1 Pow. Surr. 316 | N.Y. Sur. Ct. | 1893
This is a proceeding to secure probate of the instrument propounded as the last will and testament of the deceased, such probate being opposed upon the grounds of alleged fraudulent alteration, undue influence, and lack of testamentary capacity.
Solander Carver died at the town of Great Valley, in the County of Cattaraugus, on the 1.4th day of February, 1893, at the age of 69 years, leaving him surviving his widow, Rebecca Carver, one sister, several nephews and nieces, but no children or lineal descendants, and possessed of real estate of the value of about $7,000, and personal property to the amount of $14,000. The instrument presented for probate herein bears date on the 9th day of February, 1893, and by its terms be
A methodical analysis of the objections urged against probate herein, and of the facts and circumstances upon which the same are predicated, leads us first to an examination of the claim of fraudulent alteration. Questions of this character have been before the courts so frequently that there need be but little difficulty in determining the general legal principles applicable thereto, and in passing it will be observed that moré marked distinctions exist between alterations, erasures and interlineations appealing from inspection of wills than any other class of legal documents. As a general rule such alterations, in the absence of proof to the contrary, are presumed to have been made before the execution of the writing in which they appear. Such presumption seems to have had its origin in the fact that material alterations modifying or defeating vested rights under written documents are usually the outgroAvth of a criminal intent, the existence of Avliich the lavv does not Avillingly presume, always preferring the presumption of innocence to that of guilt; but an exception to such rule exists in ease of wills, which from their very nature cannot become operative or vest any rights, and which are absolutely subject to the volition of the testator, to the time of his demise, and Avhere the necessity for the presumption above referred to does not exist. The generally recognized rule is that, where alterations appear upon the face of a
The second point of variance between wills and other instruments containing alterations is the effect thereof upon the validity of the instrument containing them. It is the general rule that a material alteration in written documents, made after execution, for fraudulent purposes, vitiates the entire instrument. Such, however, is not ordinarily the ease with wills. The effect of an unauthorized and unauthenticated erasure or interlineation in a will, made after execution, is to render the change thereby sought to be made inoperative, leaving the will to stand in form and effect as before such alteration was attempted. The reason for such a rule in case of wills is apparent. The statute has surrounded the execution of testamentary instruments with certain reasonable forms and ceremonies as a shield and protection against fraud and imposition, and the purpose of such precautionary measures might be entirely defeated if held applicable only to the original execution, leaving all subsequent alter
The first item of the will in this case is as follows:
“First. After all my lawful debts are paid and discharged, I give and bequeath unto my beloved wife, Rebecca Carver, out of the avails of my personal estate, the sum of four hundred dollars annually, to be paid to her on demand by executor during her life. I also bequeath to my said wife all of my household furniture, goods, books, pictures, organ, clothing, etc., to be accepted in lieu of dower.”
It is asserted by the contestants that the words “to be accepted in lieu of dower” were inserted after the execution of the will. This allegation presents a question of considerable importance, and one worthy of careful consideration, for the legal effect of the words claimed to have been added is to very materially diminish the value of the widow’s interest in the estate of the deceased. If it appears with reasonable certainty from an inspection of the instrument that such words were not written at the same time as the other portions of the will, then the presumption is that they were inserted after execution, because in this case the alteration does operate in favor of the party holding the instrument, and it becomes his "duty to show sufficient facts to overcome such presumption. This will is written upon the usual printed blank with ruled lines, and all thereof except the signatures of the testator and attesting witnesses was in the handwriting of the proponent, , The words, “clothing, etc., to be accepted in lieu of dower,” are -written upon' and constitute one entire line in regular order,—no crowding of words'or letters, and no alterations', erasures or interlineations, or other peculiarities observable from inspection, except that the letters in the-words “to be accepted in lieu of dower” are somewhat heavier, and of a slightly darker shade, than the letters in most' of the other portions of said instrument, but no darker and but little heavier than the word “fifth,” at the beginning of the fifth item of said will, and neither darker nor heavier than the letter “S” in the name of the deceased at the beginning of the
The second proposition in this case is that of alleged lack of testamentary capacity. The law does not, of course, attempt to-define any particular grade of mental ability or acumen necessary to qualify one to make a will. Wills are made by all classes-of people, in every station of life, and under almost every conceivable set of circumstances; by persons of weak intellect, and by those of magnificent ability; sometimes in the midst of life- and business prosperity, at other times in extremis, or while overwhelmed with adversity. Hence it is impossible to formulate any precise rules applicable to any particular case. The-most that the courts have attempted to do was to dispose of each individual case as it arises, upon its own peculiar facts and circumstances, and in so doing establish certain very general propositions bearing upon this subject. It has been asserted that in law the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as these terms are used in their fixed legal meaning; and if compos mentis, he can make any will, however complicated; and, if non composmentis, he can make no will, however simple. Delafield v. Parish, 25 N. Y. 9. Again, it has been asserted as a general proposition that one capable of comprehending the condition of his property, and his relations to those who are the natural objects of his bounty, and able to collect- and retain in his mind without
The remaining question is that of the charge of undue influence exercised upon deceased by the proponent at the time of the preparation of the will. Having determined that the testator at the time of the execution of this will was of sound mind, fully competent to transact business, capable of comprehending the extent of his property and his relations to those around him, it follows as a corollary thereto and a natural deduction therefrom that the making of the will in the form it now presents was the free, untrammeled act of the testator himself. The cases have quite clearly defined the grade and character of the influence which must be shown to have been exercised upon the testator to justify denying probate to a will. In order to avoid a will upon any such ground it must appear that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which by importunity that could not be resisted constrained the testator" to do that which was against his free will and desire, but which he was unable to refuse, or too weak to resist. It must not be the promptings of affection, the desire to gratify the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts or friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. Society v. Loveridge, 70 N. Y. 387-394; Gardner v. Gardner, 34 N. Y. 155; Marx v. McGlynn, 88 N. Y. 357; Seguine v. Seguine, 4 Abb. Dec. 191; Dean v. Negley, 41 Pa. St. 312. The exercise of such undue influence must be proved, and, while it is not necessary, and ordinarily not possible, to establish it by ■direct proof, the circumstances relied upon as inferentially showing the same must be of such a character as to naturally lead to the conclusion that such influence had in fact been exerted. Brick v. Brick, 66 N. Y. 144. It is not sufficient .to
So 1 think it may be said that the general principle adduced from these various authorities applicable to this case is that under the peculiar circumstances attending the making of this will, the burden was imposed upon the proponent of showing that the will, in its present form, correclv represents the wishes ■of the deceased; and it is urged on part-of the contestants that the evidence bearing upon that question falls short of meeting this requirement; and that it fails to show that the testator was fully apprised of the contents of the will before executing it. This charge necessitates an examination somewhat carefully of the facts attending such, execution. Deceased was taken sick February 9, 1893. His physician was called, and visited him at the hour of 4 P. M. of that day, and found him in bed, troubled with a recurrence of his former ailment—inflammation -of the bladder—and with an inflammation of the lunes. The physician visited deceased on the following day (Wednesday), and discovered that- the inflammation of the lungs was extending, and had assumed the form of pneumonia. He visited him again on Thursday—the day the will was drawn—about noon, ■examined him carefully, and concluded that his recovery was a matter of serious doubt. He then talked with the deceased about his condition, and informed him that he was very sick,
(Note as to alterations in wills:)
General Observation.—When Alterations Deemed to Be Made (a) Before Execution, (b) After Execution.—■ Burden of Proof.—Voting of Interlineations.— Where Probate of Whole Instrument Rejected.
General Observation.
The leading case upon this subject- is Crossman v. Crossman, 95 N. Y. 145. In that case testator had executed his will in duplicate; one only of the instruments was presented for probate. In the other, there ivas an interlineation of the name of one of the executors which apparently had been left out in copying, and the interlineation was noted at the bottom of the instrument before the attestation clause, and it was held that there was no presumption that the interlineation was fraudulently made after execution, and further, that where an interlineation is fair upon its face, and it is entirely unexplained, there being no circumstances whatever to cast suspicion upon it, it would not- he proper for any court to hold that the alteration was made after execution; but if there were any suspicious -or doubtful circumstances growing out of the mode of the alteration, the ink in which it was made, the fact that it was in favor of tlie party holding the instrument, and that it is not noted at the bottom, then these and all the other circumstances must be submitted as questions of fact to be determined by the court, -in deciding whether the alterations were made before execution or not.
When Alterations Deemed To Be Made Before Execution.
A testator had two sons and three daughters, and by his will
When a will is found carefully preserved among the testatrix’s papers, and it appeared that her signature had been erased by drawing diagonal lines over the name and then nearly erasing such lines and the signature, and that the will now bore testatrix’s genuine signature, carefully rewritten over the original signature, which was written with a different ink from that used in the body of the will or by the witnesses, held, that as the evidence showed that the testatrix might have used different ink from that used by the witnesses, and as the burden of proof was upon contestants to show that the erasure and subsequent■ signature were made subsequent to the execution of the will, the court could not (following the rule that when an interlineation or erasure is fair upon its face and entirely unexplained, there is. no presumption in the absence of any suspicious circumstances that it was fraudulently made after the execution of the instrument) presume as matter of law that the erasure was made at some time subsequent to the execution of the will. (Matter of Wood, 32 St. Rep. 286, 2 Connoly, 144, 11 N. Y. Supp. 157.)
When the bottom of the first page of a will was cut off, but. not so as to destroy its continuity, and the paper was folded in such a manner that neither of the subscribing witnesses could swear that- the paper presented for probate had been mutilated or changed in any way since its execution, and it was found among decedent’s private papers in its present condition, and it- does not appear to have been distorbed until so found, them is no presumption that it was mutilated after execution. (Matter of Homes, 32 St. Rep. 902.)
When the testatrix was her own scrivener, and the custodian of the will, interlineations shown to be in her handwriting and erasures will be presumed to have been made by her prior ti> execution. (Matter of Potter, 33 St. Rep. 936, 12 N. Y. Supp. 105.),
A handwriting expert, testified that the first and second pages of a will were written on a half sheet of paper, larger and of a different milling from the rest of the will, and were in a running hand, which spread much more than the waiting of the following pages, which was an engrossing backhand, changing to a running hand toward the last, and that the words “two thousand” in a clause giving an annuity of that amount in dollars to testatrix’s granddaughter, were written over an erasure made with chemicals. Held, that these peculiarities rendered it incumbent upon proponents to satisfactorily explain same, and held further, that as the attorney who drew the will testified that he used a prior will as a draft in the preparation of
When Alterations Deemed To Be Made After Execution.
After a will had been duly executed, certain alterations were-attempted to be made by testator by writing in the will, erasing-' and interlining. Held, that the will as originally executed, should be upheld. (Quinn v. Quinn, 1 T. & C. 437—citing Jackson v. Holloway, 7 Johns. 394, and McPherson v. Clark, 3 Brad. 92.)
To the same effect is matter of Prescott, 4 Redf. 178.
In Dyer v. Erving, 2 Dem. 160, it was held, following Wetmore v. Carryl, 5 Redf. 544, that in the absence of evidence to the contrary unattested alterations upon the face of a will must be presumed to have been made after its execution.
Material alterations in a will are not presumed to have been made before the execution thereof, where no explanation of the erasures is given, and where suspicion arises upon the face of the-paper, and from surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper.. (Herrick v. Malin, 22 Wend. 388; Smith v. McGowan, 3 Barb. 404; Acker v. Ledyard, 8 id. 514.)
After executing her will, testatrix stated to the scrivener she-wished to make further bequests. Instead of preparing and having executed a codicil, the scrivener wrote testatrix’s directions on a slip of paper, which he subsequently pasted upon the will, the latter having been cut into, so as to permit the clause to be inserted in its proper place as the seventh subdivision of the will. There was no republication of the will after that clause had been written. Held, that the will should be admitted to probate, excluding the inserted clause. (Stevens v. Stevens, 6 Dem. 262.)
An interlineation, erasure, or other alteration made in a will,, either by the testator or a stranger, after due execution of the instrument, without a new attestation1, does not avoid the instrument, but the court may disregard the same and probate the
Burden oe Proof.
Material alterations or erasures in a will are not presumed to-have been made before the execution thereof where no explanation of the erasures is given, and where suspicion arises upon the-face of the paper and other surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper. In such case the propounder of the instrument must make the doubt clear. (Matter of Barber, 72 St Rep. 771.) •
Doting oe Interlineations, etc.
Interlineations in a will need not be noted at the foot of thestrument, provided that the place where it should appear is made before the execution and publication of the will. (Matter of Whitney, 70 St. Rep. 259, 90 Hun, 138—citing In re Voorhees, 6 Dem. Sur. 162; Crossman v. Crossman, 95 N. Y. 145, 153; Tonnele v. Hall, 4 N. Y. 140.)
An interlineation may be made in a will,' as in any other instrument, provided that the place where it should appear is designated by the instrument with sufficient certainty. A will was written on a blank form. The first and second clauses filled up the blank space in the will, and at the end of such space were the words, “See annexed sheet.” The third and fourth clauses were written on a separate sheet, fastened by metal staples to the face of the will at a point near the end of the second clause. Held, that the interlineation or attached paper, by the terms of the instrument itself, was to come in and
When Probate op Whole Instrument Rejected.
In doubtful eases, where material provisions in a will have been erased or altered, and the court cannot determine from the proof whether the alterations were made before or after execution, probate must be refused, and the whole instrument rejected. (Matter of Barber, 12 St. Rep. 771.)