200 A.D. 346 | N.Y. App. Div. | 1922
As against the petition for probate, the contestant, a nephew of the deceased, interposed the usual objections denying due execution of the will and codicil, asserting undue influence and also lack of testamentary capacity. The charge of undue influence was abandoned during the trial, leaving to the jury two questions only, first, as to the due execution of the instruments propounded; and second, as to the testamentary capacity of the decedent. The jury found that both instruments were executed according to the statute (Decedent Estate Law, § 21), but found that the decedent lacked testamentary capacity. From the decree entered refusing probate the proponent and certain legatees appeal to this court, their main contention being that testamentary capacity was clearly proved, and that the finding of the jury and the decree entered thereon are against the evidence and the weight of the evidence.
A reading of the record in this case will, I think, justify the claim thus made; and hence, it will naturally follow that the decree refusing probate on the ground of lack of testamentary capacity must be set aside.
The decedent, Julia F. Meade, at the time of her death on July 8, 1920, was about seventy-eight years old. She had never married, and her only heirs at law and next of kin are two nieces, who are Sisters of Charity; and one nephew, the contestant. The nieces took no part in the proceeding, though their position was evidently favorable to that of the contestant, for the record shows that they assigned all their right, title and interest in and to the estate to him. At the date of her death Miss Meade owned and lived in a three-story house, known as No. 581 Morgan avenue, Brooklyn, occupying the second floor herself, and renting out the first and third floors. She had resided in this same place for many years, and it was in this house that she died. The will in controversy was executed
The codicil makes no changes in the will, merely naming an executor in the place of Mr. Glinnen, who had died.
The will was prepared by William J. Amend, a reputable member of the New York bar, who had been decedent’s lawyer for some seventeen years before her death. His statement as to the circumstances concerning the making of the will is not disputed, and is substantially as follows: On May 13, 1913, the decedent called at his office in New York city, and stated that she wanted him to prepare her last will and testament. He asked for instructions concerning the matter and she gave them to him. He committed these items to writing in the form of a memorandum, which is in evidence in the case. Mr. Amend says that he had no previous personal knowledge concerning the facts set forth in the memorandum and that the information therein contained was given him by Miss Meade. An examination of this memorandum discloses, in the light of the evidence in this record, that the only error which appears is as to the matter of the decedent’s age. She gave it as over sixty-five, while the fact was that she was over seventy. I see nothing unusual in this, however. When inquiry is made concerning a woman’s age, the subject is somewhat delicate, often
Regarding the codicil and the execution of it Mr. Amend’s testimony is to the effect that about a year after the will was signed, Miss Meade notified him that Mr. Glinnen, one of the executors
The foregoing narrative embraces substantially every fact in connection with the execution of the will and codicil, and not being contradicted, fully justified the finding of the jury that the instruments in question were duly executed by Miss Meade. In fact, there is a concession in the record by counsel for the contestant that every act the testatrix did in Mr. Amend’s office, considered alone and without regard to her personality, was a rational act.
The evidence of these subscribing witnesses was in no way discredited or impeached, and because of the fact that they were present and saw the testatrix at the time that the will and the codicil were made, they had a better opportunity to observe, and more reliable sources of information in regard to her condition or whether or not she possessed testamentary capacity, than other witnesses. This will was executed with a careful observance of all forms of law. It was duly executed and should be probated, unless it was not the will of a competent testator. (Matter of Dunn, 184 App. Div. 386, 391.) Testamentary capacity has been defined to be the possession of enough mentality by a testator to understand and appreciate the nature and extent of his property; to know the relation he bears to those who would naturally be the objects of his bounty, and to know and understand what he is doing when he makes a will, i. e., to understand the nature of the transaction.
The proof in this case shows beyond any contradiction that Miss Meade fully understood and appreciated the nature and extent of her property. She lived in her own house, cared for and managed by herself for many years before her death. She regularly collected the rents from her tenants, put receipts for the exact amount of rent in their mail boxes on the very day she collected them; and personally made arrangements for the leasing of her apartments to them. She regularly deposited her money in the savings banks and personally made withdrawals therefrom. By habits of thrift and frugality she had accumulated an estate of $31,000; and when interest payments on her investments were not made on the day they were due, she was careful enough to make inquiry of her lawyers as to the cause of the delay. On the very day of the making of the codicil to her will, at her attorney’s direction, she withdrew from her savings banks $2,525, to be used with the proceeds of a mortgage due to her in another mortgage investment which was withdrawn on the advice of her attorney, and left it with him. It will be recalled that she talked with her lawyer about the funds which she held in trust and over which she had the power of disposition; she personally and specifically named the amount which she wished to give to the various legatees, and these amounts do not exceed the value of her estate. This, I take it, manifests a clear knowledge of the nature and extent of her property. That she knew the relation she bore to those who would be the natural objects of her bounty is abundantly proven by the minute and particular directions which she gave to the draftsman of her will. She had the contestant in mind, and did not want him to have any of her property, and said so. The lawyer to whom she gave this information knew nothing of her relatives and family, and derived all of his knowledge concerning them from her. The fact that she knew and understood what she was doing when she made the will is abundantly proven. The incident of the spelling of the name of the proposed executor is an important fact to be considered; and the letter which is in the record in the handwriting of the testatrix herself also is eloquent testimony as to her testamentary capacity and ability to make a will.
In addition to the subscribing witnesses to the will and codicil, the proponent produced some fifteen witnesses who had known the testatrix some of them for many years, most of them neighbors and friends of the decedent, who testified in detail regarding the mental alertness of Miss Meade; all of this testimony covering many years before and after the will was executed. Evidence was also tendered
As against the evidence adduced upon the part of the proponent, the contestant produced twenty-three witnesses, including three doctors. One of these doctors appeared solely as an expert, and testified only from, a hypothetical question. One of the other physicians testified that five or six years before the date of the trial he had treated a woman whom the contestant told him was the decedent; and that he found her suffering from “ hardening of the arteries,” which he said had evidently been caused by a “ stroke ” and a “ recovery ” from a stroke. This witness said he thought the condition had existed for about ten years. On cross-examination he admitted that he had kept no record of his treatment of the woman, and that the only means he had of knowing that it was the decedent at all was'the fact that the contestant told him so; that he had made an examination of her because the contestant told him that she was a “ nervous case,” and it was the contestant who furnished her “ history ” to him. The other doctor testified that he saw the deceased, and treated her four times in the early part of 1912 or 1913. He said that she had “ hardening of the arteries ” then. After this long lapse of time, while he remembered in detail the actions of the decedent, and the tests that he employed, he
Great stress is laid on the incidents just referred to as showing lack of testamentary capacity. I cannot see, in the light of the other testimony in this case, that the enlarged and exaggerated incidents referred to measure up to the degree of proof required to show lack of testamentary capacity. We have undisputed evidence in the case that the testatrix, a woman of advanced years, who always had taken care of her own affairs and taken care of them very carefully and prudently, went on the day mentioned from her own home in the eastern district of Brooklyn, over to the vicinity ' of Broadway and Park Row, in New York city, a distance of some seven or eight miles, without any help or assistance at all, to see her lawyer. The day being warm, she may have been overcome by the heat and become temporarily confused in that crowded neighborhood, which would not be in the least degree surprising; but she was not so devoid of. mind or memory but that she remembered her lawyer and the very street in which his office was located. Certainly a momentary confusion of this kind is not to be wondered at. It surely cannot be said that it furnishes any probative evidence of lack of testamentary capacity; and if she was in the weak physical condition which the contestant would have us believe she was at the time, and if he was so devoted to her care and welfare, why did he not go to her assistance and extend help to her instead of waiting until she had gone into the building where her lawyer’s office was located, and then approaching the policeman and asking him to remember the incident because the woman was his aunt? Incidents of this character are of too trivial a nature upon which to base a process for the destruction of a will. Great importance is also attempted to be given to the testimony of another witness named Jacobson, a hatter, who admits that he has been a personal friend of the contestant for thirty years. He swore that while the contestant was in his store buying a hat, a woman whom the contestant told him was the decedent, came into the store and demanded some rent from him, saying that she was the owner of the property. This same witness testified that he saw the same woman on two or three occasions on Manhattan avenue looking up at the sky and waving a cane, with some boys about her. He says that he again saw her “ walking back and forth from the sidewalk to the roadway,” near the Navy Yard, about five or six miles from her home; and upon his telling her that she was not in her own neighborhood, the woman maintained that she was. On cross-examination the witness testified that he fixed the time of these occurrences as
Such is the attack made by the contestant upon the will of the decedent, which, I think, upon a fair analysis of the testimony, cannot be deemed sufficiently strong to overcome the proof tendered by the proponent showing that the decedent possessed testamentary capacity.
There is no evidence in this case tending to show that at the time of the executing of the will and codicil the decedent was subject to any delusions. On the trial the testimony of the three subscribing witnesses, one of whom had known her for seventeen years, is that she was competent, and that her acts and conversations were entirely rational. Under these circumstances, I do not think that the surrogate was justified in submitting the question of the decedent’s testamentary capacity to the jury; and the motion made by the proponent that the will be admitted to probate should have been granted. The charge is made by the proponent in this case that substantially the whole contest is built up upon the indirect testimony of the contestant. I think the charge is not extravagant when the evidence in the case is considered, for throughout the entire testimony offered the master mind and hand of the contestant is clearly apparent.
The verdict should be set aside on the ground that the evidence is insufficient to show lack of testamentary capacity, under the rule as laid down in the following cases: Matter of Heaton (224 N. Y. 22); Matter of Wolf (196 App. Div. 722); Matter of Case (214 N. Y. 199), and Matter of Goodhart (173 App. Div. 256). The decree of the surrogate refusing probate and the order denying the motion for a new trial are reversed, with costs to the executors, appellant, payable out of the estate, and the matter remitted to said court with directions to admit the will to probate, with costs to the executors, appellant, payable out of the estate.
Blackmar, P. J., Kelly, Jaycox and Young, JJ., concur.
Decree of the Surrogate’s Court of Kings county refusing probate, and the order denying the motion for a new trial, reversed, with costs to the executors, appellant, payable out of the estate, verdict of the jury set aside upon the ground that the evidence is insufficient to show lack of testamentary capacity, and matter remitted to said court, with directions to admit the will to probate, with costs to the executors, appellant, payable out of the estate.