages, $13,000. In 1856, he had thus invested, $220,450. Of the mortgages on hand in 1842, none were in existence in 1856, and only $3,021 in 1848. Of those on hand in 1856, none were held by him in 1842.
8. In 1842, his interest in firms was $472,379. In 1856, $6,000.
9. New Orleans property. He sold one of the three lots on St. Joseph-street. On the other lots a fire occurred, two or three years prior to his death, which destroyed $30,000 of their value, but which he received in insurance, thus converting into personalty, and spending that which was specifically devised as realty.
10. Gifts. He gave away — taking thus from under the operation of his will, and virtually revoking it pro tcmto— $9,978 51; which is exclusive of gifts to devisees under his will, $91,731 37. And, in addition, is the gift to Mrs. Parish of the stocks and securities invested in her name, $369,212 35. Making a total of gifts, $470,923 23. Whether such gifts be valid or not, they show an intention by testator to take that amount away from the will, and an intention to dispose of it otherwise than by his will.
11. His father's estate. In the statement of 1842, there is
12. Stocks cmdpublic bonds. The change of condition in these assets was as follows: The stock, &c., held in Septem-_ her, 1842, was $61,500; in March, 1856, $797,797. The amount held in September, 1842, which he did not hold, or was valueless when he died, was $32,420; or more than half the whole amount. The increase in the kind of stocks he then held, by rise in value, or further purchases, was $242,414; or four times as much as all he then held.
13. General change of property. Of all the specific property which the testator had in 1842, when he made his will, amounting in the aggregate to $732,879, he had when he died, in 1856, only $308,970; thus changing $423,909 of his original estate.
His real estate diminished in value to the amount of $38,000. He invested $210,000 in the purchase of real estate. And $30,000 of his real estate was destroyed by the fire in Hew Orleans; in which three items alone there was a change to the amount of $278,000.
In bonds and mortgages there was a change from $13,000 to $220,450.
In stocks, &c., there was a change from $61,500 to $797,797.
In his father’s estate there was a change from $30,000 to $52,878 77.
In his interest in the firms there was a change from $472,379 to $6,000.
By gifts he made a change to the amount of $470,923 23.
And the bulk of his estate changed from $732,100 to $1,465,914.
15. His relations with his famihj. The testator was on good terms with his two sisters, but not with his brothers; and the alienation between them occurred after his will was made in September, 1842, and continued until his death. He was on good terms with his wife and all her relations, especially her brothers and sisters, without an exception. His brother Daniel was a man of large wealth. And his brother James was worth over $50,000.
16. The testator never intended that his will should take effect, hut always intended to revoke it.
a. He made it originally to be temporary, on the eve of his departure for Europe, Sept. 26th, 1842.
h-. He executed it in duplicate, and took one copy with him in order to alter or revoke it, if he saw fit. And left a power of attorney to sell any and every thing.
c. Immediately on his return from abroad, he consulted his counsel about altering it, expressing his dissatisfaction with it, because of the changes which had occurred.
d. In August, 1849, his desire to alter his will was mentioned by Mrs. Parish, in his presence, to Mr. Lord, and again in presence of Fisher.
e. His repugnance to his will, and his desire to abrogate it was so strong, that when, during the long silence of seven years, he attempted to write, the only word he attempted to frame, besides his signature, was the word “ will.”
f. His attempting to write his name, was at the suggestion
g. By vehement and repeated gesticulation, he signified his wish for the box in which the will was kept.
h. He always intended equality in the distribution of his estate, especially between the brothers and sisters.
i. Four times during his sickness,-when the several codicils were drawn and executed, he expressed a similar wish.
j. He expressed a wish to disturb the legacies to his brothers’ children.
17. The acts of the testad were in conformity with cm intention to abrogate his will.
a. He consulted counsel in 1844 about altering it, and had a copy made for that purpose. He also consulted counsel on that subject twice in 1849, once in 1853, and once in 1854.
b. He executed three codicils, which, with the alterations by death and change of property, left a very small part of the will to go into operation.
c. He placed a large amount of his property in the name of his wife, and invested her with the absolute control over it, with the intention of making her its owner.
d. He made large gifts, showing a clear intention that the will should not operate on the amount thus given away.
e. He placed $75,000 in the hands of his brother-in-law, with the intention of making that a gift to his sisters, or to that brother-in-law. He had, by his will, given $90,000 to his brothers-in-law on his wife’s side, and this was intended as a gift to the only brother-in-law he had on his side. That gift of $75,000 was never revoked by him. It was voluntarily surrendered by the brother-in-law, at the instigation of others, and not by the action of the testator.
f He sold, in 1847, the homestead and furniture, and the house in its vicinity, all of which he had specifically devised, and that being his voluntary act, it showed his intention to revoke jiro tcmto. And he made no attempt at compensation until rendered imbecile in 1849.
g. He disposed of every item of personal property that he
h. He not only sold his homestead and furniture, and neighboring property, valued at $33,000, but he marked on his books, in 1849 (seven years after making his will) a depreciation of $38,000 in his real estate, and he knew of the destruction of $30,000 in_his Hew Orleans property, without rebuilding, and thus virtually revoked his will as to $101,000.
i. He invested over $200,000 in the purchase of certain real estate, which, not being specifically devised, would go either to the heir-at-law or the residuary legatees, thus diverting the price of the homestead, &c., $33,000, and the loss on the Hew Orleans estate, $30,000, from the devisees of these items to some other beneficiary. All this was done before his sickness, and when he was fully competent to prevent this revocation, pro tanto, if he had desired it.
18. The testator had a general intent as to the corpus of his estate, in connection with his wife and his brothers and sisters / and a special intent as to the numerous other objects of his bounty.
The general intent must- always prevail over the special.
That general intent can be best carried into effect by a total revocation.
In that event the wife would have ~ of personal . $543,243
Her dower in the real estate, valued at $261,000, she being 58 years old, would be worth . . . 42,663
Making a total to widow......$585,906
The four brothers and sisters would have one-quarter of residuum, $881,004; thus producing a result manifestly nearer his general intention than the will or codicils, or either or all of them.
If the widow is right, the brothers will get nothing, instead of over $50,000, under the will, or over $400,000 in case of intestacy. If the brothers are right, the widow would get $298,500, instead of over $1,000,000, under the will and codicils, or over $500,000 in case of intestacy.
I. When the codicils were executed, the testator had not a full testamentary capacity, and was under undue influence, and those codicils are all void.
TT. The will made in September, 1842, fourteen years before his death, was revoked: 1. By his intention to revoke.
2. By his acts of revocation. 3, By the alteration of estate.
4. By the changes of the beneficiaries under it, and his relation to them.
ITT. The will being revoked and the codicils void, it is a case of intestacy, in whole or in part.
Fvrst. As TO TESTAMENTARY CAPACITY AND UNDUE INFLUENCE.
I. There is no foundation for any distinction in respect to the codicils.
1. The testator’s mind was more impaired at the execution of the first codicil than the others, and had not then recovered its health as much as it did afterwards.
2. The first codicil was as much, if not more, the result of suggestion from others than of his own volition.
II. Testamentary capacity consists of the power of thinking, and the power of uttering thought, and of the power to will, and to express and execute that will. If either of these elements are wanting, testamentary capacity is deficient.
III. It is doubtful if the testator had the necessary capacity to think and to will.
1. Hothing but great mental weakness would have deterred him from using the means of communicating thought by writing or letters, when he had the physical capacity to use either mode.
2. The mental weakness that could produce such a result, and keep the testator for seven years without communion with his fellow-man, cannot be measured, and it is, therefore, impossible to say that he had a sound and disposing mind.
3. The affirmative of proving that he had such sound and
IY. But whatever may have been his mental capacity, it is a conceded fact that he had no power to utter a thought, or express a will, without the suggestion, or at the instigation of some other person.
Thus, if at any time after his attack of paralysis he had wanted to give any part of his estate to his sisters, it would have been impossible for him to do so, because their names were never mentioned to him, and he had no power of himself to mention them.
Y. It is also very clear that in the dispositions in his codicils, he was laboring under undue influence in whole or in part.
Many of the ideas in those codicils were suggested by others, and not by himself. He denied or assented to his gift of the Union Square and Wall-street property, according to the form in which the question was put to him.
YI. A will executed under such circumstances is not the free unbiassed action of a sound and disposing mind, which the law demands as a condition to its validity. (Davis v. Calvert, 5 Gill. & John., 269 ; Bleecker v. Lynch, 1 Bradf., 458, 471, aff’d on appeal; Weir v. Fitzgerald, 2 Bradf., 42 ; 1 Jarm. on Wills, 30, 39, 41; Clark v. Fisher, 1 Paige, 171; S. C., 2 N. Y. [2 Comst.], 498; Crispell v. Dubois, 4 Barb., 393; Worthington on Wills, 28, 32; Ingram v. Hyatt, 1 Hagg., 384, 404.)
Second. The will made in 1842, fourteen years before BIS DEATH, WAS REVOKED.
I. Bevocavit vel non is a question of intention, and all facts showing the intention may be received in evidence. (Boudinot v. Bradford, 2 Yeates, 170; Jackson v. Holloway, 7 Johns., 394.)
2. From July, 1849, to his death in March, 1856, another period of seven years, he had the capacity to will a revocation, and to give utterance to that intention. It required less capacity of utterance to destroy the will alréady made, than to make a new one with all its complications of amounts, persons, and articles of property. His difficulty was in the capacity of utterance, not in that of willing.
3. Every expression of his, during those fourteen years, in reference to his will, was that of dissatisfaction with it, and consequent wish that it should not stand. He never was heard to “ express” himself content with it, though it was repeatedly the topic of thought and action with him.
4. In the execution of this purpose, he knew of, and acquiesced in, did, or suffered to be done, things which amounted to a revocation, which he knew must have that effect, and which effect he could have prevented in a great degree, if not entirely.
5. Those things were: Death of seven legatees, and the lapsing of legacies to the amount of $15,000; disposing of every article of personal property, amounting to $540,000; disposing of every article of personal property specifically bequeathed, amounting to $10,000; converting real estate, specifically devised, into personalty, to the amount of $53,000; converting personalty into real, to the amount of over $200,000, thus changing its descent from next of kin to heirs, and altering the widow’s share from an absolute ownership of one-half, to life-estate in one-third; more than doubling his whole estate, and thus, except as to a few specific legatees, entirely changing thé distribution of his estate; and executing the codicils.
H. Under these circumstances there was an actual revocation of the will, in whole or in all of it, except the specific legacies. Eevocation may be in whole or in part. (Beck v.
IH. Ever since the Statute of Frauds passed in the reign of Charles II., in 1641, and our Statute of Wills revised in 1813 (Roberts on Frauds, 467, 473 ; 1 Rev. L., 364, §§ 2,16), the rule as to revocation under such or similar circumstances has been, that it would be implied.
Copyhold estates are not within the statute. (Carey v. Asken, 2 Bro. C., 58; Rob. on Fr., 319, 322, 323; Burkitt v. Burkitt, 2 Vern., 498; Habergham v. Vincent, 2 Ves., Jr., 205.) Mor is a trust in copyhold lands within it. (Rob. on Fr., 322.) So in case of an agreement to charge lands for the benefit of certain persons to be named by a certain person in his will.. Such appointment is not within the statute, and may be made by a not duly attested will. (Rob. on Fr., 327, 332; Jones v. Clough, 2 Ves., 365.)
By a will duly executed, charging land generally with legacies, a testator enables himself to lay any number of additional legacies on the land by a subsequent testamentary dis
In the case of a devise to pay debts, testator may contract enough to revoke every other devise or bequest. (Rob. on Fr., 345.) Lord Hardwicke, in Masters v. Masters, says the. Statute of Frauds does not affect the question as to legacies, because it did not prevent a man from creating by will a fluctuating charge.
An annuity was charged on all estate, real and personal, and by an unexecuted codicil, testator gave all the personal to another. The annuity was revoked as to the personal. (Buekeridge v. Ingram, 2 Ves., Jr., 652; approved in 8 Ves., 500.) And that, not because the thing given was destroyed, but the fund out of which it was given. So a devise to charitable uses was held not to be within the statute. (Griffith Flood's Case, Hob., 136; Collison's Case, Ib.) Terms of years will j»«ss by a will unattested, though they could not thus be created. (Rob. on Fr., 359; Whitechurch Case, 2 P. Wins., 236.) So as to fixtures, which can be removed and converted into personalty — e. g., steam-power in a factory. (Rob. on Fr., 365.) Or a devise of corn groiwing, is good by a will unattested. (Fisher v. Forbes, 2 Eq. Cas. Abr., 392.)- So a devise of a mortgage may be revoked by an unattested will, because it is regarded as personal. (Casborne v. Searfe, 1 Atk., 605.) If in an unexecuted will there is a legacy to the heir on condition that he do not dispute the will, it is enough to put the heir to his election. (Boughton v. Boughton, 2 Ves., 12.) A lease and release to the use of a marriage settlement is not within the statute, but is good as an implied revocation. (Goodtitle v. Otway, 2 H. Bl., 516.)
THE FOLLOWING ARE OASES OF DEPARTURE FROM A LITERAL READING OF THE STATUTE.
The Statute of Frauds, section 5, reguires a Will to be signed by the Testator. — Lemayne v. Stanley (3 Lev., 1), holds that if the will is in the testator’s writing, and his name is inserted, it is enough. Same point in case of agreements.
The republication of wills of personal estate is not affected by the Statute of Frauds. (Abney v. Miller, 2 Atk., 599.)
The Subscription of the Witnesses is to be in the presence of the Testator. — It has been held that it was enough if the testator might see; it was not necessary he should. (See Shires v. Glascock, 2 Salk., 688.) As when the testator signed in her carriage, and the witnesses went back into the office and signed their attestation. (Casson v. Dade, 1 Bro. C. C., 99.)
He must not only be corporally present, but there must be a mental knowledge of the fact. (Right v. Price, Doug., 241.)
The testator,became insensible after executing the will, but before the witnesses could sign the attestation, which, however, they did do then and there, and he was alive and in the same room with them.
The 5th Section requires Credible Witnesses. — Who are “ credible?” The courts have construed the word, and converted it into “ competent.” At first it was held to be determined by the nature of the punishment, as sitting in the pillory. (Co. Litt., 6, b.) Afterwards by the nature of the crime. (Pendock v. Mackinder, Willes, 665; Windham v. Chetwynd, 1 Bur., 414; Hindon v. Kersey, 4 Burn. Ecc. L., 97.) The result was, “ credible” means “ competent.”
The Qth Section makes a Cancelling of the Will a Revocation. — Yet it is well settled that that depends on the intention, and something more is necessary than a mere literal compliance. In Onions v. Tyver (1 P. Wms., 343), Lord Cowper held that when a man made a second will devising the same property and cancelled his first, the cancelling amounted to nothing, because he did not intend to revoke his first will unless he could make his second effectual.
The 22 d Section declares that Wills of Personal Property
1. An intention to revoke, though not always essential t© a revocation, yet is an important element, not only in characterizing acts proved, but in determining the question of rerooemit vel non.
a. Our statute has recognized this, in rejecting paroi evidence of such intention. (2 Dev. Stat., 64.)
b. But the effect of intention, when properly proved, is well recognized. (Brush v. Wilkins, 4 Johns. Ch., 517; Johnston v. Johnston, 4 Phill., 447; Marston v. Roe, 8 A. & E., 14; Walton v. Walton, 7 Johns. Ch., 258.)
2. The alteration of circumstances connected with the testator and his personal relatives, or those who would naturally be the objects of his bounty, is often enough to work a revocation. Thus, in marriage and birth of children. (Marston v. Roe, 8 A. & E., 14; Parsons v. Lanoe, 1 Ves., 191; Gibbons v. Caunt, 4 Id., 848; 3 Ph. Ev., by Edwards, 608; Israell v. Rodon, 2 Moore P. C., 51; Overbury v. Overbury, 2 Show, 242; Doe v. Lancashire, 5 T. R., 49.)
In a case of subsequent marriage and birth of child. (Gibbons v. Caunt, 4 Ves., 848.) The same ruling was extended to the case of a will before marriage, and then death, followed by birth of a posthumous child. (Doe v. Lancashire, 5 T. R., 49.) It was extended to the case of a widower, who married and had issue, though his will was in favor of the ■ issue by the first marriage. (Hollway v. Clarke, 1 Phill., 339.)
A will by a father, on the assumption of his son’s death, and of a wife, on the assumption of her husband’s death, revoked by their being alive. (1 Lee, 120; 5 E. E. R., 325; Ward on Legacies, 261-276; Campbell v. French, 13 Ves., 321.)
An advancement is a revocation. |(Lovelass on Wills, 367, 371; Worthington on Wills, 86; Story Eq. Jur., §§ 1111,1112; 2 Williams on Ex'rs, 946.)
3. The alteration of estate is often enough to work a revocation. (Lugg v. Lugg, Salk., 592; Christopher v. Christopher, Dickins, 445; S. C., 4 Burr., 2171, note; Id., 2182; Brady v. Cubit, Doug., 30; Bullin v. Fletcher, 1 Keen, 377; S. C. on appeal, 2 My. & Cr., 438; Ward v. Moore, 4 Mad., 368; Adams v. Winne, 7 Paige, 97; Cave v. Holford, 3 Ves., 650 ; S. C., 7 T. R., 399; 1 B. & P., 576; Walton v. Walton, 7 Johns. Ch., 258; Toller on Executors, 19, 22; Clapper v. House, 6 Paige, 149; Sparrow v. Hardcastle, 3 Atk., 798.)
A. devises a mortgage and forecloses, or takes a release of the equity of redemption; it is a revocation as if he can-celled the mortgage and took an absolute deed, for it was an alteration of interest and a new purchase. (Ballard v. Carter, 5 Pick., 112.)
A man in his will manumitted his slave, and afterwards sold her ; held to be a revocation. (Matter of Nan Mickel, 14 Johns., 324.)
If a father gives a daughter a ptirtion by will, and after-wards gives to the same daughter a portion in marriage. This by the laws of all other nations, as well as of England, is a revocation of the portion giverf by the will. (Hartop v.
Wherever an estate is modified in a manner different from that in which it stood at the time of making the will, it is a revocation. (Livingston v. Livingston, 3 Johns. Ch., 156; Parsons v. Freeman, 3 Atk., 748; S. C., 1 Wils., 308.)
Lord Hardwicke rules: It is admitted on all hands that if testator, having a legal estate, devises it and suffers a recovery, it is a revocation ; or if he devises and then conveys, though he takes back a new estate, if he levies a fine to his own use in fee, it is a revocation." (Amb., 116. See Parker v. Biscoe, 3 Moore, 24.)
Oh. J. Traver held that the least alteration of interest worked a revocation. (Arthur v. Breckenham, Fitzgib., 240.)
Testator after a devise conveyed the estate and took back a declaration of trust, which was performed and ceased, so that he was entitled to a reconveyance; still it was a revocation, because the estate did not continue in the same condition. (Sparrow v. Hardcastle, 7 T. R., 416, n.; 3 Atk., 798. See Swift v. Roberts, Amb., 618.)
The whole subject was fully discussed several times and settled, that where a testator, after a will, conveyed to trustees in trust for himself in fee till marriage, and in default of issue, to use of self in fee, and he married and died without issue, it was a revocation, because of the alteration in estate. (Cave v. Holford, 3 Ves., 650; 7 T. R., 399 ; 1 Bos. & Pul., 576.)
" Bennett v. Tankerville (19 Ves., 170); Knollys v. Alcook, (5 Ves., 654); Williams v. Owens (2 Ves., Jr., 601); Cotter v. Layer (2 P. Wms., 622); and Mayor v. Garland (Dickins, 563), are all to the point that an executory contract to sell land devised, is a revocation of the devise.
A bequest of a lease and furniture of a house was revoked, by the expiration of the lease, a sale of part of the furniture, and removal of the residue to another house. (Colecton v. Garth, 6 Simons, 19.) As to revocation by sale or disposition, see Francis v. Collier (4 Russ., 331); Bullin v. Fletcher (2 Myl. &. Cr., 439); and Lock v. Foot (5 Sim., 618). Where lands contracted for are devised, if the subsequent conveyance is so framed that the legal estate is modified from the equitable possessed at the time of the devise, it is a revocation. (Bullin v. Fletcher, 1 Keen, 377.) The effect of the alteration of the estate is wholly independent of intention, and sometimes violates the intention clearly indicated. (See Rawlins v. Burgis, 2 V. & B., 386; 2 My. & Cr., 438.)
It has been urged that the rules and distinctions acted upon in these cases have been disapproved by eminent persons. As an argument of this nature may make the judge more cautious in concluding that a rule which he supposes to be applicable to a ease really is so, there is no impropriety in it; but whether the authorities relating to revocation be open to great objection, and whether it is or not a subject of regret that they should have been applied to cases of this nature, would not afford ground to deviate from decisions which have been acquiesced in, and have for many years furnished a rule for determining the rights to property. It is the duty of a judge to administer the law according to the evidences of it which are to be found in the authorities and in the recognized practice of the profession. The inquiry
It may be lamented that the law upon any subject is in such a state as to induce eminent judges and writers to express them disapprobation of it, and their regret that they are bound to give it effect, but it would be still more to be lamented if judges should be found who thought themselves at liberty to declare the law according to their own fancies of what it ought to be. All stability would be lost, and the law which should be administered on clear and fixed principles would be involved in uncertainty and confusion.
A devise of two lots by one who was under-lessee of them, is adeemed by his afterwards taking an assignment of the leases. (Porter v. Smith, 16 Sim., 251.) Two cheeks given in September, 1833, and a will dated November, 1834, together admitted to probate as a will; y.et the latter held a revocation of the checks. ( Walsh v. Hadstone, 13 Sim., 261.) Testator devised £10,000 to M., and afterwards transferred £12,000 consols to joint names of testator and M. Held, an ademption. (Twining v. Powell, 2 Collyer, 262.) In Vawzer v. Jeffry (3 Russ., 479), the lord chancellor said, upon the authority of several cases (Ryder v. Wager, 2 P. Wms., 328; Cotter v. Layer, 2 Wms., 122; Knollys v. Alcock, 5 Ves., 648), that an agreement to convey, constitutes a revocation. In Bullin v. Fletcher (2 Myl. & Cr., 438), the lord chancellor said: In Parsons v. Freeman (3 Atk., 471), Lord Hardwicke establishes the principle, that whenever the estate is modified in a manner 'different from that in which it stood at the time of making the will, there is a revocation. A subséquent conveyance which made an alteration in the quality of the estate is a revocation. ( Ward v. Moore, 4 Mad., 368.) Though a trust to pay debts is no revocation, yet where in the deed there is a provision that after paying debts, the trustee should pay to such persons as the testator should appoint,- and in default of an appointment to himself in fee, that is a revocation. (Kenyon v. Sutton, cited in 2 Ves., Jr., 600.)
If the legal estate which the testator acquires by the conveyance, differs in quality from the equitable estate, which he had at the date of the will, the conveyance revokes the devise. (Plowden v. Hyde, 9 Eng. L. & E., 243.) And so in the case of a contract for purchase, if the legal estate which the testator acquires by the conveyance differs from that which by the terms of the contract the vendor agreed to convey to him, the conveyance revokes the devise. And this revocation equally takes place even though the testator after the conveyance has as absolute a power of disposing of the property as he had before. And the revocation takes place without regard to the testator’s intention, and even in direct contravention of his intention. S. 0. affirmed on appeal (13 Eng. L. & E., 180), where this was ruled: If a person seized in fee made his will, devising land, and afterwards conveyed the legal estate so as to take it back to himself not in fee, this is a revocation (see, also, Schroder v. Schroder, 31 Eng. L. & E., 197; Francis v. Collier, 4 Russ., 331; Lock v. Foote, 5 Sim., 518); all cases of change of interest in the estate working a revocation.
A mortgage was devised, paid, and the amount reinvested, ■ — held to be a revocation. (Gardner v. Hatton, 6 Sim., 93.) A devise of all testator’s property in the funds which he sold and invested on mortgage, was revoked thereby. (Hayes v. Hayes, 1 Keen, 97.) A renewal of a lease was a revocation
If an incomplete testamentary disposition shows an intention to revoke, it is good as such. (Kidd v. North, 2 Phillips, 91; citing Jackson v. Jackson, 2 Cox, 35; Atty.-Gen. v. Harley, 4 Madd., 263; Heming v. Clutterbuck, 1 Bligh, N. S., 479 ; Fraser v. Byng, 1 Russ, & Myl., 90.)
Where testator intends a complete conveyance, and dies before it is perfected, as feoffment sans livery, it is a good revocation. (Clymer v. Littler, 1 W. Bl., 349.) A deed intended to operate as an assignment of uses, but not sufficient for that purpose, is ■ good as a revocation. (Shove v. Pincke, 5 T. R., 124; citing 2 Salk., 292 ; 1 Roll. Abr., 615, pl. 30; Wentworth Off. Exs., 22.) If the instrument be complete, but inoperative from the incapacity of the taker, it is a revocation, because the act was enough to alter the testator’s intent. (Beard v. Beard, 3 Atk., 72; S. P., Roper v. Constarbles, 2 Eq. Ca. Abr., 359, p. 9.)
A second will signed, but not attested, is good as a revoca
The foregoing cases show that hy the law, as well settled at the time of the enactment of the Revised Statutes, this will, or at least the residuary clause of it, was revoked by the intention of the testator; by a change of parties; by • an alteration of the estate; and by the attempt to change the disposition by means of the codicils, gifts, and otherwise.
IV". The Revised Statutes have not changed the law in this ' respect, nor intended to change it.
1. The revisors’ notes are not evidence of the meaning of the statute. (Sedqw. on Stat., 430; Forrest v. Forrest, 10 Barb., 46.)
a. The law prior to the Revised Statutes being well settled by adjudications, a change of phraseology is not a change of the law, unless such change of phraseology evidently purports an intention to work a change. (Sedgwick on Stat., 428; In re Yates, 4 Johns., 359; Taylor v. Delaney, 2 Cai. Cas., 243; Elwood v. Klock, 13 Barb., 55.)
b. The intention of the Legislature to alter the law must be evident, or the language of the new act mbst be such as palpably to require a different construction, before the courts will hold the law changed upon such revision, merely from the fact of a change of language. (Croswell v. Crane, 7 Barb., 195; Gaffney v. Colvill, 6 Hill, 574; Theriat v. Hart, 2 Id., 280; In re Brown, 21 Wend., 316, 319.)
c. The section of the Revised Statutes (2 Rev. Stat., 64, § 42) is merely a revision of the Revised Laws, and is so declared by the revisors (3 Rev. Stat., 3 ed., 631), and, therefore, is not to be regarded as any alteration of the law.
d. Besides, the Legislature not having adopted the plan of the revisors, but having omitted some of their plan, and added some parts to it, cannot be regarded as adopting their notions in full. See section 44 (2 Rev. Stat., 64), which the Legislature altered, though it was recommended purposely to cover the whole ground, and was altered so as not to do so.
3. There is, therefore, a class of cases where, from sheer necessity, there must be an implied revocation, even beyond what the statute has provided for, and it is wrong to say that there can be no revocation of any will unless it is particularly mentioned in the statute. The statute reaches a certain class, and regulates them, and those not within that class are not reached by the statute.
4. It was so with the English Statute of Frauds: sections 6 and 22 of which were as follows: Sect. 6. “ Ko devise in writing, of lands, &c., or any clause thereof, shall at anytime after, &c., be revocable otherwise than by some other will or codicil in writing, or other writing, declaring the same, or by burning, &c.” Sect. 22. “Kc will in writing, concerning any goods, or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or.bequest therein, be altered or changed by any words, or will, by word of "'mouth only, except the same be in the lifetime of the testator committed to writing.” (Act of 29 Car. II., ch. 3, §§ 6, 22; Rob. on Fr., 467; this act was passed in 1641.)
5. At first, and for about forty years, that act was read just as strictly and literally as it is contended we must read our Bevised Statutes. But the cases of implied revocations by necessity arose, and the English courts yielded to such necessity. The following cases will trace their decisions down from 1682 to the present time, and beyond the English Stat
In 1682, Overbury v. Overbury (2 Show, 242). In 1689, Sugg v. Sugg (Salk., 592). In 1748, Parsons v. Lanoe (1 Ves., 189). In 1771, Christopher v. Christopher (Dickins, 445; S. C., 4 Burr., 2171, n.; 2182, n.) In 1778, Brady v. Cubitt (Doug., 30). In 1793, Doe v. Lancashire (5 T. R., 49). In 1836, Bullin v. Fletcher (1 Keen, 377; S. C. in appeal, 2 My. & Cr., 432). In 1838, Marston v. Roe (8 A. & E., 14). In 1852, Plowden v. Hyde (9 Eng. L. & Eq., 243; S. C., 13 Id., 175). In 1856, Andrew v. Andrew (39 Id., 158).
6. The enactments contained in these two sections of the English Statute of Frauds, were incorporated into the revisions of our statutes, in 1801, 1813, and 1830. (1 Rev. L. of 1801, 178, §§ 3, 16; 1 Rev. L. of 1813, 365, § 3; 367, § 16; 2 Rev. Slat., 64, § 42.) And the current of English decisions was Received by us, and incorporated into our jurisprudence. (1 Jarm. on Wills, Perkins ed., 152; 4 Kent Com., 521; Brush v. Wilkins, 4 Johns. Ch., 506; Walton v. Walton, 7 Id., 258; Adams v. Winne, 7 Paige, 97; Beck v. McGillis, 9 Barb., 35.) And the same rule has been adopted in others of the States of the Union, where these enactments of the Statute of Frauds were in force. (Semmes v. Semmes, 7 Har. & Johns., 388; Burns v. Burns, 4 Serj. & Raw., 295; Havard v. Davis, 2 Binn., 406; Boudinot v. Bradford, 2 Yeates, 170; Bates v. Holman, 3 Hen. da Munf., 502; Witter v. Mott, 2 Conn., 67.)
• 7. The rule, then, existing both in England and in this country, notwithstanding the Statute of Frauds, declares that a will, under the circumstances which attend this of Henry Parish, is revoked. (Johnston v. Johnston, 1 Phill., 447; Brush v. Wilkins, 4 Johns. Ch., 506; Sherry v. Lozier, 1 Bradf, 437; 4 Kent Com., 528; 3 Ph. Ev., by Edwards, 608; Langdon v. Astor, 16 N. Y., 51; Betts v. Jackson, 6 Wend., 173.)
Put in the following brief in reply to some questions of law discussed in the contestants’ argument. .
I. The statutes of this State express the rule in respect to testamentary capacity, by which the question must be determined whether any particular person has or has not power to make a will. (2 Rev. Stat., 56, § 1; Id., 60, § 21.)
The latter section was reported by the revisors to the Legislature, with fourteen years as the age of competency for males, and twelve for females, and with a suggestion that those ages were too young. It was in reply to this suggestion that the Legislature increased the ages, and inserted the words “ and no others,” to exclude the idea that younger persons might still make wills of personalty as at common law. (3 Rev. Stat., 2 ed., 629, rev. note.) That the whole section is thrown into the form of permitting certain persons to make wills, rather than that given to the provision in regard to devises of real estate, which excepts certain persons as incapable out of a general permission to all, is to be attributed to its greater simplicity of construction in the present form, and not to any difference of intent on the part of the Legislature. Under each section the intent is the same, viz., that all persons, not by law disabled, may make wills. The same exception occurs in the statute relating to the alienation of lands. (1 Rev. Stat., 719, § 10.)
Although under the two sections relating to real estate,. the persons incapable to alien or devise are designated as “ idiots, or persons of unsound mind,” and under the section as to wills of personalty, the persons incapable are those not “ of sound mind and memory,” yet there can be no doubt that this verbal difference in expression does not indicate any difference in the substance of the rule of exclusion. That no-ground can be conceived of on which to found a difference is apparent. General permission to alien property in life and at death is the purpose and policy of the Legislature; the
In the early English statute concerning fines (18 Edw. I.), all persons in the world “ de tone memorie” are declared barred, which words Coke translated “ of good memory” (1 Inst., 510), and employs as the contrary of “ non compos mentis.” (Id., 516, n. 18.) These words, ‘•‘•non compos mentis.” occur in the Statute of Westminster 2d, ch.48 (13 Edw. I.), and are translated by Coke “ not whole of mind.” (2 Inst., 480.) The same words are said by Littleton (section 405), to be of the same meaning as “ de non sane memorie,” and they are used interchangeably in the old pleadings as the different names of a certain and definite mental state known to the law, and affording the ground and criterion of legal action'. Thus, to refer to a single case only, in an action of trespass which turned on the validity of a deed executed by _ one whose capacity was disputed. The traverse alleged that the grantor was of good memory; without this, that he was out of his sound or sane memory, “ extra sa/nom memoriam suaml It was objected that the writ appropriate to the recovery of lands aliened by a person incapable to convey, 'used the term “ non compos mentis,” and that therefore the traverse should be taken in those words ; and further, that in the form proposed the traverse would include the deed of a sick or drunken man, whose deeds were good. It was answered,
Before entering directly on the inquiry to ascertain what is the mental state referred to in the statutes, of which incapacity is the legal consequence, it should be observed that a person who falls within the class of incapables can make no alienation of land, no will of real or of personal estate.
The opinion of Senator Yerplanck in Stewart v. Lispenard (26 Wend., 255), is especially deserving of notice, both for its
The cases of Blanchard v. Nestle (3 Den., 37), and Osterhout v. Shoemaker (Id., note), in the Supreme Court, show a free and clear approval and'adoption of the reasoning and principles of Senator Yerplanck’s opinion. In Newhouse v. Godwin (17 Barb., 246, 257-8), Hr. Justice Strong, giving the opinion of the court, recognizes the rule as certainly established by the cases, that mere feebleness of intellect, however considerable in the tdstator, will not invalidate a will. The difficulty which Judge Strong felt and expressed, arose from, the seeming incongruity of calling a person whose intellect, from natural or acquired defects, was but the next degree above positive idiocy or lunacy, — a person of sound mind and memory, in the language of the statute. That incongruity would not have appeared to him to exist, if he had adverted to the fact that those terms were exactly equivalent in the law to “ compos mentis,” and embraced all persons not “ non compos mentís.” Judge Gridley, in Stanton v. Wetherwax (16 Barb., 261-2), felt no such difficulty, recognizing at once both the equivalence of the terms “ not of sound mind and memory” and “ non compos mentís,” and also the accuracy of the designation of the general classes of “ non compotes,” as set forth by Lord Coke and adopted by Blackstone; according to which, besides idiots from birth and lunatics, those persons only are included who, by sickness, grief, or other accident, wholly lose their understanding. In the Court of Appeals, Clarke v. Sawyer (2 N. Y. [2 Comst.~], 498) is the only reported case in which this subject came under discussion, and, according to the report, a majority of the * court did not pass upon the question of mental capacity; but Shankland, J., who gave the opinion, recognizes the authority
This being the state of the authorities in New York upon this subject, it is not surprising to find the overthrow of the decision in Stewart v. Lispenard attempted by an array of cases from all quarters, which seemed to afford promise of assistance, as well as by an attack upon the accuracy of the opinion in that case, both in its statement and in its appreciation of the authorities on which it professed-to be based. In regard to the cases cited which have any claim to be regarded as authoritative in this State, it must for the present suffice to say, that they were before the Court of Errors when Stewart v. Lispenard was decided, and that so far as they differ in doctrine from that case, they have been overruled by it, and by those cases which have followed and approved it.
The first ground of the direct grounds of attack is, in substance, that the cases cited by Senator Verplanck in support of the standard of mental capacity maintained by him, relate mainly to the prerogative of the crown to take into its' custody the persons and estates of idiots and lunatics. That this prerogative, in its nature odious, was always strictly construed, and that the cases and opinions relating to it are not authoritative on the subject of testamentary capacity. Now, the prerogative in respect to idiots might be odious, inasmuch as the king took the profits of the estate of natural fools or idiots from birth, to his own use. But the other branch of the prerogative, which relates to other non compotes who were born of sound memory, and have become non compos, does not seem subject to the same odium, and consequent narrow construction; for the profits of their estates the king took not to his own use, but wholly to the use of the non compos and his family. (Beverly’s Case, 4 Coke, 126 b,127 b.) But one of the most direct and strongest authorities cited by Senator Verplanck, though it does not relate in terms to testamentary capacity, has not any relation to the subject of the prerogative. It is Coke’s commentary on sections 405 and 6 of Littleton, in the chapter on Descents,
Lord Hardwicke’s observations in Barnsley's Case (3 Atk., 168,173) show that when the question was of exercising the prerogative for the custody of the persons and estates of those of unsound mind, the same standard of intellectual capacity was acted on as the courts of law applied, when for other purposes it became necessary for them to say what constituted unsound mind. He held, in substance, that there was no specially narrow and restricted sense in which the term non compos was applied in questions relating to prerogative proceedings. It is obvious that the inquiry to which Lord Hardwicke addressed himself, was, Who is non compos, within the Statute of Fines, whom a fine will not bar if he be not a party to it, and who may not be a party; who is non compos within the meaning of the Statute of Limitations against whom it shall not run; who is non compos, so that his heir shall have a writ to avoid his feoffment ? He had before him a return that Barnsley, from the weakness of his mind, was incapable of governing himself and his lands and tenements, and he recognized the possible usefulness of setting a curator or tutor over prodigal" and weak persons, as in the civil law; but finding that the courts of law had invariably regarded the words non compos as importing a total deprivation of sense, he did not feel at liberty to act on any finding which in substance came short of that. We say, then, that there is no ground of authority for saying that the law adopts any sense of the terms non compos mentis, in their application to persons idiotic, or of weak or imbecile mind, which does not import a complete deprivation of reason or sense.
Another, and the most elaborate occasion, of criticism on the case of Stewart v. Lispenard, seems to be the use, in the last clause of the reporter’s first head-note, of the words, <l if he.be not totally deprived of reason.” The line of critical observation is this: that the head-note is taken almost word for word from Shelf ord on Lunacy, with the exception that, instead of 'the words above cited, Shelford uses the words
Senator Yerplanck in his opinion quotes Shelford’s language, “ if a man therefore be legally compos mentis,” and also quotes Lord Hardwicke’s language, that “ non compos' mentis” imports “ a total deprivation of reason” as contradistinguished from weakness of mind; and the judgment given proceeds upon the basis that Lord Hardwicke’s interpretation of those words, and his understanding of the rule of law, were correct. If Sir Joseph Jekyll differed from Lord Hardwicke on a question of law, looking to the mere authority of names, it would certainly be pardonable to follow the latter; but as Sir Joseph did not give his opinion, and Lord Hardwieke gave his, and the Court of Errors agreed with him in
There is certainly no reason to suppose that Sir Joseph Jekyll or Chief-justice Holt used the terms “legally compos mentis” in any different sense than that which Lord Hard-' wieke said belonged to them: nor after the true sense of the terms had been once elucidated by so eminent a judge as Lord Hardwicke, are we to expect to find the same exposition often repeated in the books. It happens, however, to have occurred in Rochfort v. Lord Ely (Ridgeway’s Cases in Parliament, 532). Lord Chancellor Lifford says, “ There is no such thing as equitable insanity; it is a legal thing understood according to a legal definition. A deprivation of sense and a total want of understanding to contract; a deprivation of a man’s reason, as is said by Lord Hale. The genus of it has been described also by the' general words 1 non compos/’ weakness does not carry that idea with it. Courts of law understand it in the legal sense; the genus of it is expressed by the words non compos, or insanos mentis / and this agrees with the old idea in the books, that a man shall not stultify himself, and the reason given (though it does not hold now as it has been heretofore laid down), shows what the law considers as non compos. ..... The statutes of fines and limitations all adopt the words 6 non compos, non sanee men-pis’ as technical words, to express the deprivation of reason, agreeably to the wisdom of the law which aims at certainty. These words are legitimated, and they are now the only legitimate words to describe the incapacity.” At page 551, in a different proceeding between the same parties, Lord Chancellor Lifford says, further, “ The next point is, that he was an idiot or natural fool, and of unsound mind through a radical defect; or if not so, yet so defective through weakness of understanding, as to be incapable of doing any legal act to alter-the estate.” Having disposed of the question of idiocy and unsound mind, he proceeds to consider the ground
We submit, therefore, that the policy and reason of Stewart v. Lispenard are sustained by the authorities cited; that it is in accordance with the course of decision in this State, and ought upon no ground to be disturbed.
The doctrine of the case was adopted in Potts v. House (6 Geo., 324), and still more recently in Morris v. Stokes (21 Id., 552).
Some observations occurring in the English books, and which are constantly invoked on questions of this sort, may be noticed. Winchester's Case (6 Coke, 23 a), was an appli
Combed Case seems to have been a mixed criminal and civil proceeding in the Star Chamber. It .is called a bill of forgery against Combes and others for the supposed forgery of a will of Bichar^. Brokenbury, lately one 'of the queen’s ushers. It was held that to omit a thing, or legacy out of a will which is directed to be inserted, is not forgery; but if it is directed to give land to one for life, remainder to another in fee, and. the estate for life be omitted, whereby the remainder will take effect presently, that is forgery. They also held that if one write a will without direction, and bring it to the devisor, and he allows it, it is good; but if he were then of non sane memory, the will is void, and yet is not a forgery. And so it was adjudged; and Combes, who was charged with the forgery, was cleared of that. But the filling up the blanks by him when Brockenbury was not of sane memory, was thought to be a misdemeanor, if he knew him to be of non some memory — but the misdemeanor was pardoned. Then follows the passage cited, which, from the expressions used, would seem to relate to a man at his last gasp, and almost incapable of receiving impressions through his senses, and-it may be that one in that condition may not have .had any reason left. The citation from Herbert v. Lowns (1 Rep.
As to Mountain v. Bennett (1 Cox, 353), it is of no great consequence that. Eras, Oh. B., in charging the jury is reported to have used the terms “ a momentous instance” with reference to the act of making the will there in controversy, nor as the will was sustained by the jury was it ever necessary to consider whether the chief baron did not err against the party claiming under the will. In Greenwood v. Greenwood (3 Curt., App. 30), what Lord Kenyon is reported to have said as to mind competent to dispose of property by will, was quite beside the question in the cause, which turned on the effect of a delusion in respect to the conduct of the brother of the testator. Ball v. Mannin (3 Bligh, N. S., 1) is the same case mentioned in Senator Verplanck’s opinion as Bell v. Martin (1 Dow & Clark, N. S., 386), and which is- there commented on by him.
In conclusion, as to this branch of the subject, w*e say, that when once the mind has fairly embraced the ideas, the whole aim and purpose of the law is to give effect to the owner’s dominion over property ; that it has no choice or preference as to the person to whom at death it shall be devolved ; that it fixes a course of devolution in accordance
III. From the same general considerations favoring the largest dominion over property by its owner, it would seem to follow, that when an act of disposition appears to have been done by the owner it should -be intended that the requisite mental capacity was not lacking, and that the burden should be thrown upon those who deny the owner’s mental capacity to establish the fact of incapacity. It is not for the owner to make out his right of disposition by showing his mental capacity. The right of disposition is incident to the ownership, and it is for those who deny the existence of the right, to establish the ground of fact on which the denial rests. Such clearly is the law of Hew York. In Jackson v. Van Dusen (5 Johns., 159), Van Hess, J., in giving the opinion of the court, says: “ In all cases where the act of a party is sought to be avoided, on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and, until the contrary appears, sanity is to be presumed. In Jackson v. King (4 Cow., 216), Woodworth, J., lays down the rule in the same terms. In Osterhout v. Shoemaker (3 Den., 37), the charge of the judge, which was sustained by the court, imposed the burden of making out the alleged want of mental capacity on the party desiring to avail himself of it. Swinburne on Wills (vol. 1, p. 119), which is mainly made up of extracts from the text of the civil law, and from commentators upon it, says: “ Every person is presumed to be of perfect mind and memory, unless the contrary be proved. And, therefore, if any person go about to impugn or over
In the courts of other States considerable difference of opinion has occurred upon this subject. The principal cases which do not agree with the law of Hew York are collected in the argument of the contestants. Some of them seem to proceed upon what the courts have regarded as the special requirements of their own statute law, while in all of them is disclosed what we conceive to be a fundamental and fatal error in the consideration of the subject. They treat the question as if the maker of a will was in the position of one who claims under a statute power, by whom every step must be affirmatively shown, or of one who is to plead performance of conditions precedent, in order to entitle himself to demand some consequent duty. We, on the other hand, suppose that the qualifications imposed by the statutes are not to be looked upon as conditions precedent to the existence of a right to make wills. That the general right and power is to make wills as it is to do other acts of disposition; that the limitations on that right are, in their own nature, exceptions out of the general rule; and that, so far as defect of mental capacity or intellectual' disorder are concerned, those exceptions are such as the unwritten law, without any statutory declaration, would have indicated. That it is therefore eminently fit that the burden of proving the exceptional case should rest on him who asserts it to exist, and to have taken away from the particular individual, the common and general incident to ownership, the power of disposition by will.
In addition to. the cases in Hew York, many others may be cited: Stevens v. Van Cleve (4 Wash. Cir. C., 262); Hoge v. Fisher (1 Pet. Cir. C., 163); Harrison v. Rowan (3 Wash.
Assuming, then, that a man is not by want of capacity disabled to make amy will, the statutes expressly point out what shall be the authentication which such an instrument must receive to make it effectual. When those requirements have been complied with, as no other evidence could supply the absence of the statutory pjfoofs, so nothing further in addition or corroboration can be required. Such a will may be defeated if it be shown to be the product of fraud or coercion, and into that question the effect of impaired or naturally feeble intellect will enter; for it is obvious that such an intellect will be more subject than a strong one to be deluded by fraud or overcome by force. But these are grounds to be made out by the party alleging their existence. (Colclough v. Boyse, 6 House of Lords Cases, 45; Barry v. Butlin, 1 Curteis, 637.) The influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of infection and attachment; it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted ; that it was done merely for the sake of peace; so that the motive was tantamount to force and fear. (1 Wms. on Ex'rs, 44). These are the principles and tests which all the cases put forth as the criteria of undue influence, when alleged against those standing in indifferent relations to the testator.
Certainly, in the relation of man and wife, where it has not commenced after the invasion of disease, where it was entered upon on the usual motives, and under usual circumstances, the law does not require that the wife shall not influence the husband, or subject her conduct to more stringent rules, or more uncharitable suspicions than those which are applied to others. On this point the law is clearly stated in Stulz v. Schœffle (18 Eng. Law & E., 579, 597).
In the name of God, Amen! I, Henry Parish, of the city of Hew York, merchant, do make, publish, and declare the following as my last will and testament:
First. I give, devise, and bequeath unto my beloved wife, Susan Maria, the house and lease of the lot now known as Ho. 49 (forty-nine) Barclay-street, in the city of Hew York, where I now reside, (called lot Ho. 200 in the lease from Columbia College to me, dated the first day of May, one thousand eight hundred and thirty,) with all my right and interest in, to, and under the" same; and also (after the decease of my friend and' relative, Mrs. Catharine Payne) the house and lease of the lot now known as Ho. 88 (eighty-eight) Chambers-street, in said city of Hew York, (in the lease from St. Peter’s Church called lot Ho. 429 of the Church farm, assigned to me by Joseph Sands by assignment, dated the second day of April, one thousand eight hundred and thirty one,) with all my right and interest in, to, and under the same. I also give, devise, and bequeath unto my said wife, in fee, the following real estate situated in the city of Hew York, to wit: The store and lot now known as Ho. 54 (fifty-four) Pine-street, (which was conveyed to me by George Suckley and Daniel Oakey by deed dated the first day of May, one thousand eight hundred and twenty-six;) and my equal undivided half of the lot and store now known as Ho. 160 (one hundred and sixty) Pearl-street, the other half of which is owned by Joseph Kernochan, a correct map of which said lot, Ho. 160 Pearl-street, and also of lot Ho. 162 Pearl-street, and lots Hos. 124 and 126 Water-street, hereinafter mentioned and devised, made by Joseph F. Bridges, City Surveyor, dated the tenth day of September, 1842, and certified to be correct by Joseph Kernochan and myself, is now on record in the office of the Register of the city and county of Hew York. I also give, devise, and bequeath unto
Second. I also give, devise, and bequeath unto my said wife all my household furniture, including all my silver and plate, wines, and library of books; all horses and carriages that I may own at the time of my decease; and also my pew (No. 98) in Grace Church in the city of New York.
Third. I give, devise, and bequeath unto my executors hereinafter named, and to the survivors and survivor of them, or to such of them as may qualify and act as such, the sum of two hundred thousand dollars of my personal estate, in trust, to invest or keep invested that amount in bonds and mortgages on unincumbered real estate, or in the stock of the city of New York, or of the State of New York, or of the United States, and to pay or apply the interest or income thereof to the sole and separate use of my said wife during her natural life; and upon her decease to pay over the said sum of two hundred thousand dollars as my said wife shall by her last will and testament, or writing in the nature of a last will and testament, direct and appoint.
Fifth. I give, devise, and bequeath unto my namesake, Henry Parish Kernoehan, son of my friend Joseph Kerüochan, in fee, my undivided half of the two lots and stores now known as Hos. 124 (one hundred and twenty-four) and 126 (one hundred and twenty-six) Water-street in the city of Hew York, the other half of which is owned by the said Joseph Kernoehan.
Sixth. I give, devise, and bequeath unto my friend, Peter Conrey of Hew Orleans, all my part or share of, or interest in the undivided real estate situated in the State of Louisiana belonging to my said late firm of Gasquet, Parish & Go., in trust to convey the same, or to pay over the proceeds thereof, to my namesake, Henry Parish Conrey, son of the said Peter Conrey ; a part of which undivided real estate is situated in Jefferson parish in the said State of Louisiana, and the balance (about three thousand two hundred acres of land) in Oachita in said State. It being my wish that the liquidating partners of my said late firm should be allowed, if they should think best, to sell said undivided real estate and pay over the proceeds to the said Peter Conrey, and in case the said real estate should be divided, it is my wish that the portion allotted or" set apart to me should be conveyed to my said namesake; my desire being not by this devise or bequest to embarrass my late partners in the liquidation or settlement of the estate of my said late firm.
Seventh. I give, devise, and bequeath unto my friend and relation, Mrs. Catharine Payne of the city of Hew York, the
Eighth. I give, devise, and bequeath unto my executors hereinafter named, and to the survivors and survivor of them, or to such of them as may qualify and act as such, the sum of twenty thousand dollars of my personal estate, in trust, to invest or keep invested that amount in bonds and mortgages on unincumbered real-estate, or in stock of the city of New York or of the State of New York or of the United States, and to pay or apply the interest or income thereof to the sole and separate use of my sister, Ann Parish, during her natural life; and upon her decease to pay over the said sum of twenty thousand dollars as my said sister shall by her last will and testament, or writing in. the nature of a last will and testament, direct and appoint.
Einth. I give, devise, and bequeath unto my executors hereinafter named, and to the survivors and survivor of them, or to such of them as may qualify and act, a further sum of twenty thousand dollars, in trust, to invest or keep invested that amount in bonds and mortgages on unincumbered real-estate, or in the stock of the city of New York or of the State of New York or of the United States, and to pay or apply the interest and income thereof to the" sole and separate use of my sister, Martha Sherman, wife of Allen M. Sherman, during her natural life, and upon her decease to pay over the said sum of twenty thousand dollars to her lawful issue, the
Tenth. I give, devise, and bequeath unto each of my executors hereinafter named, to wit, Daniel Parish, Joseph Kernochan, Joseph Delafield, Henry Delafield, and William Delafield, or to each of them who shall be living at the time of my decease, the sum of ten thousand dollars, to be received or retained by them in lieu of all commissions or compensation as such executors, and which ten thousand dollars each is to receive, whether he qualifies and acts as such executor or not.
Eleventh. The provisions herein made for my wife are intended by me and are to be accepted by her in lieu of her dower in my estate..
Twelfth. After the expiration of two years from my decease, and after all the foregoing provisions of my will shall have been fully provided for and complied with, or my executors shall be satisfied that they can fully comply with said provisions and also with the provisions hereinafter made, if the residue of my estate shall amount to, or exceed, the sum of two hundred and ten thousand dollars, then I give, devise, and bequeath the said further sum of two hundred and ten thousand dollars to my executors hereinafter named, and the survivors and survivor of them, or to such of them as shall qualify and act, in trust, to pay to my nephews, John H. Parish, and Daniel Parish, junior, (sons of my brother Daniel Parish,) and Jacob Parish and Thomas Parish, (sons of my brother James Parish,) respectively and to each of them who shall be then twenty-one years of age, the sum of ten thousand dollars thereof; and if either of my said nephews shall be then under twenty-one years of, age, then in trust to pay or apply the interest or income of the sum of ten thousand dollars to his use until he comes of age; and as my said
Thwteenth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, of every nature and description, (after all the devises, bequests, or legacies, hereinbefore specified, shall have been fully paid or provided for, and after the preceding provisions of my will shall have in all respects been fully complied with,) to my brothers, Daniel Parish and James Parish, equally, share and share alike, and in case of the decease of either, his share is to go to his lawful issue.
Fourteenth. It is my will and intention that all the property, real and personal, that I may own or possess at the time of my decease shall pass under this will, whether the same be now owned or possessed by me, or may be hereafter ’
Fifteenth. And inasmuch as the devises and bequests herein contained of real estate, situated in the State of Louisiana, may prove insufficient to vest the same as I have hereinbefore provided, it is my will that my heirs-at-law, by whom the said real estate would be inherited in ease it should not pass under this will, do release or convey the same in conformity with the devises thereof contained in this will; and the devises, bequests, and legacies contained in this will to or for the benefit of my said heirs-at-law, are made upon the express condition that my said heirs shall so release or convey the said real estate in Louisiana in ease it should become necessary or proper, in order to carry my will in respect to'said real estate into effect. And in case my said heirs-at-law should not so release or convey said real estate in Louisiana, I revoke the provisions herein made for them, and I give, devise, and bequeath the sums and property hereinbefore devised, bequeathed, or given to them, or to my executors for their benefit, to my wife, except the sum of five thousand dollars which I give to my said namesake, Henry Parish Conrey, in lieu and stead of the provision hereinbefore made for him.
Sixteenth. I nominate and appoint my brother, Daniel Parish, and my friends, Joseph Kernochan and Joseph Delafield, to be three of the executors of and trustees under this my last will and testament; and in order to give as little trouble as possible to my executors, I desire the said three to first qualify and act as such; and I also nominate and appoint my friends, Henry Delafield and William Delafield, to be two additional executors and trustees, and I desire them to qualify and act as such executors and trustees, whenever any two of the three first-named executors and trustees shall
Henry Parish, [l. s.]
Signed, sealed, published, and declared by the testator, as, and. for, his last will and testament, in our presence, who, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names and places of residence as witnesses thereto, at the city of New York, this twentieth day of September, one thousand eight hundred and forty-two. Charles Gr. Havens,
9 Nassau-street, New York.
Wm. Ed'. Saunders,
116 Wooster-sfcreet, New York.
I, Henry Parish, by way of codicil to my last will, give to my dear wife, in fee simple, the following lands: namely^ the lands on which my dwelling-house, conservatory, stable, and the adjoining dwelling on Broadway, are erected, situate at the corner of Broadway and Seventeenth-street on Hnion Square, and the rear lot on Eighteenth-street. Also the lands and building owned by me in Wall-street, now known as number 67 Wall-street.
In witness whereof I have subscribed these presents as a codicil to my will, this twenty-ninth day of August in the year of our Lord, one thousand eight hundred and forty-nine.
Henry X Parish.
Signed by me by direction of H. Parish, Dan. Lord.
Henry Parish, his X mark.
Subscribed by Henry Parish as a codicil to his will, and declared by him as such in our presence attesting the same .at his request. The contents having been read to and understood by him. E. Holbrook, Northeast corner Fourth
Avenue and Eighteenth-street.
Daniel D. Lord, Nineteenth-street, New York City.
Daniel Lord, 26 Beach-street, New York.
On this seventeenth day of December, 1849, Henry Parish again subscribed the above in our presence, it having been
Daniel Lord, 26 Beach-street, Hew York.
E. Holbrook, Hortheast corner Fourth Avenue and Eighteenth-street.
By tMs codicil to my will, executed September 20, a. d. 1842, I, Henry Parish, do hereby devise, bequeath, and dispose as follows: First. Hnto my dear wife, Susan Maria Parish, her heirs and assigns forever, I give my land and dwelling-house on Union Square (known as number 26 East Seventeenth-street) in which we live, and the land in the rear to Eighteenth-street, on which the stable is built; and also the lot on the corner of Broadway, on which the conservatory is built, and the adjoining lot on the easterly side of Broadway, known as number 860 Broadway, now occupied by Mrs. Catharine Payne, the said lands all lying together; also I give to her, in fee simple my land on Wall-street, with the building thereon, known as number 67 Wall-street; all in the city of Hew York.
Second. Unto my wife, Susan Maria, I also give the stocks, bonds and securities following, namely: One hundred and fifty-three shares of the stock of the Bank of Commerce; two hundred shares of the stock of the Metropolitan Bank; twenty-five shares of the Hew York and California Steamship Company stock; fifty shares of the Panama ¡Railroad Company stock, and two thousand and fifty-eight shares of the stock of the Phoenix Bank; a bond and mortgage of Helson Shook, and a bond and mortgage of Philip ¡Kelley; which stocks and mortgages by my direction have been put into her name. Also I give her twenty bonds of the Hudson River Railroad Company; twenty-five (income) bonds of the Erie Railroad Company; twenty (mortgage) bonds of the same company; twenty-five bonds of the Watertown and Rome Railroad Company; twenty-seven bonds of the Hew York and Harlem Railroad Company; twenty-five bonds of the Hew York and Hew Haven ¡¡Railroad Company; twenty bonds of the Pennsylvania Coal Company; ten other bonds
If any of the stocks or bonds above given should be sold or paid off in my lifetime, the same shall be made good to her by an equivalent of other stocks held by me; or if my estate have no stocks for that purpose, in money.
The gifts in this codicil to my wife, are in addition to what is given her in my will: some of the lands given to her in the said will have been sold.
TJwrd. I bequeath to the American Bible Society ten thousand dollars; to the Orphan Asylum Society, in the city of New York, I bequeath ten thousand dollars; to St. Luke’s Hospital, in the city of New-York, I give ten thousand dollars; to the New York Eye Infirmary I bequeath twenty thousand dollars; all payable two years after my decease.
Fowrth. I revoke the appointment of Daniel Parish to be one of my executors (in the seventeenth clause of my will) and the gift of ten thousand dollars to him as executor in the tenth clause thereof.
In witness whereof I have subscribed this codicil, as a codicil to my last will and testament, and have published the same as such, in presence of the witnesses subscribing with me, this fifteenth day of September, in the year of our Lord one thousand eight hundred and fifty-three.
Henry Parish, his X mark.
Subscribed by Henry Parish (whose name was written by
Ch. Augt. Davis, No. 1 University Place, New York.
Daniel Loed, 34 West Seventeenth-street, New York.
By this further codicil to my will (dated September 20th, 1842), I, Henry Parish, do devise, bequeath, and direct in manner following, namely: I give, devise, and bequeath to , my wife, Susan Maria Parish, all the rest, residue, and remainder of my estate, real and personal, as it shall be at my decease (after all the devises and legacies in my will and codicils which shall actually take effect shall be provided for) to have and to hold, to her, her heirs, executors, administrators and assigns forever; and in case she shall survive me, I revoke the thirteenth article of my above-written will. In witness whereof, I have subscribed this codicil subjoined to my said will, this fifteenth day of June, in.the year of our Lord one thousand eight hundred and fifty-four.
Henby Paeish, his X mark.
Subscribed as a codicil to his will by Mr. Henry Parish in our presence,, his name having been, by his direction, written by Daniel Lord subscribing witness; and the codicil having been read to him, he declared that he had subscribed it as a codicil to his will, and requested us to attest the same. 1854, June 15th. Daniel Loed, 34 West Seventeenth-street,
New York.
John Waed, 8 Bond-street, New York.
The probate of all these papers was resisted by Mrs. Sherman and Miss Anne Parish, the, sifters of the decedent; and the codicils were contested by Daniel Parish and James ■Parish, the brothers of the decedent, who are named as residuary devisees and legatees in the thirteenth clause of the will. At the date of the will, September 20th, 1842, the decedent was in good health, and in the free unabated possession and enjoyment of his mental faculties. On the 19th day
Rarely, if ever, in the annals of justice has a case been presented involving at its trial such a close and rigid investigation of every fact having a material bearing, however remote, upon the issue; exhibiting scientific examination and criticism of the highest order, upon physical and rational phenomena; developing in its progress questions of profound interest to the physiologist and to the jurist; and finally discussed and illustrated with forensic power and brilliancy worthy of admiration. To pass judgment in such a cause, tantas corrvponere Utes, is a task of no ordinary labor and gravity. It has, however, fallen to my lot; and having, as it were after a long and toilsome journey, arrived at a conclusion, it remains for me to indicate the grounds upon which it is based.
Before stating the reasons of my decision, I feel an obligation, and certainly find it a pleasure, to say that the view of the case, which is in my judgment controlling, has rendered it unnecessary to consider matters of domestic and family relation with any special minuteness. I have seen no reason for impeaching the motives of any of the parties interested, or for attributing acts usually betokening affection, to unworthy and sinister intentions. ■ The controversy, I am satisfied, depends upon the application of certain rules of law to the evidence concerning the condition of Mr. Parish after his attack, and without any reference to the question of actual undue influence or fraudulent procurement, which is generally involved in cases of this character. There were three interests represented before me — one in favor of intestacy, one in support of the will alone, and one' in support both of will and codicils.
I. On behalf of the sisters of the decedent, it was contended that the will of September, 1842, was totally revoked, “ First, because,” to employ the language of this allegation,
The first position in this argument is grounded on “ the intention of the testator,” to revoke, and it involves the assertion that after the paralytic seizure in July, 1849, he possessed sufficient capacity to revoke his will, and to express his intentions in that respect. But if he could revoke his will, why could he not make a codicil, and if so, there was no intestacy. This difficulty, therefore, necessitates the further proposition that the decedent had, after his attack, a degree of mental power adequate to revoke, but inadequate to create — potential to annul the will, but impotential to establish the codicils. If there be such a stage between the rational and the imbecile as this, it is difficult to define or characterize it abstractly by marks or tokens, and equally difficult to demonstrate it in the living subject. But to test this question in its strongest position, let us suppose the codicils inoperative, and that the decedent had continued in the full vigor of his intellect, and the unimpeded power of expressing his ideas from the execntion of the will in 1842 to the very day of his death, would there have been a valid revocation of the will ? It will readily- be admitted that a mere intention to revoke never effectuates an express revocation. -The most satisfactory evidence that the testator had repeatedly and. explicitly declared that it was his deliberate design to annul or destroy his will, would not authorize the
But passing from express to implied revocations, we find the doctrine of implied revocation placed at times upon a presumed intention to revoke, derived from certain acts and circumstances; but apart from such acts and circumstances no consideration has ever been given to mere intention. At other times the doctrine of implied revocation has been placed upon the ground of a tacit condition annexed to the will at the moment of celebration, that it should not take effect under certain circumstances. But however the courts may have differed as to the speculative reasoning upon which the legal rule was founded, there is no difficulty in ascertaining what circumstances have been adjudged sufficient to constitute an implied revocation; and having reached and defined that standard, we shall have nothing more to do than to apply the test to the case in hand.
At common law there were two classes of implied revocations : first, such as were declared by the law in view of a change in the testator’s circumstances, especially his family relations, since the execution of the will, and which effected a total revocation of the will and all its dispositions. This class was received in consideration by the probate courts. The doctrine on this point was derived from the Boman jurisprudence, and adopted with some modification. The civil law evinced a tender regard for the protection of children from the carelessness, caprice, or injustice of parents, and for this purpose it was required in order to exclude a son from the inheritance, that he should be expressly disin
The second class of implied revocations at common law, were revocations by alienation or such acts of the testator in regard to his property, as indicated an intention to exempt the property dealt with or attempted to be dealt with, from the dominion of the will. ■ These revocations sprang from dealing with the property which was the subject of testamentary gift, and their extent was consequently commensurate with the dealing.' So far as relates to particular devises or bequests which become inoperative before the testator’s
Where I guided then by the rule of the common law, I should be compelled to decide that the will of Mr. Parish made in 1842, was not revoked by any change of circumstances, there being no subsequent marriage or birth of issue, and no such acts in regard to his property as would in any court exempt his entire estate from the dominion of the will.
But the whole subject has been definitely determined by the statutes of this State. In the Statute of Wills (34 Henry VHL, c. 5) there was no provision respecting revocations, and .the courts continued to allow paroi proof, as before, oí revocation-, until by the Statute of Frauds (29 Charles H., c. 5) it was prohibited. A long struggle ensued, to escape from a rigid application of the statute, and it became so evident that an exact compliance with its provisions, occasionally effected great injustice and hardship, that the judges were led to adopt the rule that implied revocations were not within its purview. As in all cases of such expedients, the remedy was worse than the disease. In the effort to overcome the inconvenience of a literal compliance with the law, in particular instances presenting strong inducements for equitable interference, the tribunals opened a wide field for
This is plain and pointed language, and it presented to the law-making power in the clearest manner the evil to be cured and the mode of curing it. The sections recommended for this purpose were' adopted precisely as reported, except
II. By the will the testator’s two brothers were constituted residuary devisees and legatees. The residue, which at that date, 1842, was estimated under forty thousand dollars, had increased very largely in 1849, and continued to accumulate rapidly until the testator’s decease. The dispositions contained in the codicils, which were all made after the stroke of apoplexy in 1849, are all in favor of Mrs. Parish, with the exception of gifts to charitable uses amounting to fifty thousand dollars. Are these codicils, or is either of them,.valid? The determination of this question involves primarily an ascertainment of the mental condition of Mr. Parish, in connection with his bodily condition: for though it be true that in eo qui testatw\ imtegritas mentis non corporis exigenda est, yet in the present instance the rational was intimately associated with the physical state.
Mr. Parish was attacked in the month of July, 1849, with a stroke of apoplexy and paralysis. After the seizure “ he soon began to exhibit confused consciousness“ he recovered somewhat rapidly from this condition,” and in the course of two or three weeks was able to sit up. From about the first of August, according to the evidence of Dr. F. IT. Johnson, his progress in convalescence was “ regular and rather more rapid than ordinary.” The first codicil was executed on the twenty-ninth of August. Prior to this time, Dr. Johnson was able to communicate with him in propounding “ simple questions as to the condition of his health and his symptoms,” which “ he appeared to understand,” and “ to answer intelligibly” by “ a nod of the head and an attempt to say yes,” or by “ a shake of the head and a similar attempt to say no.” The Doctor says: “ He looked at me attentively while questioning him, apparently with intelligence;” his answers “were given promptly and decidedly;” “he appeared to understand simple questions regarding his health; I. cannot say that he might not have understood questions equally simple regarding other affairs.” Dr. Delafield states
It is not necessary for the exposition of my view of the case to exhibit a minute analysis of the special circumstances upon which the witnesses based their judgment as to the-absence or presence of intelligence; nor to canvass the opposing medical opinions given by professional experts. I
III. “ We may safely assume,” observes Sir Benjamin Brodie, “ as an established fact, that it is only through the instrumentality of the central parts of the nervous system that the mind maintains its communication with the external world.” When therefore disease invades this nervous centre, we may expect, and we ordinarily find, some degree of disordered mental action. The weight of authority and observation is in favor of the position that apoplectic hemiplegia is accompanied with more or less disturbance of the intellectual faculties, and if the paralysis become permanent and severe, it is associated with symptoms of enfeebled mind. The same tendency is observed likewise in epilepsy. It is probable, therefore, that the faculties of the testator were
When we approach other acts of greater significance, we are embarrassed with the difficulty arising out of the absence of definite means of communication. The proposition on the one side, that the testator’s mind continued clear, sound, and in normal condition, that he comprehended, and his only inability consisted in the loss of the usual mode of expression, were it true, is not, from the nature of the. case, capable of satisfactory demonstration. On the other hand, this very fact of the abrogation of speech is attributed, not to a mere paralysis of the organs of the voice, but to mental weakness. One theory refers the phenomena to mental and the other to physical difficulty. A man may be unable to speak either because he has no ideas, or because he has no efficient vocal organs — because there is nothing to express, or no power of expression. The probability in favor of either view must be determined by other considerations, and on other evidence than the mere absence of the power of spéech.
IV. Let us take the case of a person of fair capacity and intelligence, decision of character, and firm will, accustomed to read and write, suddenly deprived of speech. The mind is imprisoned in its full vigor and its unabated powers, and there is an instinctive and immediate effort towards expression in the usual modes by words and sounds, and these failing, by signs and gestures. The desire foi communication is one of the first impulses of our nature. To be cut off from all expression of thought and sentiment, to be deprived of the means of moral, social, and intellectual communion, to be shut up in the chambers of the soul without the power of telling to the objects of our affections or friendship our wants, sorrows, joys, and hopes, is so terrible a calamity that all the powers of the mind and all the resources of ingenuity are called into action to devise the means of escape. We accordingly find in cases where the faculties are not impaired,
V. Hot possessing the means of communication, Mr. Parish was evidently void of the power of indicating such ideas as his mind was capable of conceiving, and of carrying out his wishes into actions, unless by signs or expressions he could direct the ingenuity of those around him to the -suggestion of the idea to him, so as to call for his answer. He could therefore perform no act requiring the intervention of others, unless the volition had first passed through the mind ot another, and been returned to him — and then, to be the proper expression of his mind, the thought so returned must be the exact counterpart of his. If it varied, he had no power to modify it or to invite a new. suggestion, except by total rejection; and yet it might be as far from his wish to reject it totally, as to adopt it wholly, and to do either would endanger or destroy the chance of its repetition in a modified form. To answer in the negative or in the affirmative might be equally aside of his purpose. He was therefore substantially deprived.of the power of spontaneous action, or indeed of any action at all except within the narrow boundary of assent or dissent to interrogative propositions; unless the object of his wishes were placed within his view, and then he was incapable of expressing any complicated thought. This is true — however strong may have been his desires or his determination, or however rational the action of his mind; but, if his mental faculties were weakened, then, in addition
By the Boman law it was ordained that the writer of another’s testament should not mark down a legacy for himself. (Suet. NeR, 17, Dig. 1. 48, 34.), Although this was not adopted as an absolute rule in the spiritual courts of England, yet it has been constantly recognized in testamentary cases to the extent of requiring a different degree of proof where the will has been made by the intervention of the party profiting by its provisions, and occupying relations of confidence and influence towards a testator of weak or doubtful capacity. For example, where the parties are in the
YI. There is, of course, no arbitrary standard of what constitutes satisfactory extrinsic evidence; for as the object is to ascertain whether the alleged disposition' conforms to the intent of the decedent, regard must be had to his special condition, the state of his family relations, the condition oi his fortune, the natural objects of his bounty, his expressed declarations, his previous testamentary acts, and many other circumstances tending to inform the mind of the court whether the will propounded was a reasonable and probable act.
In respect to the first codicil, two circumstances incline me to admit it to probate. In the first place, it is rather in confirmation of the dispositions of the previous will than in hostility to them. By the will the testator had given to Mrs. Parish his residence in Barclay-street, together with the house adjoining, after Mrs. Payne’s decease. He subsequently sold this property, and the value of other devises in her favor had somewhat diminished. Prom the testimony of Mr. Havens, it is clear that the testator was anxious “ to make a very ample and liberal provision for his wifehis expressions on this point were repeated and emphatic. It was quite natural, therefore, that when he had purchased the land on Hnion Square, as a site for a new residence, he should propose a change in his will conformable to this new plan.
I am inclined to think more favorably of the condition of the testator’s mind prior to the illness of October, 1849, and to the . appearance of the epileptic spasms, than afterwards. Tile first action of the apoplectic stroke upon the brain is of a mechanical character. The authorities favor the conclusion that on the absorption of the blood and removal- of the pressure, in ordinary cases of apoplectic effusion, we may “ look for a fair degree of recovery in the course of a few weeks.”
VII. As to the remaining codicils there is no such extrinsic evidence, and from the nature of the case there could be none, as the subjects of disposition substantially accrued after July, 1849, and the means of communication, after that date, were interrupted. But it is claimed that the proportion of his estate bequeathed to Mrs. Parish, according to its value in 1842, rendered it probable that when his property appreciated so largely, he would proportionately increase the provisions in her favor. This may or may not be. It is mere conjecture, founded on the notion that the will was only a temporary or conditional adjustment. The whole tenor of the evidence on this point, however, gives a different impression.
Though made on the eve of a contemplated voyage to Europe, the will was prepared with careful reflection. There were frequent and almost daily consultations between Mr. Parish and the counsel employed, during a period of about two weeks; and, to use the language of Mr. Havens, “ the matter was done with the utmost deliberation and consideration — much more than in any other case which occurred
The testamentary power has always enjoyed the highest degree of favor from the law. It has come down to us through a long series of ages from the fountains of Homan jurisprudence, with sanctions, guards, and muniments designed to secure as well the liberty of the testator as the peace and the welfare of society. Experience and high considerations of public policy have manifested the necessity of certain rules for its exercise, not only as to substantial requirements, but
1. The will, bearing date 20th September, 1842, was a valid subsisting testamentary instrument at the time of the decedent’s death, and remained unaltered and unrevoked, except to the precise extent and degree it was modified by acts of the decedent subsequent to its date.
2. The decedent by his attack in July, 1849, was not permanently deprived of testamentary capacity. His faculties, however, were enfeebled and impaired, and his power of mental manifestation was greatly affected.
3. In a case of this kind it becomes necessary to satisfy the court, beyond the mere factum of the instrument, that
4. It is proper therefore to inquire whether the act was reasonable, natural, and probable; whether it was conformable to his known affections and dispositions, and consistent with his previous declarations and intentions; whether it was in favor of parties occupying positions of influence; and who were active in its suggestion, and participated in its performance ; whether the decedent was dependent upon the beneficiaries in his ordinary habits of life, and the management of his property and affairs; and whether he was capable of giving, and did give instructions, and originate the provisions. Through these various lines of examination a conclusion may be attained, whether there is or is not affirmative proof in aid of the instrument.
5. Placing my judgment upon these principles, and their application to the proofs, I have determined that the evidence in respect to the codicils of September 15th, 1853, and June 15th, 1854, does not justify their establishment: that in view of the time of the execution of the codicil of August 29th, 1849, the circumstances, previous, attendant, and subsequent —the state of the decedent’s mind at that stage of his disease, and with a due regard to the subject of that instrument ..(the dwelling-house on Union Square and the Wall-street premises), there is reason to conclude upon the evidence that the provisions of this codicil were in harmony with his wishes.
There must be sentence admitting the will and the first codicil, and rejecting the other instruments propounded. The costs of the parties will be paid out of the estate.
The proponent, Joseph Delafield, as executor and legatee,-and Mrs. Parish, as legatee, appealed to the Supreme Court from that part of the Surrogate’s decree which rejected the second and third codicils. The Supreme Court, at General Term, affirmed the Surrogate’s decree, with opinion by Davies, J.
An appeal was then taken to the Court of Appeals, where the judgments below were affirmed, with opinions by Davies, Seldem, and Gould, JJ.
delivered the opinion of the court.
This is an appellate tribunal, and its ordinary duty is to review the decisions of the court from which appeals lie to it, solely on questions of law. There is a class of cases, however, where it is incumbent on us to review questions of fact, and the present cases are of that character. We are called upon, by the appeals taken therein, to affirm, or reverse, the decree of the surrogate of Hew York, which on appeal has been affirmed by the Supreme Court of the First Judicial District. By that decision the surrogate refused to admit to probate two codicils to the will of Henry Parish, deceased, alleged to have been made by him, one on the 15th of September, 1853, and the other on the 15th of June, 1854.
It appears that Mr. Parish, while in conceded health, in the full possession of all his faculties, and after much deliberation, frequent consultation and discussion with his counsel, on the 20th of September, 1842, made and executed his last will and testament. Although his attention seems to have been afterwards, on several occasions, attracted to its provisions, and although he must have been aware that the devise to his wife of two pieces of real estate, in the city of Hew York (one of which was the dwelling-house occupied by them), had been rendered inoperative by the sale of them, and although he was equally conscious that his estate had been greatly augmented, and was constantly increasing by its annual accumulations, yet while in health he intentionally and deliberately declined to make any alterations in its provisions, and for nearly seven years, notwithstanding these and other changes, persistently adhered to it, as originally framed and executed. It is seldom that so much intelligent consid
On the 19th of July, 1849, Mr. Parish, while in the apparent enjoyment of full health, was struck with an attack of paralysis, described by the physician as hemiplegia. Whether or not he had testamentary capacity after that period, has been the subject of the elaborate investigation, and the learned, able, and extended discussions in these cases.
At the time the will of 1842 was made, the testator had no child, and made no provision for any. He never had one. He estimated the total of his estate, real and personal then, to be $732,879. By this will he gave to his wife $331,000, including the two pieces of real estate subsequently sold by him, and which he estimated at $23,000. To the relatives of his wife he gave specific legacies amounting to $95,000. At the time of his attack, although he had reduced the provision made for his wife, $23,000, by the sale of the two pieces of real estate mentioned, yet he had increased the value of the Hew Orleans real estate given to her, by an expenditure thereon amounting to $21,500, and by addition to his furniture, paintings, statuary, silver, &c., equal to about the sum of $25,000, all which, by the provisions of the will, were given to her. He had therefore kept good the .amount secured to Mrs. Parish by the will, and had enhanced it in the manner indicated, so that on the 1st of July, 1849, it amounted, according to his estimate, to about the sum of $350,000.
He thus, on grave deliberation, gave to his wife and her relations nearly two-thirds of his whole estate as it then existed. By his will he also gave specific legacies to various relatives of his own blood, and to personal friends, amounting in the aggregate to the sum of $270,000, and then gave the residue a/nd remainder of his estate to his two only and surviving brothers, Daniel Parish and James Parish. The amount they would have taken, according to the testator’s estimate of his estate, at the date of his will, if it had then taken effect by his death (an event which it is apparent he did not then contemplate as likely soon to happen, being
At this time the testator’s income was about $60,000 annually, and his expenses were about $10,000 a year. Without any extraordinary expenses or outlays on his part, the testator must have been aware that his estate would be augmented by its natural increase by about the sum of $50,000 annually, and this entirely independent of the additions by profitable investments, and other uses of his means, which it is apparent were employed by him to increase his wealth. The inventory of his estate made by him July 1,1849, shows it had increased in seven years, at the valuation he then put upon the various items of his property,
Such was the permanent character of the disposition made by the testator of his estate, in full health, and such his final and settled purpose in reference to it, down to the time of his attack in July, 1849. From thence till his death, in March, 1856, the wife of the deceased was hardly ever absent from his presence, and she and her relatives were his constant companions and attendants, to the exclusion almost wholly of his own relations, with whom, up to this period, it would appear, he had always lived on terms of intimacy and cordiality.
Mr. Parish having recovered from the severity of his attack, a codicil was prepared at the sxxggestion of Mrs. Parish, for him to execute, and which was executed on the 29th of August, 1849, whereby the testator gave to his wife certain real estate, amounting in vahxe to about the sum of $200,000. The learned counsel who drew this codicil at the request of the devisee, and superintended its execution, having, as he says, fears that others might have doxxbts of the testamentary capacity of the testator, recommended that it should be re-executed when his health and mind should have improved; and it being supposed that such improvement had taken place, it was accordingly re-executed on the 17th of December, 1849.
On the 15th of June, 1854, a third codicil was prepared by the same counsel at Mrs. Parish’s suggestion, and which was executed on that day, which revoked the residuary gift and devise in the will of 1842 to the brothers Daniel and James, and installed Mrs. Parish in their place as the devisee of the whole residue of his estate.
It would seem from the testimony, if Mr. Parish’s signs and gestures were correctly interpreted, that it was his will, at the time of the re-execution of the codicil in December, 1849, to revoke and annul the specific legacies, amounting to the sum of $130,000, given by the original will to the children of his brothers Daniel and-James; and it appears he was only deterred from insisting that it should then be done, by the remark of the counsel, “ that he wished it might not then be done; that it would fatigue and- disturb Mr. Parish;
The surrogate of Mew York, after a most protracted examination of witnesses, with the opportunity of hearing, and himself taking down their testimony, carefully weighing and arranging it as the investigation proceeded, scrutinizing each witness, and his manner on the stand, with the great advantage of personally seeing the intelligence, candor, accuracy, and truthfulness of each; aided by the elaborate discussions
Before proceeding to the examination of the facts in the present case, it may aid us in arriving at a correct conclusion to advert to a few rules of law, which it is deemed are well recognized and long established.
It is provided' by the statute law of this State, that “ all persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament'” duly executed, in accordance with the formalities prescribed by law (2 Rev. Stat., 57, § 1); and that “ every male person of the age of eighteen years or upwards, and every female not being a married woman, of the age of sixteen years and upwards, of sound mind and memory, and no other, may give and bequeath his or her personal estate by will, in writing” (2 Rev. Stat., 60, § 21); and the Statute of Wills of 34 & 35 Hen. VIII., declares that no will of lands shall be valid if made by any “ idiot, or by any person of non sane ■memory.'” But competency to execute a testament does not exist, unless the alleged testator has reason and understanding sufficient to comprehend such an act. a (Swinburne on Wills, part 2, § 4; Marquis of Winchester Case, 6 Rep., 23 a; Combe’s Case, Moore, 759; Herbert v. Lows, 1 Ch. R., 12, 13; Mountain v. Bennett, 1 Cox, 353.) In the Marquis of Winchester Case, it is said that “ by law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions; but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason,
In Marsh v. Tyrrell (2 Hagg., 122), that experienced and learned judge, Sir John Kicholl, said : “ It is a great but not uncommon error, to suppose, that, because a person can understand a question put to him, and can give a rational answer to such a question, he is of perfect sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be j udged of by the nature of the act to be done, from a consideration of all the circumstances of the case.”
The observations of Ekskine, J. (Harwood v. Baker, 3
In Den v. Johnson (2 Southard, 454), the chief-justice, in charging the jury on this point, said, “ that a disposing mind and memory is a mind and memory which has the capacity of recollecting, discerning, and feeling the relations, connections, and obligations of family and blood; that, though it
In Boyd v. Eby (8 Watts, 66), Sergeant, J., in delivering the opinion of the court, says: “ The great, broad; and intelligible question is, whether the mind was restored so as to be sound, whole, compos ; or whether a portion of its thinking and judging powers, as connected with the subject of the will, remained mangled and perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate,' with judgment and discretion.” In Shropshire v. Reno (5 J. J. Marsh., 91), Robertson, Ch. J., observed that the facts in that case led the court to the opinion “ that the testator had not a disposing mind ; or that, if he ever had, it was not in a disposing state. He was not superannuated, nor was he absolutely stultus ovfatuus; but all the facts combined tend to show that he had not a sound memory, nor sufficient mind, nor a mind in a proper state for disposing of his estate with reason, or according to any fixed judgment or settled purpose of his own. This we consider the true test, established not only by philosophy, but by law.” Converse v. Converse (31 Vermont, 168) lays down the rule, “ that if the testator, when he made the will, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as
In Newhouse v. Godwin (17 Barb., 236), Strong, J., thinks the rule established, referring to the Lispenard case, and Blanchard v. Nestle, that the wills of excessively weak persons, — and by those he says he means persons of the lowest degree of mental capacity, where there is a glimmer rather than light, — are to be sustained; and he says we must submit to it, whatever may be our opinion as to its necessity, propriety, or expoediency.” This court, in two late cases under its consideration (Buel v. McGregor, and in the Matter of the Will of Richard Ustick), has not considered this' rule
We are next to consider upon whom the law casts the burden of establishing the will of a deceased person. The party producing the paper, or the proponent of a will, makes the allegation that it is the will or the wish of a free and competent testator, and the onus próbandi is upon the party propounding the alleged testamentary paper. The conscience of the court is to be satisfied by the party setting up the will, that it is the will of a free and capable testator. This clearly recognized rule is well expressed by Parke, B., in delivering the judgment of the Judicial Committee of the Privy Council in Barry v. Butlin (1 Curt., 637; 2 Moore P. C., 480), where he says : “ The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, and they have been acquiesced in on both sides. These rules are two : the first, the onus próbandi, lies in every case upon the party propounding the will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” Again: “ In all cases, this onus próbandi is imposed on the party propounding a will.” In the late case of Broming v. Budd (6
In Pamton v. Williams (2 Curt., 530; 2 Notes of Gases, supplement, 21-29), certain papers propounded as the will and codicils of a party deceased, opposed on the grounds of forgery and fraud, were pronounced for by the Prerogative Court, but with great doubt and difficulty. That sentence was reversed by the judicial committee of the Privy Council, further evidence having been admitted. Lord BboughAm, in delivering the opinion (2 Notes of Oases, supplement, 29), said: “ It is of itself not immaterial to consider that the contention of those who are setting up these papers is incumbered with so much difficulty; for whether the question arises between a will and an alleged intestacy, or, as in the present case, between one will and another of a prior date, the proof being upon the party propounding any testamentary writing, the course of administration directed by the law is to- prevail against him who cannot satisfy the conscience of the court of probate that he has established a will, or the prior instrument which is liable to no doubt, is to be established in preference to the posterior one, which cannot be so proved to speak the testator’s intentions, as to leave the court in no doubt that- it declares those intentions. There is no duty cast upon the court to strain after probate, and to grant it where grave doubts remain wholly unremoved, and great difficulties oppose themselves to our progress, which we are quite unable to surmount.” Again, he says: “ It may suffice to say, that the proof eminently lies on him who sets up a will; and further, that it is more fatal than to his adversary if he leaves difficulties entirely without explanations.” He adds:
In Baker v. Batt (2 Moore P. C., 317), Parke, B., said': “ Ho rule has been acted upon in the court below which has not been long observed, not only in the ecclesiastical courts, but those of common law.....For if the party upon whom the burden of the proof of any fact lies, either upon his own case, where there is no conflicting testimony, or upon the balance of evidence, fails to satisfy the tribunal of the truth of the proposition which he has to maintain, he must fail in his suit, and that in a court of probate where the onus probczndi most undoubtedly lies upon the party propounding the will, if the conscience of the judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the paper in question does contain the last will and testament of the deceased, the court is bound: to pronounce its opinion, that the instrument is not entitled to probate; and it may frequently happen that this may be the result of an inquiry, in cases of doubtful competency in particular, without the imputation of wilful perjury on either side; or it may be, the judge may not be satisfied on which side the perjury is committed, or whether it certainly exists.”
We have quoted thus largely from this opinion, for the reason that it is, to our mind, one of the most able and satisfactory upon the points under consideration in this case with which we have met. It is most carefully considered, ably reasoned, and fully sustained by authority. Its results command our entire assent. (See, also, Quick v. Mason, 22 Maine, 438; Cilley v. Cilley, 34 Id., 162; Wallis v. Hodgson, 2 Atk., 56; 1 Powell on Devises, Jarman’s ed., 81; Newhouse v. Godwin, supra', Clarke v. Sawyer, supra.) In this connection, it may be well to add a few remarks from the opinion of Mr. Justice Ekskihe, in the case of Harwood v. Baker (3 Moore P. C., 382). They are in point, and lay down with accuracy the principles which should govern us in the examination of the evidence in this cause. He says: “ Keeping in mind the principle, that in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially
. It seems to us that these cases fully establish the following propositions:
1. That in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question does declare the will of the deceased; and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and memory.
2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will, and the testamentary competency by the attesting witnesses, but remains with the party setting up the will.
3. That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question does contain the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled to probate.
4. That when it is sought to establish a posterior will, to overthrow a prior one made by the testator in health, and under circumstances of deliberation and care, and which is free from all suspision, and when the subsequent will was made in enfeebled health, and in hostility to the provisions of the first one; in such case the prior will is to prevail, unless he who sets up the subsequent one can satisfy the conscience of the court of probate that he has established a will. And also the prior will is to prevail, unless the subsequent
5. That it is not the duty of the court to strain after probate, nor in any case to grant it, where grave doubts remain unremoved, and great .difficulties oppose themselves to so doing.
6. That the heirs of a deceased person can rest securely upon the statutes of descents and distributions, and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showing that the will was executed with the formalities required by law, and by a testator possessing a sound and disposing mind and memory.
The maxim, Qui se seripsit haeredem, has imposed by law an additional burden on those claiming to establish a will under circumstances which call for the application of that rule, and the court in such a case justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testimony in the present case. The two codicils under consideration were exclusively for the benefit of Mrs. Parish, with the exception of the charitable gifts; and although they were not actually written by her, yet they were drawn up at her suggestion,. upon her procurement, and by counsel employed by her. She prepared and gave the instructions for them, and in judgment of law they must be regarded as written by herself: Facitper odium, faeit per se. The rule which should govern the court in such a case is enunciated in Barry v. Butlin (1 Curt., 637). It is there said, that if a party writes or prepares a will under which he takes a benefit, that it is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which" it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. By the civil law such a will was rendered void, and it may be well doubted whether we have
In this case, conceding that Mr. Parish had some mind, it must also be conceded that it was greatly enfeebled; and it is undeniable that he was very much in the power of those by whom he was surrounded, unable to communicate except by their aid and through their interpretation, and in answer to questions which they saw fit to make, and by assenting to or dissenting from such suggestions as were made to him. Mrs. Parish was for all purposes his only channel of communication, and his sole interpreter, and the only person from whom all suggestions fruitful of results came; and it follows, conceding she might not have been the actual scrivener, or even not the employer as principal of the scrivener, that the same rule should apply as in cases when the scribe is the chief beneficiary under the will. ‘ The reason of this rule would require that these codicils should be fortified and supported to the same extent, and in the same way, as if she had drawn them herself.
Having, as we think, distinctly and satisfactorily ascertained the principles of law which should govern courts in the determination of testamentary cases, and which we have been thus careful to announce as safeguards for the protection of the community, we now proceed to the application of those principles to the testimony in the present case. Such an examination must necessarily in this discussion be confined to its more salient parts. The testimony occupies three octavo
It is impossible, within any reasonable or practicable limits, to review in detail the mass of testimony taken in the present case. A very large portion of it is occupied with the opinions of many highly intelligent and respectable gentlemen, having more or less opportunities for observation of the mental vigor of Mr. Parish after his attack, and their conviction that he understood what was said to him, by signs and gestures, and in some instances by the use, as they understood him, of the monosyllables “ yes” and “ no,” thereby communicating his thoughts and wishes to those around him. Opinions of witnesses, however respectable, can only have weight and value when accompanied with the facts upon which they are based, and, having the facts, it is for the j ury, or the tribunal called upon to scan and consider the testimony, to see if the conclusions and opinions of the witnesses are sustained by the facts detailed by them. Opinions without facts are of but little importance. (Clarke v. Sawyer, 3 Sandf. Ch., 351; Cilley v. Cilley, supra; De Witt v. Barly. 17 N. Y. [3 Smith], 340.)
We shall advert only to such portions of the testimony as have impressed our minds as of peculiar significance, and have led us irresistibly to the conclusions at which we have
How utterly changed did he become after that day, is conclusively established by the uncontradicted testimony of many witnesses. We shall only advert to a few of the most remarkable and striking incidents, indicating unmistakably the total transmutation, from that day, of his character and habits. The review is painful and would willingly be omitted. In the view we take of this case, it is quite controlling, and it cannot therefore be avoided. The facts narrated show the changed man, and the inferences to be drawn from them are conclusive. In March, 1850, as related by Dr. Taylor, this scene occurred at Mr. Parish’s house after he had administered the communion to Mr. and Mrs. Parish and their attendant • Mary Ann Greene. As Dr. Taylor was going away, Mrs. Parish took out of her pocket three goffl pieces of $5 each, and handed them to Mr. Parish to be given by him to Dr. Taylor. Then “ Mr. Parish evinced strong displeasure by his looks and contemptuous mode of expression, frowning, and saying ‘yah, yah, yah,’ shaking his head at Mrs. Parish, scolding in his way, and refusing to hand” Dr. Taylor the money. She smiled and said, “ give it to the doctor.” He threw the money back to her, it fell on the floor — she picked it up and gave it to the doctor, and he left.
The interview between Mr. Parish and Mr. Daniel Parish at the house in December, 1850, furnishes another striking
In this place it may be well to remark upon the interviews, and the only ones had by Mr. Daniel Parish with his brother after his attack. The first one was about the 20th of August, 1849, as near as it can be stated from the testimony; when, on calling at the house to inquire as to the condition of his brother, Quin, the waiter, let him in, having heard the doctor say that his brother was “ very low, he was afraid he would do no good.” Quin, thinking he would not live, told Mr. Daniel Parish, in disobedience of his instructions, “to go right up and see his brother now, that when hé would call again he would not see him alive.” Mr. Parish proceeded immediately to his brother’s sick-room, and, as he was about entering, he met Mrs. Parish, who objected to his going in, saying “ he was not in a condition to be seen.” He went in, notwithstanding, and this first interview of the brothers would seem to have been of the most friendly character on the part of both. A servant was sent into the room to report to Mrs. Parish what Mr. Daniel Parish was doing there, and he saw him (Daniel) “ having hold of his brother in the bed by his hand.” There is no evidence that Mr. Henry Parish
We resume the narration of acts and conduct of Mr. Henry Parish. At the interview at the house in the latter part of 1850, just referred to, Henry Parish manifestly thought that Mrs. Parish was treating his brother with rudeness and impropriety, if he had mind to comprehend what was transpiring ; at any rate, he saw something was going on offensive to him, and that-Mrs. Parish’s manner to Daniel was unfriendly and harsh. If he could understand what was said, he heard her order his brother to leave her house, and saw her follow him down stairs, as if intending herself to see that he promptly obeyed her commands. At this, Henry Parish became greatly excited, and the witness, his attendant at the time, says: “ Mr. Henry Parish got quite outrageous in my hands. Mr. Parish had his crutch; he raised it with the intention of hitting Mrs. Parish, who stood in the front hall; just as he raised his crutch, I swung him round from the right side, and got him into the dining-room.” It is not a little extraordinary that, if Henry Parish then entertained towards his brother Daniel the unfriendly and hostile sentiments now alleged and claimed, and if he heard and understood all that was transpiring, he should not have sought to inflict chastisement upon that brother, whom, on this hypothesis, he must have greatly disliked, if not hated, and -who had in his presence insulted his wife; rather than upon her, the advocate and avenger of his wrongs', and the object of contumely on his account.
Again we have a striking illustration of Mr. Parish’s condition, from the statement of Austin, the poulterer at Washington market. What transpired there is referred to in
On a cold winter’s night the following occurrence took place. The witness says Mr. Parish was sitting in the library with Mr. Delafield and Mrs. Parish. “He seemed to be very weary and unhappy in his mind, and I was sent for and took him by the arm, and went out into the front hall. He was determined apparently to go out, and I told Mrs. Parish: she came out into the hall with his hat, and put it on his head, and said, if he was going out Jhe had better have his hat on. He raised his left hand and threw his hat right off
And can this be the same gentleman óf whom Col. Dela
We confess ourselves wholly unable to assent to any such theory. The conviction on our mind is clear that these facts- and circumstances show unerringly, that the attack of July 19th obliterated the mental powers, tile moral perceptions,, the refined and gentle susceptibilities of Henry Parish; that after that period he ceased to be the mild, intelligent, and unruffled man he had been theretofore, and that thereafter he was not morally responsible for the unbecoming and ungentlemanly conduct he so frequently exhibited. He then ceased to be Henry Parish, and was no longer an accountable being. We find much less difficulty in reconciling our minds to this view of the case than to adopt the theory of the proponents, that Mr. Parish, up to the period of his death, pos
When the means of arriving at the knowledge whether Hr. Parish was understood or not are examined, it will be found that they were very imperfect, and very liable to misapprehension. It is to be observed, also, that all who speak on this subject applied no test to determine the accuracy of their impressions. They saw Hr. Parish mainly when in apparent good physical health, and visited him under the impression and with the preconceived idea that he understood what was said to him, and they naturally construed the signs and gestures made by him as indications of intelligence, and responsive to suggestions made by them. But the accustomed mode of conveying thought by speech was denied to Hr. Parish. Some of the witnesses think he made use of the words “ Yes” and “No,” and one or two other words; but the weight of the testimony greatly preponderates in favor of the position that, after his attack, he never uttered an intelligible word. This is the testimony of Hr. Kernochan, who saw him more frequently than any person other than the members of his family. Hr. John Ward, whose intercourse with him was very frequent, says distinctly that he never heard him utter a distinct and intelligible word after his attack. He was therefore denied the usual manner of communicating his thoughts and wishes. What remained were signs and gestures, and the expressions of his face, to com
With these imperfect and uncertain media for ascertaining the thoughts of Mr. Parish, it is doing no injustice to any one to assume that they have been mistaken in supposing that they correctly understood him. We more naturally and readily come to this result, because we find that all who had any intercourse with Mr. Parish, on many occasions, found great difficulty in understanding his wishes and thoughts, if they even understood them at all; and the instances are frequent and clearly established where he often made an affirmative and negative motion of his head immediately succeeding each other, to the same question, leaving the inquirer in perplexity which he really intended. The testimony is conclusive that Mrs. Parish herself frequently acknowledged that she could not understand him, and there is some testimony tending to show that, on some occasions at least, she thought he did not at all understand what was said to him, and that, in her opinion, the effort would be useless to make him understand.
As an illustration. In the interview with Austin at the Washington market, a man well acquainted with Mr. Parish, and who had dealt with him for years, he said to Mrs. Par
¡Numerous other witnesses who have testified in this case, on both sides, say that on many occasions Mr. Parish could not-be understood. Mr. Charles A. Davis says: “I have stopped my inquiries endeavoring to find out his meaning; Mrs. Parish failed to find it out.” Folsom, long Mr. Parish’s confidential clerk, says: “I failed to find out what he wanted.” Wingrove, one of his attendants, says: “ I never found out what he wanted, searching for his clothes, nor why he put his clothes and game to his mouth. ¡Neither myself nor Mrs. Parish could find out where he wanted to drive; neither what part of the newspaper he wanted read. That Mrs. Parish often, after making repeated efforts to understand him, gave it up.” Simmons, another of his attendants, says: “ I could not ascertain his wishes from his motions, sounds, or gestures.” James Clark, another attendant, says: “I and Mrs. Parish would spend an hour or two, and fail to get his meaning.” Dr. Delafield, his physician, gives a long description of his attempts and failures to understand Mr. Parish. ¡Rev. Dr. Taylor, when he proposed first to administer the communion to him, could not understand why he did not wish it done. Mr. Tileston, president of the Phoenix Bank, says that Mrs. Parish stated to him, on the occasion of the interview between him and Mr. Parish, in her presence, that “ she was entirely unable to convey or understand what Mr. Parish meant.” This was in December, 1853. He adds, that he “could not understand him in any way.” Dr. Wheaton, a medical man, and intimate friend of Mr. Parish, says he “ could not interpret at all his meaning, without aid from Mrs. Parish.” J Fisher, another of his attendants, says: “That in August, 1849, Mrs. Parish could not understand him, and Mr. Parish gave up in despair the effort to .make
It is thus seen that great difficulties and uncertainty, to say the least of it, attended any expression of the thoughts or ■wishes of Mr. Parish, and that a large number of those having business or intercourse with him, utterly failed to attach or obtain any meaning to his signs, sounds, motions, or gestures. The natural and obvious deductions to be made from all these facts and circumstances are, that Mi-. Parish had no ideas to communicate, or if he had any, that the means of doing so, with certainty and beyond all cavil or doubt, were denied to him. If some, with the aid of an interpreter, and always the same, indulged the charitable thought that they correctly apprehended his wishes, it is clear that others, equally intelligent, with adequate and equal opportunities of judging, and with the same aids, utterly failed to comprehend Mm.
The facts' testified to are of such a character, giving full and proper weight to all the evidence, regarding it in the most favorable light to the proponents, as to leave great doubt on the mind that Mr. Parish, after his attack, was any thing more than the creature of habit the reflex of the opin
This attempt to have Mr. Parish communicate by writing, having proved fruitless, resort was had to block-letters, a very simple and facile mode of communicating thought by those who are deprived of the natural use of doing so by speech. If he had any thoughts to communicate, he had thus at hand an easy, certain, and effective means of doing so with accuracy and beyond the peradventure of mistake. The slightest exertion only was required — no fatigue could ensue. This attempt, also, produced no results. Another effort was also made with the letters of the alphabet in another form, and it also was unsuccessful.
A further and different mode was suggested by some of his
And this omission greatly strengthens the'impression conveyed by the testimony, that he did not and could not read at all after his attack. It is true that he was seen to look at newspapers, accounts, ledgers, check-books, notes, &c., but that Ms mind took in and comprehended what his visual organs discerned, the evidence in this case will not warrant us in assuming. It is natural to suppose, that, if Mr. Parish could read, he would have desired himself to peruse these codicils, and they would have been placed before him for that purpose; and, on the assumption that he could', the inquiry presses upon us, Why were they not given to him for perusal ? If it had been established that he could read intelligently, and it had appeared that these codicils had been read over by him, it would have furnished much more satisfactory evidence than any we now have, that they expressed his wishes. If he could read, and had intellect to understand what his eyes beheld, why is it that there is an entire absence of evidence that he was ever seen reading, with apparent understanding, a letter? of his ever having been seen, on any one occasion during his long confinement, with a book in his hand, perusing it? Is it to be believed, that if Mr. Parish could read, and had a mind to comprehend what he read, that he would not,- during these whole seven years, when he
To what result does this review of the facts and circumstances in this case, adverted to and commented on, lead -the mind ? On a careful consideration of them all, with a most anxious desire to arrive at a just and correct conclusion, we are dearly of the opinion that the attach of Mr. Parish on the 12th of July, 1849, extinguished his intellectual powers, so obliterated and blotted out his mentad faculties, that after that period he was not a man of sound mi/nd and memory within the meaning and language of the statutes, and was therefore incompetent to mahe a will, and that the codicils of September, 1853, and of June, 1854, were not his will, and formed no part thereof.
We have endeavored to give just and due weight to the
We are impressed with the soundness of the rules of law, before adverted to, that it is much less material that those who seek to impeach a testamentary instrument, should not be able to explain certain things in their case, should be forced to admit that their argument is not in every part con-, sistent with all the facts, than that they who seek to establish the will, should give no rational, consistent, or intelligible solution of those difficulties which incumber their suppositions, and obstruct the path towards the conclusion that they would have us arrive at; that it is not the duty of the court to strain after probate, and especially to seek to establish a posterior will, made in conceded enfeebled health, unsustained by previous declarations of intention, over a prior will made in health, and with care and deliberation, when the provisions of the posterior will are in direct hostility and conflict with those of the prior one; that heirs and distributees may rest securely upon the statutes of descent and distributions, and that their rights are not to be taken from them, unless by an instrument executed in conformity with the formalities
If, however, these views are stronger than the facts will warrant, there is another proposition which is undeniable, and that is, — if, on due consideration of all the testimony and the arguments, the mind of the court is in equilibrio, then the proposed codicils must be pronounced against. In the present case, as already observed, there is a will free from all question and all controversy. It was .made by the testator after peculiar deliberation, and certainly disposes of his property not unnaturally or inequitably. ISTo change in the circumstances of the testator’s family having occurred, and a condition of bodily and mental weakness having supervened, certainly well calculated to create grave doubts of the
The argument has been much pressed upon us, that the concentration of the great mass of the testator’s estate in Mrs. Parish, is supported by several collateral circumstances, and that therefore the court should be less exacting in the quantum of proof to sustain such bequests, than it would demand when they were not thus supported. It is said that it might well be supposed that the testator would desire to keep up and have maintained his family establishment the same after his death as before. The answer to that argument is, that he had made most abundant provision for this in his will of 1842, by leaving to Mrs. Parish an income of about $23,000 annúally, while the current expenses of both in his lifetime had never exceeded $10,000. He had, therefore, provided for her singly more than double the amount required annually for both.'
It is also urged that the alienation, of his feelings towards his brother Daniel afforded a sufficient reason for revoking his áppointment as executor and the legacy to him of $10,000, and the revocation of the residuary clause in the will of 1842 in favor of his brothers Daniel and James; and that this alienation is confirmed by the efforts made by him on two several and distinct occasions to annul the legacies to his unof
It is also claimed that it is manifest, from the framework of the original will, that the testator did not intend that his brothers should have any considerable portion of his estate. This argument has in part already been answered, and, in addition, it may be observed that the peculiar and careful language of the will is such, that it conveyed to the residuary devisees all the property, real and personal, of the testator which he might own or be possessed of at the time of his death, not specifically given or disposed of by the will. He had disposed of $331,000 to his wife. This was absolutely hers, or subject to her disposal. He had specifically given property amounting to $60,000 to three young gentleman, kinsmen and friends, and legacies in the aggregate to $290,000. On his return from Europe in 1844, having ascertained that two of the legatees, whose legacies amounted to $20,000, children of his- brother James, had died, he called on Mr. Havens, the counsel who prepared his will, to ascertain, among other things, what effect their deaths would have upon its provisions. It is not to be forgotten that Mr. Parish always kept a duplicate of his will with him, and it is not to be doubted that it was often referred to, and its contents the subject of his frequent meditations. Mr. Havens correctly informed him that the death of any of the legatees in his lifetime, under age or" without issue or an appointment,
It is also urged that the codicils made by Mr. Parish after his attack were made to evince to Mrs. Parish his increased affection for her, and his grateful appreciation of her kind and assiduous attentions to him during his protracted illness. This argument has, we think, no force whatever, so far as it presents an inducement for the execution of the' first codicil. That was prepared and signed within a few days after returning consciousness from the blow of July 19; and in regard to the other two codicils, the testimony does not contain any indications of an increase of affection on the part of Mr. Parish for his wife after his attack. On the contrary, if he was a conscious and' responsible man, the inference would be that the affections of the husband had been much weakened, that he evinced no tender or growing regard for her, and had no grateful appreciation of her watchfulness- and care of him. On the theory of his intelligence and testamentary capacity', his treatment of her was strange and unaccountable, and
Much stress is also laid upon the circumstances testified to by Mr. Ward in reference to the purchase of notes by Mr. and Mrs. Parish, and one inference is drawn, that in purchasing the notes, Mr. Parish relied upon his own knowledge of the mercantile standing of the makers, and that the same was made upon his judgment solely. Mr. Ward’s testimony will hardly bear that construction, and a moment’s reflection will make it obvious that if Mr. Parish purchased notes upon the information he possessed of the mercantile standing of the makers, he must have done it very blindly. He had been excluded for years from intercourse with the mercantile world, and would necessarily know, if he knew any thing, but little of the changes and losses of business houses. We have toe many instances of firms, having wealth and unbounded credit one week, plunged into hopeless insolvency the next, to place much reliance on the judgment formed on knowledge obtained in, and previous to, 1849, as to the responsibility of firms in 1854 and 1855. It was more simple and easy to determino the value of the securities of a corporation whose resources and property were matters of public notoriety, than the means of private individuals. Here, real and apparent are far from being the same. A careful examination of Mr. Ward’s testimony will leave the impression that Mr. Parish never, except perhaps on two occasions, and then by nods of assent, made any answer to any suggestions from Mr. Ward until Mrs. Parish had spoken. It has been shown that very little reliance could be placed on Mr. Parish’s motions of assent or dissent. There is nothing in the case to show that Mrs. Parish would have permitted important purchases to be made predicated upon them, unless she had been satisfied of their wisdom and propriety. In fact, it is incontrovertible that
We have not thought it necessary to “discuss the learned and able medical opinions furnished on both sides to the court for its perusal and consideration. We do not understand that- the parties have agreed that they should be regarded as testimony in the case with the same effect as though the writers had been examined as witnesses. They are valuable disquisitions upon the subject treated, and evince the highest grade of professional talent and knowledge. While they have been instructive to the court, they cannot strictly bq regarded as evidence in chief in the case. Opinions, however respectable, and coming even from the most intelligent minds, are not the sources from which the judicial mind seeks enlightenment. The law, for wise purposes, has precluded it from relying on facts not communicated under the solemnity of an oath, and it is the duty of every tribunal called upon to pass on a question of fact, to confine its investigations to such facts as are verified in a legal manner. If it then fails in arriving at the truth, it will have done its whole duty, and the result must he attributed to the imperfections of our judicial system, and the inadequate tests which the mind is capable of applying to discover it. We have not, therefore, considered as evidence the mere opinions of these medical géntlemen, and we have accordingly examined their disquisitions in the same manner, and for the same object, that we would examine any medical treatises on the same subject. Their value consists mainly in the arguments and reasons they contain, as applicable to the facts developed in the present case, and we have so regarded them. They have been to us sources of great instruction, and are valuable contributions to the study of medical jurisprudence, and exhaust the medico-legal aspects of the intricate diseases of the brain arising from apoplexy, paralysis, and epilepsy.
We are of the opinion that the judgments in each of the two above-entitled causes should be affirmed, without costs to either party in the first, but with costs in the second cause.
Denio, Wright, Allen, and Smith, Justices, concurred.
concurred in the conclusions, but not in the opinion of the majority of the court. He held that Mr. Parish was competent within the rule laid down in the case of
Col. Henbt A. LrmresTos’s Opinion. In the Court for the Correction of Errors. In the ease of the will of Alice IAspenard. — The frequent applications to break the validity of wills, and endeavors to set aside the intention and wish of testators, have almost become a matter of business, and promise to continue such while the process appears so easy to accomplish the desired end. And at the instance of any or all the remote relatives of a deceased testator, leaving an estate, if a glimmering of hope to obtain a portion of the property takes possession of the avaricious heart, every testament must be brought to the scaffold, and the fatal axe must be applied to strike it out of existence. But it has now almost become time to look around and begin to think, that one of these days some distant descendant of some old family will rush to this tribunal, and with powerful, overwhelming counsel at his
In page 133, the question is asked Mrs. Sarah A. Stewart, “What did she say of the other persons you have named V She answered, “ Alice would often say she did not think they cared any thing for her, whether she were dead or alive, and that they should not have a cent of her money; my brother should have it all, that he had been a good friend to her.” In page 75, the question is asked the Rev. Duncan Dunbar, “Do you recollect seeing Alice upon your return from Europe? if so, relate the circumstances.” Answer. " I returned from Europe about the 9th or 10th of November last. A few days afterwards I called at Mr. Stewart’s to inquire for the family. I was shown into the parlor where Miss Alice was sitting alone. As soon as I spoke she recognized my voice. She rose up and cordially embraced me with a shake of my hand, and congratulated me on my return. She asked particularly if my health was benefited by the voyage, I having went to Europe on account of my health. She also asked how Mrs. Dunbar stood the sea, and if she was well since her return. She expressed regret that the ladies of the family had gone out to ride, and that they would be much dis-' appointed at not seeing me.” Again the question is asked the same reverend gentleman, “ Did her whole manner exhibit strong feelings of friendship ?” Answer. “ Tes, so much so that I informed my family on my return home
In page 134, Mrs. Charles Stewart is asked: “From your knowledge and acquaintance of your aunt, have you any doubt of her capacity to make a will, and have you ever heard her converse upon that subject ?” She answers : “ I think she was perfectly competent; the conversation to which Mr. Webb alluded to in his examination, passed in my presence, I mean the Rosevelt property; after he left, she spoke of it to me, his having asked her to give her share to him — said she, he shall not have it, that her brother, meaning Mr. Stewart, should have whatever she had.” In page 335, Mrs. Murden is asked: “Did you make any remarks respecting the visits of the two Miss Lispenards?” To which Mrs. Murden answers: “She did not; but I made a remark to her, and told her that her nieces had called to see her; she said, they do not care any thing about me, they only hope when I die to get some of my property; but that none of them should have any thing but her brother and sister Stewart. I have often heard her make the same remark, and say they had been so kind to her.” In page 146, Mrs. Van Dalson is questioned: “ Did she appear to take any interest in your own family f’ Her answer is, after stating several circumstances: “ I called at the house one day; Alice said, ‘You have got another daughter, Mrs. Van Dalson.’ I said,‘Yes, Miss Alice, I intend to name her after you.’ She said, ‘You need not name your brat after me, expecting to get something, for I shall not give her any thing.’ ” Thus, in my opinion, by this answer, plainly intimating that she was conscious of possessing property, and intended to give it to whom she pleased.
In page 19, the Rev. Charles S. Stewart, the question is asked him: “ From your knowledge and observation of Alice, have you any doubt of her capacity to make a will, and disposing of such property as she possessed?” To which he answers: “No; I have none. I believe she possessed the ordinary characteristics of mind, and was habituated in their right exercise. The belief has been induced by the constant opportunities I had of knowing that she was correct in her observations of all the ordinary circumstances and events passing around her, and the inferences she drew from them appeared to be correct. She had a good memory, and in other respects she showed she had the common traits of mind; and I believe that-her will was made under the influence of the same principles and affections that give rise to the wills of other persons; that it was founded in gratitude and affection to the persons named in it; that she has more than once to myself expressed the warmest affections for Mr. Stewart, and his daughter, Mrs. Stewart, formerly Mrs.
From all I am able to gather from this case, and I have attentively listened to the argument of counsel, I am led to the conclusion and belief, that Alice Lispenard was a person of very moderate intellect, but not an idiot; and that she had the power to know and appreciate her friends. Thus we see, that when, as it were, abandoned by her nearest blood-relations, and humbly boarding under the roof of poverty, with strangers, she was indeed a poor, forlorn being, and the demon of intemperance had a powerful dominion over her, and the little faint rushlight of understanding was almost obliterated, and the descendant of the high-minded Lispenard became a common carrier of wood, and a drawer of water to those very persons who had been the servants at the old lordly mansion on the hill. But when she was removed by the kindness and friendship of her brother-in-law, Mr. Stewart, and raised to the dignity of an inmate in his family, and seated at his table, enjoying the benevolent smile of a good Samaritan, you hear no more of her choking at table, with coarse beef; but by degrees she becomes enabled to-attend to the little avocations of the family, and feels that there was some blood still circulating in her veins, that tells her she was not that abject outcast they would fain make people believe. By degrees she becomes more temperate, until finally she is entirely so; then the clouded faculties, few and small, however, I admit, but still she belonged to the human family; and I never can consent to place an extinguisher on the faint, glimmering light of her •understanding, and put it out forever, but will allow that little spark to shed an humble lustre upon the last act of her life,, which was to make a just will, and give what she had to those she loved, and those who cherished her.
I am, therefore, of opinion that the proceedings in this case be reversed!
Dissenting Opinion
(dissenting). — This case, with its voluminous proofs, its extended medical arguments, and elaborate briefs, has swollen to such a size, that it is quite impossible for the court, in an opinion of reasonable length, to take a complete and comprehensive view of all the various aspects in which it is presented. I shall attempt no more than barely to group a few of its prominent features, in as brief a space as possible, selecting such points, as, while they may not appear to others the most striking and important, seem, nevertheless, to me, to be not only pertinent, but entirely decisive of the case.
Were we at liberty to entertain, at the outset, a wish as to the conclusion to which we are ultimately to arrive, it would undoubtedly be, that although we might find that the codicils were invalid, we might also find that the will itself was revoked, and that Henry Parish died intestate. This result, while it would give to the widow a very bountiful provision during her life, and a large estate to be transmitted to her relatives upon her death, would, at the same time, place the brothers and sisters of Mr. Parish upon a footing of equality as to the residue. But notwithstanding the very ingenious argument of the counsel for the sisters of Mr. Parish, and a natural inclination to give to that argument its fullest force, I have been unable to see how it can, with propriety, be held that the will was revoked. Admitting the soundness of the argument, that testamentary capacity may be divided. into
The argument applies solely to express, and not at all to implied, revocations. The only express revocations here, are those contained in the second and third codicils, of the legacy to Daniel, and of the residuary clause in favor of Daniel and James Parish, blow, conceding that in a case where a testator, apparently intelligent, but whose powers of communicating his ideas were limited, had, in proper form, revoked a previous will, and then by a subsequent and distinct act had made another will, it would be possible to hold the revocation valid, on the ground that the intention to revoke was clear, and the second will invalid, on the ground that it did not sufficiently appear that its provisions were in accordance with the real wishes of the testator; still, the doctrine cannot, I apprehend, apply to a case where the revocation and the new provisions are contained in the same instrument, and are part and parcel of the same transaction; for the very plain reason, that it would be impossible, in such a case, to say that the testator would have wished to revoke the former will, except in connection with the new disposition made of the estate. The codicils cannot, therefore, be held valid as to the revocations which they contain, and void for want of testamentary capacity as to the residue.
The revocations, whether total or partial, in this case, then, if any, must be implied. Without examining the question whether the circumstances relied upon by the counsel would amount to an implied revocation at the common law, it seems to me that our statute (2 Rev. Stat., 64, § 43, et say.), presents an insurmountable obstacle to the establishment of such a revocation here. The notes of the revisers upon those sections, show conclusively that it was their intention to preclude
The counsel suggests a long list of cases in which he supposes there must, of necessity, be a revocation, notwithstanding the statute. But these are mostly cases where the devise or legacy has become inoperative by reason of the destruction or alienation of the subject-matter of the devise, &e., prior to the testator’s death. Circumstances of this sort do not necessarily work a revocation of the will, but merely operate to prevent the beneficiary from enjoying its fruits. The will may, nevertheless, be proved, leaving its effect to be determined when the devisee or legatee prefers his claim. As to the testator’s expressed intention, or wish, to revoke or change his will, upon which the counsel seems to rely, nothing can be clearer than that such an intention, to be of any avail, must be carried into effect in the manner prescribed by the. statute. As a mere auxiliary to circumstances tending to effectuate an implied revocation, it is useless, as there can be no such revocation except in the cases for which the statute provides. It is impossible, therefore, to sustain the appeal of the two sisters of Mr. Parish.
The remaining questions relate to the validity of the second
It is said, that this rule having been established in this State by repeated decisions, it is too late now to call it in question. But no amount of authority can establish a rule which is self-contradictory. If it be, as I deem it to be, undeniable, that idiots, or if not all, at least some persons belonging properly to that class, have more or less understanding, then the rule in question both affirms and denies, that such persons have capacity to make wills. There is, and can be, no doubt that courts, in passing upon questions of testamentary capacity, will and must distinguish between different grades of intelligence, and that, in cases like the present, the inquiry is, not whether the testator possessed some intelligence, and some mind, but whether he possessed that degree of intelligence which would qualify him to dispose of his estate by will. It by no means follows, however, that when the inquiry relates to idiocy or mental imbecility, and there is no allegation of insanity, that it is necessary to bring the capacity of the testator up to the standard of what may be called, in any just or even technical sense, “ a sound mind.” This phrase has two significations. In common parlance, it means a mind of more than ordinary strength, discreet and well balanced. In law, it means a mind not affected with insanity in any form. In neither of these senses can it by possibility be made a test of mere mental imbecility. It is said to have a third signification, and to be used as synonymous with compos mentis, and to express the idea of legal competency. It has no doubt been sometimes vaguely used in this sense; but such use is obviously inaccurate, and tends strongly to mislead. Take the case of one but just elevated above the grade of idiocy, who has barely sense enough to escape a commission, and is it not absurd to speak of him as a person of sound mind ?
If we would have clear and definite ideas on this subject, we must not abandon all precision in the use of phraseology. Won compos mentis is a general term, embracing all who are deemed legally incompetent to transact business. It includes three separate classes, viz.: idiots, persons of unsound mind, and persons of unsound memory. Each of these classes is entirely distinct from both the others. The first embraces not only congenital idiots, or idiots from birth, but also such as have subsequently become mentally imbecile from sickness or other causes. The second class comprises all who suffer from aberration of mind, whether they are lunatics, monomaniacs, or generally deranged. The third is confined to a peculiar class, composed mostly of persons whose memories are impaired by age. To mingle these separate classes, each of which has its distinct features, as is frequently done, tends inevitably to confusion. We have already seen that idiots cannot be classed with persons of unsound mind, in the
It may be objected to the classification here given, that it does not comport with the language of our statutes on the subject. It is true that the statute concerning wills of real estate, in its enumeration of persons incapable of making a valid devise, specifies only idiots and persons of unsound mind, and omits to name, specifically, 'persons of unsound memory / and that the statute concerning .wills of personal property provides that every person of “ sound mind and memory, and no other” may make a valid bequest. These statutes do, no doubt, imply that, in some enlarged and comprehensive sense, the term “ unsound mind” may be held to embrace both idiots and persons of impaired memory; but when taken together they also recognize the very distinctions for which I contend. The first distinguishes between idiots and persons of unsound mind; and the second treats an unsound memory as something distinct from general mental unsoundness. That these distinctions are real, is too plain to be denied; and it proves nothing against their existence, that
It is plain, from what has been said, that persons deemed in law non compos mentis are properly divisible into classes, and that such a division is indispensable to a clear understanding of the subject. It'is equally plain that the competency of persons belonging to one of these classes cannot be determined by rules specially applicable to another class. The question in this case relates to the idiocy or mental imbecility of the testator; and in determining this question, it is unnecessary to inquire whether he was possessed of a sound mind, or a sound memory, but only whether he retained that moderate degree of reason and understanding which is required to enable one to dispose of his property by will. It is not enough that he should be found to have possessed some degree of intelligence and mind. He must have had sufficient mind to comprehend the nature and effect of the act he was performing, the relation he held to the various individuals who might naturally be expected to become the objects of his bounty, and to be capable of making a rational selection among them. If he had this amount of intelligence, then the codicils which were rejected by the surrogate are valid, and should have been admitted to probate, unless it appears that they were obtained by the fraud or undue influence of Mrs. Parish.
The positions taken by the counsel for James and Daniel Parish, are: 1. That the testator, Henry Parish, at the time of the execution of the codicils in question, and for the last
I have no intention of entering into any analysis'of the mass of evidence which has been adduced, bearing upon these questions, but will barely advert to a few items which appear to me of a striking character. There is no doubt that the opinions of intelligent witnesses, although not experts, are to be received upon such an issue. It would be utterly impossible to describe in words the air and manner, the tones of voice, and expression of face, from which, to a great degree, the conclusion must be drawn. Personal observation is almost indispensable to accuracy of judgment in such a case, and hence the reception of opinion in evidence becomes a necessity. Among the witnesses called by Mrs. Parish to support the codicils, are her brothers, Edward, Henry, and Richard Detail eld; Mr. Lord, who drew the codicils; Mr. Taylor, a minister, and rector of Grace Church; Mr. Tileston, president of the Phoenix Bank; and Gov. Bradish, president of the Bible Society. All these are conceded, by the counsel, to be men of the highest character and intelligence. Of the three brothers of Mrs. Parish, Edward was the physician of Mr. Parish, and in constant attendance upon him during the whole six years of his illness. Henry, a merchant, lived in the house with him during this time, and was with him a great part of nearly every day. Richard, a major in the United States army, and superintendent of the Military Academy at West Point, had frequent opportunities of intercourse with him during the same period. Mr. Taylor was also a frequent visitor of Mr. Parish, administering the sacrament to him upon many occasions, and had other religious intercourse, and various financial transactions with him. Mr. Lord drew the codicils, was many times in consultation with the testator in regard to them, and witnessed their exe
The counsel for the respondents, James and Daniel Parish, evidently felt the force of this aspect of the case, and we will see how he meets it. In speaking of Mrs. Parish, and the frauds and contrivances by which, as he insists, she obtained the execution of the codicils, he says: “We shall find her 6 watching her husband’s person day and night, never permitting any intercourse between him and others, which might reveal the true condition of his mind. We shall find her interpreting, according to her own purposes, his signs and gestures to selected persons, chosen to have this nominal intercourse with him. We shall find her preparing such per
This is a most forcible and eloquent' summary of the positions which it is incumbent upon the respondent to maintain, in order to invalidate these codicils for the want of testamentary capacity. The counsel is clearly right in his conception of the burdens which the case imposes upon him. He sees that it is quite impossible that all these intelligent witnesses should have failed to detect idiocy if it existed, and has taken his position accordingly. These positions are maintained by a vigor of logic, a force of rhetoric, and a perfection of art, which I cannot refrain from saying, has, in my judgment, rarely been surpassed. But is it possible to assent to them ? They attribute to Mrs. Parish not merely the wickedness, but the power, of a demon. Women have no doubt existed who were sufficiently vile; but I certainly have never known, and think I have never heard of one who could have accomplished what is here supposed; who could have carried on a game of fraud and deception for six years without a misstep ; who could have practised her wiles with such success as utterly to subvert the moral sense of a whole family, consisting of such men as her brothers are admitted
The witnesses I have named are by no means all who had intercourse with Mr. Parish and believed in his intelligence. Those named were selected, because they were specially referred to in the paragraph quoted from the counsel’s argument. There were many others, belonging to the same intelligent class: among them I may mention Charles A. Davis and Moses H. Grinnell, both eminent merchants; Leroy M. Wiley, a Southern planter, and former partner of Mr. Parish, and James Watson Webb, editor of the New Eorh Gowrier and Enqui/rer / all of whom testified to their entire confidence in the intelligence of Mr. Parish. Mr. Wiley, who had a great deal of intercourse with him during his illness, upon matters of business, when asked as to the condition of his mind, said: “ As far as I could judge, his mind appeared to be well regulated as to business he was familiar with, or had been familiar with, when in good health.” Mr. Grinnell, upon being inquired of whether, in his intercourse with Mr. Parish, after his attack, he supposed the latter understood what was said to him, replied, “ I never had any doubt but what he understood distinctly.”
The witnesses called on the part of the respondents are far from expressing the same confident opinion. Mr. Kernochan, the leading witness and the former partner and intimate friend of the testator, did not think the latter “had much mind.” In his efforts to communicate with Mr. Parish he was never “perfectly satisfied” that the latter understood him. Mr. Folsom, the clerk of Mr. Parish, before and after his sickness, and one of the principal witnesses for the respondents, in answer to an inquiry as to the mental condition of Mr. Parish during his sickness, said: “I think, through
But opinions are of no importance, if they are contradicted by facts. It is necessary, therefore, in attempting to dispose of this case, to look into the history of the appearance and conduct of the testator during his illness, which is given by the testimony with the greatest minuteness of detail. This I have done, bnt shall not attempt to reproduce it here. Some of the circumstances which are clearly established, and about which there is no dispute, must, no doubt, be regarded as somewhat extraordinary, upon the supposition that the testator possessed any considerable mental capacity. Those which it appears to me most difficult to reconcile with this hypothesis are: 1. That, although his embarrassment in endeavoring to make his thoughts and wishes known, his power of speech being limited to uttering the words, “yes” and' “no,” must have been a constant source of irritation and annoyance, he either could not, or would not, learn to write with his left hand, of which, for other purposes, he still had the use; and 2. That he would not, or did not, communicate his ideas by the use of block letters. Various hypotheses might be suggested for the purpose of explaining those circumstances, some of which it would seem to me quite-possible to adopt.
But whatever may be the difficulty of accounting for these facts, it can hardly be sufficient to counterbalance the great weight of the evidence which goes to show intelligence. In addition to the force of the opinions referred to, and of the suggestions already made as to the absolute impossibility of
I will mention here one other item of evidence, which appears to me still more significant. From the constantly accruing income of Mr. Parish’s estate during his illness, there were large sums to be invested; many of these investments were made through the agency of Mr. John Ward, a prominent broker of Wall-street, who testifies that his business interviews with Mr. and Mrs. Parish were had in Wall-
How the great, and, — if Mr. Ward is not mistaken in his recollection, — controlling importance of this testimony will be readily seen. The stocks and bonds offered, were mostly those of companies recently organized, the credit and responsibility of which Mr. Parish, from his having been somewhat secluded from the business arena, for a considerable time, could not be expected to have much knowledge; concerning these it was necessary to make inquiries. But when the note of a mercantile firm in the city, with the character
•I have referred to these items in the testimony of Mr. Davis and Mr. Ward as specimens, merely, of the evidence in the case. Numerous other circumstances are detailed by the witnesses, having the same tendency to support theopinions of those who have expressed their belief in the intelligence and capacity of Mr. Parish. The facts of this character having an opposite tendency, are few and comparatively insignificant. The evidence of incapacity rests mainly upon his failure to learn to write or to communicate by the use of block letters, upon his great physical weakness in some respects, and upon the somewhat qualified opinions of the witnesses introduced by the contestants. The counsel, for the purpose of adding to the force of the evidence, have introduced, by way of addenda to their briefs, the written opinions of several medical gentlemen of great eminence. Although these opinions are not. under oath, yet, considering
To estimate rightly the force of these opinions, it is necessary to divide them into two parts; that is, to separate- the part which is purely scientific from the residue. To ascertain the physical condition of a person in any respect, from all the visible indications of that condition, is thé appropriate duty of the physician: to gather together and combine all the external symptoms bearing upon the state of the brain, or any other organ, and to infer from those symptoms its actual condition, is of course within their province. So, also, from the ascertained physical condition of an organ, to infer its functional powers, is obviously within the range of medical ■ science. When a physician, therefore, from personal observation, or an authentic description of the symptoms of a case, has arrived at the same conclusion, that there is a lesion or deterioration of the substance of the brain, his opinion as to the necessary effect of this injury upon the intellectual powers, is received as evidence. But it is obvious, that, to make this opinion of any special value as a scientific opinion, upon a question of mental capacity, the conclusion as to the injury to the brain, must be drawn from indications other than such as are purely intellectual.
If a medical witness comes to the conclusion from the mental manifestations of an individual that his mind is disordered, that he is insane or imbecile, and from that infers that his' brain is diseased, and then tells us that this disease of the brain must necessarily destroy the intellectual powers, we have gained nothing whatever from medical science. We have simply reasoned in a circle; we had arrived at the end of the inquiry as to the mental capacity before touching upon the connection between the mind and the brain, which connection alone brings the question within the scope of that science. Physicians are not necessarily metaphysicians; their
Mow, although it may be regarded as clear, in this case, that the left hemisphere of the brain was seriously diseased, yet how far the right hemisphere was implicated, is, under the evidence, to say the least, doubtful. It certainly cannot be considered as incontrovertibly established, that the brain, to use the language of Dr. Watson, was “ extensively diseased on both sides.” But even if it was, the only conclusion drawn from it by Dr. Watson himself, is, that the impairment of mind would be such as to be recognizable by a medical observer. This clearly is not enough to render a man incapable of making a will. A man’s mind may be perceptibly weakened, and he still possess that degree of intelligence which the law requires in a testator. In any view, therefore, wMch can be taken of that portion of the medical opinions which assumes to deduce the state of the mind from the condition of the brain, it cannot be considered as in any manner decisive of the question at issue.
There is another portion of the opinion of Dr. Watson, which is of an entirely different character. He recites the testimony of the various witnesses, and comments at length upon it, with a view to its bearing, not upon the physical
Dr. Watson, in reference to this portion of the testimony, uses, this language: “I do not know that I ever witnessed an. instance, where the dementia supervened late in life, in which the patient’s faculties were so completely overwhelmed by the disease of the brain, that he could not, while yet conscious, and enjoying his sense of sight and hearing, respond by look, or by the play of features, to the countenance, if not to the words, of those who were addressing. How, it is this reflection of ourselves in the faces of others, with whom we come in contact, that is so apt to mislead us in our intercourse with the lunatic, the idiot, and the imbecile.” This can hardly be considered a satisfactory explanation of this vital point in the evidence. It supposes that the intelligent witness here named, and many others of the same class, with every opportunity for observing, were unable to discriminate
I deem it unnecessary to determine the question of the burden of proof; that is, whether a testator of the requisite age is to be presumed to be compos mentis until the contrary appears, or whether it is incumbent upon the proponent of the will, to give evidence in the first instance on this subject, whenever the fact is contested, because, in my view of the case, the evidence greatly preponderates in favor of the position that Mr. Parish at the time of the execution of the codicils, instead of being an utter imbecile, was possessed of considerable capacity and judgment; and more than the law requires to enable a testator to make a valid will. I do not suppose, however, that' he retained all his original vigor of intellect; and the question remains, whether advantage was taken of his mental and physical weakness to obtain by fraud, coercion, or the exercise of an improper influence, a will which he would not have made, if left to the spontaneous suggestions of his own mind.
This question, although not as clear in point of fact, as that already considered, for the reason that the capacity of the testator is proved by affirmative evidence, while a conclusion that there was no fraud, would depend, mostly, upon the absence of evidence, is nevertheless, equally clear in law. Fraud and undue influence must be proved. They may no doubt be inferred from circumstances, and the nature of the will may he taken into consideration in determining the point. But I see nothing in the fact that the testator, by the codicils in question, gave the accumulations of his estate to his wife, rather than to his brothers, from which it would be safe to infer fraud. Neither she nor they stood in need of it. She was very munificently provided .for by the original will
Mrs. Parish’s assiduous and constant attendance upon her husband, cannot b.e permitted to weigh against her. If it could, it would never, in such cases, be safe to act in accordance with the promptings of affection, and a high sense of duty.
There is considerable direct evidence in the case to show that Mr. Parish was not under his wife’s control. I will mention only what occurred upon the execution of the second codicil, in relation to the charitable gifts. It having been ascertained, or at least assumed, that Mr. Parish was anxious to give about the sum of fifty thousand dollars to charitable objects, the question arose as to what particular' charities should be made the recipients of his bounty. Mrs. Parish’s brother Edward was at the head of, and deeply interested in the prosperity of, the hT. T. Eye and Ear Infirmary, and she proposed that the whole sum should be given to that institution ; but Mr. Parish at once refused, and persisted in this refusal to the last; finally consenting, after selecting several other objects, to give the sum of twenty thousand dollars, instead of fifty, to the Eye and Ear Infirmary. This, unless Mr. Lord was practised upon to a degree that, in respect to ¿t man of his intelligence, is almost inconceivable, affords very strong proof that Mr. Parish, in making those codicils, ex
Sutherland, J., concurred with Selden, Ch. J.
For affirmance of the judgment of the surrogate and Supreme Court, holding the codicils to be void, Denio, Davies, Wright, Allen, Smith, and Gould, Justices — 6.
For reversal, Selden aud Sutherland, Justices — 2.
Erom these statements, it might possibly be inferred that but four judges, in all, concurred in disapproving that case. The fact is otherwise, as may be seen by a careful perusal of the opinions.
The opinion of Mr. Justice Davies unqualifiedly condemns Stewarrt v. Lispenard. It is expressly stated by the reporter, at page 66, that Judges Weight, Alleh, and Smith, concurred in the opinion rendered by Judge Davies. Next, the opinion of Selden, Ch. J., at pages 100 to 102, declares his disapproval of Stewarrt v. Lispenard, in the most emphatic terms. He pronounces it legally impossible to sustain the point in that case. “No amount of authority,” he says, at page 101, “ can establish a rule which is self-contradictory.” In this opinion, Judge Suthebland concurred; page 121. It is true that Judge Gould did not agree to overrule Stewan't v. Lispenan'd; and the reporter also states that Judge Dbhio did not. But it distinctly appears that six of the eight judges did unite in overruling it.
Again. Mr. Justice Gould is stated to have read a “dissenting” opinion. It is obvious, however, that the result he attained was a concurrence in affirming the judgment. The opinion of Mr. Justice Davies was against the codicils, on the ground of total incapacity. In this, four other judges concurred, making it the judgment of the court. Mr. Justice Gould considered that, according to the rule laid down in Stewarrt v. Lispenarrd, the decedent had testamentary capacity; but he condemned both codicils, on the ground that they had been obtained by undue influence. He concurred in the judgment, and did not dissent from it.
The reporter’s foot-note, oh page 121, at the end of the case, gives a history of resignation, illness, and temporary absences of various judges during the year in. which this case was decided (1862). These are characterized as an “ unfortunate concurrence of circumstances.” Every one of these circumstances occurred, however, subsequently to the final decision of the Parish Will Case. It may reasonably be conjectured, therefore, that none of them had any influence upon that decision. All the judges were present on each argument of this cause, except Judge Selden, who was absent during the first argument, and who gave a dissenting opinion.
The report, at page 9, announces that the case was decided at June Term, 1862. This is a mistake. It was decided at the prior March Term, having been argued the last time in the January Term. The remittitur was sent
In the preparation of this case for the present volume, it has been deemed advisable to give the points of counsel, on which the case was argued in the Court of Appeals. — Reporter.