46 Barb. 230 | N.Y. Sup. Ct. | 1865
This case is presented upon an appeal from the sentence and decree of the surrogate of Ulster county, refusing to admit to probate an instrument propounded by the appellant as the last will and testament of Peter Ban, deceased. The parties are all children of .the deceased. The testator died on the 17th day of December, 1863, being at that time about eighty-two years of age. The wife of the deceased died on the 5th day of March, 1859,.
The admission of the will to probate was resisted by the respondents upon the ground that the testator had not sufficient mind and understanding to qualify him to make a legal disposition of his property; and also because the will was procured by the undue influence exercised by the proponent Abraham Ban over the testator,
The principal question litigated between the ^parties was the question of capacity, and to that inquiry the testimony was mainly directed. And, as is not unusuál in such cases, it involved the history; actions and conduct of the deceased for a long time; and for many years before his death.
Before entering upon an examination of the facts hearing upon the question to be considered, it may be well to advert to the rule of law which should govern and control in determining the capacity of a testator.-
The case of Delafield v. Parish, (25 N. Y. Rep. 9,) is the last reported case where the rule of law applicable to cases like the present one has been fully discussed. Although some difference of opinion exists as to the effect of that case
Having referred to the principle of law which should control the determination of a question of the character of the one now presented, it may be well to advert to the leading features of the evidence produced before the surrogate which have a bearing upon the subject.
. There was considerable testimony adduced in opposition to the will, which tended to show not only general unsoundness of mind, but that for sevefál years prior to his death, the deceased manifested conduct Which indicated that he was not, in all respects, in the full possession of his mental faculties.
I do not consider it' essential to discuss at length the
The evidence before the surrogate certainly shows a strange and remarkable condition of the mind, which if it did not entirely dethrone the reasoh and understanding of the testator to such an extent as to render him utterly incompetent to make a valid will, at least seriously affected the question of his general soundness and' capacity.
It must not, however, be overlooked, in considering the question as to the sanity of the deceased, that on the part of the proponent several witnesses, although less numerous than those adduced on the other side, testify to the testator’s capacity until within eleven months prior to his decease, and to business transactions with him, which embraced the sale of personal property, the loaning of money and other matters connected, with the management of his own affairs, in which he appeared to comprehend the character of the business in which he was engaged.
The subscribing witnesses also testify with some distinctness as to his capacity. One of them had been acquainted with him for many years, and drew the will in question. He had previously, on two occasions, made some alterations in the testator’s wills. He testifies that before the will now contested was made, the testator had informed him of his desire
It must be admitted that-the evidence before the surrogate was conflicting upon the question of capacity. Nor is it entirely clear and satisfactory that the execution of the will' was procured by the undue influence of the proponent, with whom the testator resided.
As the case stands, I am inclined, upon the whole, and in view of the surrounding circumstances, to reverse the decision of the surrogate. I am fully conscious of the difficulties attendant upon a review of the decision of another tribunal, when the court has not the- advantage of hearing and seeing the witnesses testify personally, and can only determine the weight to be given to their evidence by the record of the testimony. I should have considerable hesitation in reversing the decision of an inferior tribunal in a close and doubtful case, if the judgment was final and conclusive. As, however, the effect of a reversal in such a case only is, to present the case to another court and to a jury foi* determination, upon such evidence as may be brought before them, we are at liberty to scrutinize the evidence and decision of the surrogate more closely.
The order rejecting the will must be reversed, and a feigned issue must be made up, to try the questions arising upon the application to prove the will. And the issues ma^ be tried upon the m'otion of either party at a circuit court to be held in Ulster county- The costs of this appeal to the appellant must abide the event of that issue, and be paid nut. of the estate if he is finally successful;
Eogeboom, Peclcham and Miller, Justices.]