4 Bradf. 226 | N.Y. Sur. Ct. | 1857
The decedent died in the City of New York, on the 31st day of October, 1856. On the 28th day of the preceding April, the will now presented for probate was executed by him at his residence in this city. The instrument devises and bequeaths all his property real and personal to Mrs. Margaret Gombault and Mrs. Sarah Monfort, two widow ladies with whom he had been residing for a number of years. It does not appear that the decedent left any known heirs or kindred, and the will has been contested by the Public Administrator, representing the City of New York, and in behalf of the Attorney General, representing the State of New York, as in case of an escheat in default of a valid testamentary provision.
The decedent was about sixty-eight or seventy years of age; his health had been declining some time before his decease,
At the time of the execution of the will, the question was written on a slate, “ Do you wish to make your will now V’ He nodded his head in approval. He then read the instrument, and again nodding approval, proceeded to sign it; he was then asked on the slate, “ Is this your will ?” to which he signified assent, by nodding his head, and making some oral declarations, to which I shall hereafter particularly allude ; he requested two at least of the three subscribing witnesses to sign; they subscribed the will in his immediate presence, and thus all the formal ceremonials were accomplished. Mr. Little, one of the witnesses, stated in his direct examination, that no one requested him to sign, but at a subsequent stage of the cause, he further testified, that the decedent had on several previous occasions stated his desire to make his will, and that Mr. Little should be present as a witness at the time—that he did not recollect that at the time of the execution, the decedent did not ask him to attest the paper, but from his familiarity with him he was more likely to intimate his wish by a sign or a nod, than by speaking, and that he did, in fact, motion to him to sign as a witness. Mrs. Thompson, one of the witnesses, states, however, quite. distinctly, that the decedent requested both herself and Mr. Little to attest the instrument; and I have no doubt the fact was so. The formalities were described in the attestation clause, and the parties had received the instructions and were acting under the supervision of a legal gentleman, who was within call at the time. The probabilities are, that the statutory forms were complied with ; but; independently of inference, we have
The next point for consideration is, to inquire whether the decedent had sufficient capacity to perform a testamentary act at the time of the execution of this instrument. It is alleged on the part of the contestants that he was generally incompetent, and especially at or about the period of the celebration of the will, was in a state of mental derangement. The first witness, chronologically speaking, adduced to testify on this point, was a policeman who accompanied the decedent to the hospital, at the time of his fall in December, 1855. The officer states, that as they rode in the carriage together, he asked Mr. Bach several questions; that he seemed confused, mumbled indistinctly, had a vacant stare, and gave no response to his inquiries. In view of the severe fall and consequent shock to his system, this conduct is not at all remarkable, and is by no means indicative of any permanent mental injury, while the failure to answer questions admits of the simple solution that he was totally deaf. From this period until about the month of April, there is no evidence tending to impeach the decedent’s testamentary capacity. Mr. Ludlow states that in the spring he was employed to sell Mr. Bach’s house, and the premises were put up at auction and bought in, the 14th or 15th of April. He also says that the sale was previously countermanded by Mrs. Monfort, who said, “ that Mr. Bach might be incapacitated from transferring the property either by death or from want of mind, as he seemed at that time to be entirely out of his reason.” Dennis Began deposes that he was employed for a month by Mrs. Monfort to take care of the decedent—that he accom
In regard to Began’s testimony, it is observable, that, so far as his knowledge extended, he specifies but a single occasion during the whole month he was in the house, when anything indicative of mental disorder occurred in his presence. He says, this happened the night of the same day Mrs. Mon-fort communicated to him the fact that Mr. Bach had devised his property to her and her sister. He does not distinctly state that his informant said the will had been made that day; but if he meant so to he understood, it is certainly somewhat remarkable, if she entertained a belief that Mr. Bach was deranged, that the communicative beneficiary under the will, deeply interested in its validity, should have thus aided to expose its invalidity. The statements of Dr. Storer tend to show that there must be some error with this witness, as to time, if he designs to identify the day of the occurrence to which he has sworn, with the date of the will. If, however, he only means to say that it happened the same day he heard a will had been made, then the instrument may have been executed, for aught that appears, several days before, and the fact not have been made known until then. Began does not recollect the date of his entering, nor the date of his leaving Mr. Bach’s service, nor the date nor the day of the week he sat up with him. He says, however, that it happened after Mr. Bach was injured by the fall, and here I think may be a clue to the difficulty. After the fall Mr. Bach did not go out, and there was no longer need for Began’s services. How he states that he left in the month of May, and Dr. Storer affirms distinctly that the fall happened on the fourth of May. Hay, more, Began himself incidentally states, that Mr. Bach fell while taking a walk on Sunday; and the fourth of May, 1856, was Sunday. These circumstances all agree
The interviews stated by Mr. Keyser are placed by him between the 21st and 24th of April. It is urged, that, as he had just come from the country, the remarks of Mr. Bach at the first visit, in regard to produce, were not irrational; and that the decedent’s deportment at the two succeeding interviews, was entirely' consistent with the state of his feelings towards the visitor. Without entering into these considera
On the other hand, and in support of the will, the proof is as follows: Mr. Little, an old and intimate friend of the decedent, and one of the subscribing witnesses to the will, states, that at the time of the execution of the instrument, Mr. Bach was sitting up in his chair, shook hands with him, examined, and apparently read the will, with deliberation, and gave it his approval. He also says, that he had frequent interviews with the decedent, both before and after the 28th of April, in the course of which he communicated with him by writing on a slate, Mr. Bach reading what was written, aloud, and then commenting upon it, and conversing at length. Mr. Little declares, that at the time the will was made, he observed no difference as to the state of his mind, except what was naturally attendant upon the gradual failure of his bodily health, and likewise an apparent indisposition to talk. Indeed, he says very broadly, “ up to the time of his death, I observed no signs of mental derangement.” Mrs. Thompson, another of the subscribing witnesses, was acquainted with Mr. Bach, for two or three years, and saw him every day or two during his entire illness. She testifies that at the time of the factum of the will, Mr. Bach requested her to attest the document, and, after it was signed, expressed that “he was satisfied, and it was just as he wanted it;” that “his mind
This testimony carries great weight. It shows, at the least, that parties who were in the habit of constant intercourse with the decedent observed no symptoms of incapacity actually existing, until after the faolmm of the will. Still the disease was insidious in its approach, and slow in its progress. The symptoms were more definite and marked in the later than in the earlier stages; but while in the course of their onward movement the shades of difference day by day were almost imperceptible, how shall we be able accurately to mark out the boundary line between a rational and an irrational condition, and to say, at this point the former ceased, and the latter began. This is always a great difficulty in cases of gradual development, and it leads to a careful scrutiny of an act performed shortly before the accession of undoubted symptoms, in order to see whether the act itself is conformable to the views of the party when in a state of health; whether it is natural, rational, and accordant with the wishes, affections, dispositions, and circumstances of the actor. I think, moreover, that there is ground for suspicion that some time in the month of April, apprehensions were entertained of the possible approach of mental derangement. But, if the symptoms giving rise to this apprehension were alarming, the proof tends to show that they relented, and that his faculties continued in a rational condition, perhaps with occasional changes, for a considerable period- after the execution of the will. Nor can there -be any doubt that even after his disease became confirmed, Mr. Bach had lucid intervals. Among the most mysterious of the phenomena of the human mind, is the variation of the power and orderly action of- the faculties, under different circumstances and conditions, and at different times; and especially mysterious is the oscillation from insanity to sanity, the rational power often fluctu
Sir Wiliam Wynne remarks that “ the strongest and best proof that can arise as to a lucid interval, is that which arises from the act itself; * * * if it can be proved and established that it is a rational act, rationally done, the whole thing is proved.” (Cartwright vs. Cartwright, 1 Phill. R., 90.) Without, however, acceding to the entire length and breadth of this view, it must be admitted that the nature and character of the act which is the subject of criticism, must have great influence in determining the mind of the court in its judgment of the case. It is also worthy of remark, that a lucid interval is more easily established in cases of delirium, or fluctuations arising from temporary excitement, or from periodicity in the attacks of the disease, than in cases of habitual insanity. In Coghlan vs. Coghlan, (1 Phill. R., 96,) the deceased was proved to have been completely insane before the will was thought of. The instructions for drawing the instrument were given in a composed manner, there appeared to be no disease at the time, and the will being reasonable and consistent with his intentions when his mind
In the present case, giving the evidence of the witnesses for the contestants all the weight claimed, keeping in mind, however, the uncertainty as to the precise time of the occurrences, except the instances proved by Mr. Keyser, we have proof of capacity shortly before, and capacity for some time after; besides the absence of any irrational signs at the time of the celebration of the will. Dr. Storer is explicit in his statement that delusions were evinced only during the later stages of the disease, and it is obvious, generally speaking, that the earlier symptoms of the case indicated a torpid rather than irregular or abnormal mental action—inertness rather than aberration.
After a careful consideration of all the evidence, duly comparing and weighing the whole, I am satisfied there were periods after the accession of the disease, and even for weeks after the date of this will, when the decedent had the requisite degree of capacity for the celebration of a valid testament. But in view of all the circumstances and proofs, the apprehension existing as to the probable nature of his disease, and the preparation of the paper by the parties benefited by its provisions, I am bound to proceed with caution and circum
Mr. Little says, “ he did nothing more in the will, than what he always told me he. intended to do; * * * he told me he intended to give the ladies all he had; he spoke particularly of Mrs. Gombault; he said they were the only ones to receive it; * * it was a matter always introduced by himself.” Mr. Benjamin Merritt testified that in the spring of 1854, Mr. Bach was desirous of purchasing a house, and stated to him in that connection, that “ he wanted to buy a house for Mrs. Gombault.” Mr. William H. Merritt, who was on intimate terms with Mr. Bach, deposed, that in the year 1854, he had several confidential conversations with him relative to the purchase of a house “ for his own residence as well as that of Mrs. Gombault and Mrs. Monfort* * * “ he stated that his relations with Mr. Gombault had been of the most intimate character, associated with him in business ; that on some particular occasion previous to his death, at which time he was embarrassed pecuniarily and felt considerable anxiety for his widow, Mr. Gombault anticipating his death, Mr. Bach promised him, ‘ with all the importance to my mind,’ Mr. Bach so expressed it, ‘ of a death-bed promise,’ that he would provide for Mrs. Gombault.” * * * “The words I have given were his precise words, and they were very emphatic.” Mr. Tillinghast also testified to a conversation with the decedent about the same period, in respect to the purchase of a residence, in the course of which he stated that “ he had once been in business with Mr. Gombault, and promised him at his death, that he would provide for Mrs. Gombault, or see that she was taken care of.” Mrs. Thompson says, that within
In the first place, then, after this review of the testimony, whatever may be the proof on other points, we have the doctor’s evidence, clear, distinct, and definite, to this effect— that he was of sound mind the day preceding and the day succeeding the execution of the will. The fact that medical visits were then made only on alternate days, is repugnant to the idea that any alarming symptoms were present at that time. A witness testifies that on the morning of the 28th of April, the decedent requested Mrs. Monfort to attend to the matter of his will; when the instrument is subsequently presented, the ceremony is performed rationally; he examines the paper, declares it to be satisfactory, and describes it as devising his estate to the two beneficiaries; a night intervenes, and he salutes his physician in the morning with the expression of his pleasure that he had accomplished a chosen purpose, and again exhibits an intelligent comprehension of the nature and special effect of the act. In the next place, after full examination, the contents of the will appear to be in harmony with his previous declarations. Tears before, he had promised an old associate and friend, whose mind, in view of approaching death, was filled with apprehensions for the fate of his wife, that he would provide for her. He had kept his pledge for many years, and when such voluntary obligations too often press more lightly upon the conscience than they do when life is drawing to a close; he had continued steadfast to his self-assumed duty, had extended his benefactions to the sister of his deceased friend’s widow, and, for a long period, they had all abode under the same roof as