22 N.Y.S. 290 | N.Y. Sup. Ct. | 1893
On the 16th of May, 1891, Alfred Bedlow died in the city of New York, leaving, him surviving, his widow and three children. He left a will bearing date the 4th day of August, 1890, whereby he appointed one Sarah A. Stilwell the sole executrix of the will, and, after giving his wife and children one dollar apiece, he left a legacy to his niece, and the residue of his property he devised and bequeathed to said Sarah A. Stilwell. The probate of the will was opposed by the widow and children of the testatrix upon the usual grounds. None of these grounds, however, seem to be insisted on upon this appeal, except that the execution of the will was procured by undue. influence; and in the discussion of this question it is necessary that the court should consider the circumstances surrounding the testator at and about the time of the execution of the will, and subsequent thereto.
It is urged that the testator was weak, and easily influenced by those who surrounded him, which fact is a circumstance, undoubtedly, to be taken into consideration with the other evidence. But the mere fact that he was weak, and easily influenced, does not, in itself, raise the presumption that such influence was exercised simply because a will such as was satisfactory to the appellants had not been made by the testator. Upon examination of the evidence in this case it does not seem to have been satisfactorily established that the testator was so unusually weak as is claimed by the appellants. It is true that several witnesses testified that he was weak and vacillating, and so impressed with those he was with that he was very apt to do as they told him. But it also appears from the evidence in respect to his relations with his family that he had, to a very large extent, a will of his own, and a pertinacity of purpose which was quite the reverse of the weak, vacillating, and easily influenced mind which the testimony of some of the witnesses would lead us to believe the testator possessed. And, while it is undoubtedly true that it is always difficult to produce testimony showing undue influence over a testator, yet the mere fact that the opportunity of exercising undue influence has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence, by no means raises a presumption that such influence was exercised.
It is assumed by the argument of the learned counsel for the appellants that because the counsel for the testator was the counsel for the beneficiary under the will, and because such counsel might be interested in the maintenance thereof, therefore there is a presumption arising which it is necessary for the beneficiary to rebut. In this he confuses the rule which pertains to contracts or gifts inter vivas, which does not apply to gifts by will. It is true that transactions inter vivas between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, naturally excite suspicion, and, when the situation is shown, then there is cast upon the party claiming the benefit or advantage the
“The right of a testator to dispose of his estate depends neither upon the justness of his prejudices nor the soundness of his reasoning. He may do what he will with his own, and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.”
But it is claimed that the decree should be reversed because of improper rulings upon the part of the surrogate in reference to the admission and exclusion of testimony. It seems to us that error was committed in permitting the evidence of Mr. Keeler, who was the attorney who drew the will, and was the counsel for the testator, in reference to personal transactions between himself and the deceased, of a professional character, other than the circumstances immediately surrounding the execution of the will, of which he was a witness. Loder v. Whelpley, 111 N. Y. 239, 18 N. E. Rep. 874. But this does not necessarily7 call for a reversal of the decree, if it be apparent, upon the whole case, irrespective of the evidence improperly admitted, that the testator was competent, and that the will was properly admitted to probate. It was held in Clapp v. Fullerton, supra, that, on appeals from the decrees of surrogates, the supreme court succeeds to the jurisdiction and authority of the old court of chancery. The review is in the nature of a rehearing in equity, and the admission of improper evidence on the original hearing furnishes no ground for a reversal of the decision, if the facts established by legal and competent testimony are plainly sufficient to uphold it. Schenck v. Dart, 22 N. Y. 420. This rule is also recognized in the case of Foote v. Beecher, 78 N. Y. 158, in which it is stated that, upon an appeal from a surrogate’s decree upon the probate of a will, the hearing is de nova, and the case may be determined upon the competent evidence appearing, disregarding such as is incompetent. Code Civil Proc-. § 2586. In Re Smith, 95 N. Y. 516, the change in the law introduced by the Code is noticed. The last clause of section 2545 of the Code declares that no decree or order of a surrogate shall be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. Be-, fore the Code, the admission of incompetent evidence was presumptively7 injurious. But the section in question seems to have changed this presumption. In the Case of Smith it is said, under this section, that when the court of review finds that incompetent evidence has been received, or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot see that, notwithstanding the error, the judgment is right, or they entertain a reasonable doubt upon the subject, then a case is presented where the party excepting is clearly prejudiced, within this section. He was de
It is further claimed that the exclusion of the evidence of the appellants herein, of personal transactions -with the testator, was error, because they had a right to show that the testator was mistaken in respect to their attitude towards him, and had no grounds or reason for the statements contained in his will, and that the widow and children were entirely justified in their course. But we fail to find any authority for the reception of any such evidence. Section 829 expressly provides the only cases in which a person interested in the event may be examined concerning personal transactions or communications between the witness and the deceased; and they are, so far as applicable to this case, only where the executor or administrator or person so deriving title or interest is examined in his own behalf concerning the same transaction or communication. In the case of Smith v. Christopher, 3 Hun, 585, which is referred to as an authority to support the right of these contestants to testify, all that was held was that, if a party mentioned in (as it was then) section 399 of the Code testifies to declarations of a deceased person in his own behalf, the prohibition does not apply to counter declarations offered by the adverse party. There was no evidence of any person interested in this proceeding, if we except that of the attorne}*-, (which evidence the court has already stated should not have been admitted,) showing declarations upon the part of the testator in favor of his testamentary disposition. It is true it is claimed by the appellant that Mrs. Stilwell, the mother of the chief beneficiary under the will, comes within the prohibition of the section, because of her relationship to the beneficiary. But we fail to find that the courts have by judicial decision legislated to the extent claimed. . The language of the section of the Code upon this subject certainly embraces nobody but the parties in interest, and relationship has never yet been held as a disqualification. Attention is called to the case of Potts v. Mayer, 74 N. Y. 594, as an authority in favor of the contention of the appellants. But in that case the testimony of a deceased party, taken upon a former trial, was read in evidence; and it was because such testimony was read in evidence in regard to the transaction which was under consideration that the witness was allowed to testify in respect thereto. The case of Lewis v. Merritt, 98 N. Y. 206, has no application to the case at bar. In that case the executor, bringing an action in his representative capacity, testified .to the existence of a certain state of things, "and the defendant was refused the opportunity of showing by his own testimony that such state of things did not exist; and the court held that to be error, upon the ground that the prohibition