16 Daly 540 | New York Court of Common Pleas | 1891
(charging jury.) Three questions are submitted to your determination: First. Was the paper propounded as the last will and testament, of William T. Blair, deceased, executed in conformity with the provisions of the statute? Second, Had he testamentary capacity at the time of the execution of the instrument? Third. Was the instrument his own .voluntary act, or was it the product of undue influence?
The solution of these questions is for you, and you alone. You must determine the credibility of witnesses; you must estimate the weight of conflicting evidence; you must ascertain what facts are established by the evidence; you must deduce all inferences from the established facts. My province is only to instruct you as to the rules of law which should guide your deliberations. Your verdict must necessarily be compounded of law and fact, and, while,.the facts are exclusively for your decision, you must accept the-law as it shall be delivered to you by the court.
The law has prescribed certain formalities in the execution of a will, and, hai> made the due observance of them indispensable to the validity of a testa-sdiitary paper. The first" requisite is that the paper be subscribed by the-testator i n the presence of the attesting witnesses. This fact being established jy uncontroverted evidence, you must find that the paper was subscribed by the testator in due compliance with the legal prescription. The second req
Before proceeding to instruct you upon the other issues submitted for your determination, I would impress you with the importance of two considerations. The first is that every man of legal competency has the right to dispose of his property by will. This right the law gives him, and, if the right be legally exercised, no person whatever can challenge or defeat it. The accumulation of property, which, by his own industry and frugality, a man has made, he may distribute at his death according to his own good pleasure; and, provided his testamentary dispositions be in conformity with law, they are final and irreversible. The second consideration is involved in the first, and it is that, when a man has made a valid will, neither court nor jury, nor both combined, can defeat or disturb its intended operation, if the will be legal, neither court nor jury has the authority to pass upon its wisdom or justice, or to redress its supposed follies or inequalities. No matter how flagrantly atestator has violated the obligations of affection or friendship, no matter how grievous the disappointment of husband or wife, or of son or daughter, his will, if valid, must stand, and his moral delinquencies must be left to the cognizance of that higher tribunal before which he lias already appeared.
It is submitted to you to determine whether the testator was competent to make a will. In order to testamentary capacity, the statutes require “a sound mind and memory.” But these terms are not to be taken in their literal and absolute sense. The “sound mind and memory” which the law exacts as a condition of testamentary competency does not mean a mind without flaw, or a memory without fault. To require such an ideal mind and memory would be a virtual denial of the power to make a will, because imposing a condition incompatible with human infirmity. Neither is it requisite to testamentary capacity that the mind and memory be of the ordinary or average standard of the human intellect. Nor yet is a mind, weakened and disordered by age and bodily maladies, necessarily incompetent to the testament
But, although a man have legal capacity to make a will, still the will may not be the act of his own independent volition, but may'be the involuntary effect of undue influence, and whether the paper in controversy be the product of undue influence is submitted for your decision. Obviously, you cannot determine whether the testator executed the paper under the pressure of undue influence, unless you know what is “undue influence.” This is a •legal term, and you must understand and apply it in the sense which the law attaches to it. The expression is not “influence” simply, but “undue influence.” What, then, is the legal conception and definition of “undue influence?” I charge you, gentlemen, that as, on the one hand, undue influence does not necessarily involve physical force, constraint, or violence, so, on the other hand, undue influence implies something more than mere advice, argument, or persuasion. Advice, argument, and persuasion, if they convince the reason and move the affections only,—leaving the will still free and unfettered,— are not undue influence. Influence they are, certainly, but not undue influence. But even advice, argument, and persuasion, if they be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will ■of the testator to the will of another, till the testamentary instrument speak not his own mind and his own purpose, but the wish and purpose of another,— such advice, argument, and persuasion, so operating and with such effect, are undue influence. To be undue influence, the influence must amount to moral coercion, but if it amount to moral coercion it is undue influence, no matter how or by what instrumentalities produced. The human mind is so fearfully and wonderfully made; is open and amenable to such a diversity of influences;, ■the mind of one man so differs from the mind of another; the influences ■which sway the mind of one man are so different from the influences which sway the mind of another; and the moving springs of mental operation are so veiled from observation,—that it is impossible to know all the considerations that are compulsive upon the human will, or to measure exactly the precise force of any particular motive in determining human action. <
It results, therefore, that although, in order to find the fact of undue influence in the production of the paper in controversy, you must be satisfied that undue influence was actually exerted over the testator in the testamentary
As already intimated to you, gentlemen, it is not necessary that the fact of undue influence be proved by direct evidence. Indeed, as you must perceive, the fact in its very nature is to be inferred rather from circumstances,—from the surroundings of the testator, the character of the will, his family and social relations, the condition of his health and mind, his dependency upon subjection to the control of the person supposed to have wielded the influence, the opportunity and disposition of that person to wield it, and the acts and declarations of such person. Each case must be determined according to its own peculiar facts and circumstances, having in view the simple principle that no instrument can be established as a will unless it speak the free and voluntary purpose of the testator. If it be the will of another, to which the testator assented from mere habit, produced by prostration of body and mind and a sense of helpless dependence, then it is not his will, and should be rejected as the product of undue influence.
There are certain facts and circumstances, gentlemen, which the law recognizes as indicative of the presence or absence of undue influence, as evidence of undue influence or the contrary,—evidence the weight of which, however, you are to determine. On the one hand, if the instrument express the known and declared purpose of the testator, the presumption is that it is the emanation of his own untrammeled volition. But I am bound to say to you that here is no evidence that, prior to the execution of the instrument, the decedent intended to make such a disposition of his property as is contained in the paper before you. In the next place, if the testamentary disposition runs along the line of affection,—is in harmony witli the mental inclination of the testator,— that is a circumstances of importance to identify the instrument as an authentic expression of his wish and purpose. But I recall no evidence in the case indicating such an indifference towards the contestant on the part of the testator as would make probable the small and precarious provisions for her support contained in the paper before you. The provision for her is not only slight in relation to the value of his estate, but may be altogether illusory; for, as the contestant is to enjoy the $1,000 a year only until she reaches the age of 25, and is not to receive it at all before the death of her grandmother, it is quite obvious that, as the grandmother may not die until after the contestant has arrived at the age of 25, she may never receive a penny of the provision. Now, the contestant was the only surviving representative of the testator’s name and blood,—sole daughter of his house and heart,—and chis is all the provision he makes for her. It may be that this was precisely the provision lie intended for her, and that for reasons unknown to us, but satisfactory to himself, he purposely chose to mock her with a benefit that might be Dead-Sea fruit on her lips. But this delusive provision for his
On the other hand, as there are circumstances which the law recognizes as indicating the absence of undue influence, so there are circumstances which the law recognizes as indicating the presence of undue influence in the testamentary act. . While age and infirmity are not, of themselves, evidence of undue influence, yet the physical and mental weakness of the testator at the time of the testamentary act is an important circumstance for your consider.ation, because it is a fact of universal observation that the strength of the will depends largely upon the bodily condition, and we know that a pressure -that would weigh as light as a feather upon a robust and vigorous constitution might be irresistible to a mind exhausted by sickness and suffering. As a consistency between declared testamentary intention and the provisions -of a will affords a strong presumption that the will speaks the mind of the testator, so, conversely, a discrepancy between declared intention and the provisions of'the will raises a presumption, more or less strong, that the will ■ does not speak the mind of the testator. But this presumption may be over-come by evidence that the provisions of the will are nevertheless the dictate of the independent volition of the testator. How, it is an uncontroverted fact that by a previous will this testator had made liberal provision for his granddaughter,— a provision which contrasts glaringly with the meager provision in the paper before you. You have heard the explanation given for the proponents of this change in the testamentary intention of the -decedent, and it is for you to say whether the change is satisfactorily accounted for,—whether the change authorizes any inference of undue influence in the procurement of the paper before you.
If the testamentary dispositions be unnatural or unjust, that circumstance may be indicative of undue influence. It is for you to say whether the dispositions in the paper before you be unnatural and unjust, and whether they . authorize an inference of undue influence.
Clandesti'nity, in the execution of a will,—that is, exclusion of heirs from . any knowledge of the will-making,—maybe significant of some sinister interest in the concoction of the will. It does not appear that the contestant ever had any intimation of the preparation of this paper; but it does appear that when Zittel came to read it to the testator and the chief beneficiary under it, the doors and windows were closed. It is for you to say what,, if any, inference of undue, influence you will deduce from this circumstance.
The principal beneficiary of the will is the testator’s widow. Dr. Hawes ■says that before he would witness the will he asked the testator if it was satisfactory to his wife. In response to an inquiry why he so asked, he replied «that it was because of a controversy between them. Here, then, was a controversy between the testator and his wife. What was that controversy? Did the wife wish thq testator to abandon some testamentary intention that he entertained? And, if so, did she confine her solicitations to legitimate persuasion, or did she pursue her purpose within the region of undue influence? That the testator was anxious that the will should satisfy his wife is plainly apparent. He told Dr. Hawes that he had read the will to her, and that she assented to it. When the will was read by Zittel to her and the testator she said it was satisfactory. It was natural and proper that the testator should desire to satisfy his wife, and her solicitude about the will and his •desire to please her by its provisions are of no weight against the validity of the will, unless out of them came some effort to mould the will in her inter•est which amounted to undue influence.
It is my duty now, gentlemen, to direct your attention to a piece of evidence which, according as you may view it, is of great or is of no importance in the decision of the case. The contestant produced a petition for the revocation of the prob’ate of the will signed by the widow of the testator. In that petition she declared, under oath, that the testator was incapable of making a will, and that it was procured from him by undue influence. Mrs. Blair knew perfectly well the mental condition of her husband, and she was in a situation to be cognizant of any undue influence upon him. Her representation of these facts was clearly and essentially against her interest. Now, the law recognizes declarations against interest as a cogent species of evidence. But Mrs. Blair denies these declarations. She says the paper was fraudulently imposed upon her; that she believed she was signing a petition to compel the executors to give bond for their faithful conduct; that she never knowingly made the declarations now imputed to her. If her story be true, not •only does her signature of the petition weigh nothing against the will, but,
Gentlemen, the casé is of importance, not only to the parties in litigation, but to every member of the community; because, on the one hand, it affects the right of a man to dispose of his property by will as he may see fit; and, on the other, it affects the interest of heirs and next of kin that they be not disappointed in their just expectations by an irrational or fraudulent disinheritance. Because of the great importance of the case, I beg and I believe that you will decide it without prejudice or partiality, and that you will be guided to your conclusion by no other motive than a desire to do justice according to the law and the evidence.
The jury found against the validity of the will