139 N.Y.S. 1003 | N.Y. Sur. Ct. | 1913
Contested probate proceeding.
The usual objections—testamentary incapacity and undue influence —were interposed to the probate of the will of Angelina Falabella by the husband of the testatrix. Husband and wife lived apart at the time the will was executed. The will is in favor of the mother of testatrix. There were no children of the marriage.
[ 1 ] The allegation that the testatrix subscribed the will is contested, and the 'genuineness of her signature is challenged. But three respectable and unimpeached witnesses swear that they saw testatrix sign the will with her own hand. The husband, who was not present at the execution of the will, simply states that, in his opinion, the subscription to'the will is not that of testatrix. No handwriting experts were called, and there was no other comparison of' handwriting specimens-conceded to be genuine. The husband was allowed to give his testimony without objection. Under this state of facts subscription of the paper propounded by testatrix is found. The other statutory' requirements for the due execution of the will were established by the testimony of the subscribing witnesses.
The burden of proof in contested probate proceedings is sometimes said “to rest ordinarily on proponent” throughout the cause. Matter of Kellum, 52 N. Y. 517; Rollwagen v. Rollwagen, 63 N. Y. at page 517; Matter of Will of Cottrell, 95 N. Y. 329, 336; per curiam, Dobie v. Armstrong, 160 N. Y. at page 590, 55 N. E. 302. But in other cases of equal authority it is stated that the burden of proof on a plea of undue influence, for example, is on contestants. If the burden then shifts'from proponent, the burden of proof is not always on proponent. These two decisions are, on their face, types of adjudications of weight. I had hoped that I might give heed in this court 'of first instance to both doctrines by attributing the primary meaning of the term “onus probandi” to the first class of cases and the secondary sense of that ambiguous term to the second class of cases. “Burden of proof,” onus probandi, is an equivocal term. It refers, primarily, to the obligation resting on a party who has the affirmative of an issue of fact to establish it by a preponderating weight of evidence, and, secondarily, to a duty to go forward with the evidence at a precise moment in a judicial proceeding. Thayer, Prelim. Treatise on Evid. 354, 364, 379; Doheny v. Lacy, 168 N. Y. 213, at page 220, 61 N. E. 255; Loder v. Whelpley, 111 N. Y. 239, at page 250, 18 N. E. 874; Baxter v. Abbott, 7 Gray (Mass.) 71, 83; Jones v. Gran. State Ins. Co., 90 Me. 40, 37 Atl. 326. If the different decisions on burden of
But a very plain intimation in the Matter of Will of Kindberg, 207 N. Y. 220, 100 N. E. 789, very lately decided by the Court of Appeals, makes it, I think, impossible to reconcile the adjudications. A late writer, in his useful compendium of the case law of evidence, well states that it is “a hopeless task to undertake to reconcile the decisions which relate to the burden of proof in respect to the probate of wills.” Jones, Ev. § 189. Professor Thayer, in his most admirable of all modern treatises on the true bases of the law of evidence, points to the root of this difficulty. Thayer, Prelim. Dissertation on Ev. 354 et seq.; Thayer’s Cases on Ev. 69.
In a proceeding to test the validity of the probate of a will, pursuant to section 2653a, Code of Civil Procedure, the statute regulates the burden of proof and the procedure. The statute prescribes that in that class of actions—
“the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity' of such will or codicil.”
It then proceeds to regulate the procedure on the trial of such actions. If has been generally supposed by the profession that the burden of proof in that class of actions rested on the contestant solely by virtue of the statute. Dobie v. Armstrong, 160 N. Y. 584, 590, 55 N. E. 302; Ivison v. Ivison, 80 App. Div. 599, 603, 80 N. Y. Supp. 1011; Mock v. Garson, 84 App. Div. 65, 67, 82 N. Y. Supp. 310; Heath v. Koch, 74 App. Div. 338, 77 N. Y. Supp. 513; Scott v. Barker, 129 App. Div. 241, 113 N. Y. Supp. 695.
The latest utterance of the Court of Appeals on burden of proof in probate matters.was made on an appeal from a judgment entered on an affirmance of the verdict of a jury on issues sent to the Supreme Court for trial. Matter of Will of Kindberg (December 31, 1912), 207 N. Y. 220, 100 N. E. 789. It was there said:
“Undue influence is an affirmative assault on the validity of a will, and the burden of proof does not shift, but remains on the party who asserts its existence. Tyler v. Gardiner. 35 N. Y. 559; Cudney v. Gudney, 68 N. Y. 148; Matter of Will of Martin, 98 N. Y. 193, 196.”
The serious question in my mind is whether the pronouncement of the Court of Appeals in the Matter of Will of Kindberg was intended to regulate the burden of proof in original proceeding to probate a will in the courts of the surrogates, or only on trials by jury. If it was intended to apply to probate proceedings, whenever a plea of undue influence is interposed in this court to a petition for probate, the burden of proof is on the party so asserting it. In this and other jurisdictions, as I shall attempt to show, it has been laid down that the burden of proof in probate proceedings is always on the proponent,
Before the decision in Matter of Will of Kindberg, I had, however, been somewhat inclined to think that when the statement was made in several cases of importance in this state, that the burden of proof rests, in a proceeding for probate, on him who asserts undue influence, it was meant to assert only that after factum of will is established the contestant asserting undue influence then has the onus of going forward with his proofs (Doheny v. Lacy, 168 N. Y. 213, 220, 61 N. E. 255), and not that the burden of proof, in its primary significance, did not always rest on the proponent of a will in the courts of the surrogates. Doubtless, after the contestant had completed his proofs, the proponent resumed and gave adminicular proofs in support of the probate. Hoyt v. Jackson, 2 Dem. Sur. 443, 446. But, then, onus probandi the whole case was again on proponent. Matter of Flansburgh, 82 Hun, 49, 50, 31 N. Y. Supp. 177; Howland v. Taylor, 53 N. Y. 627; Taylor’s Will Case, 10 Abb. Prac. (N. S.) 300. The reason why I was induced to think that the burden of proof, in its primary significance, in a probate cause rested always on the proponent I shall, proceed to state. These reasons were of three kinds: (1) Because statute and the state of the pleadings naturally placed the burden of proof on proponent. (2) Because the traditional practice in probate proceedings so placed it. (3) Because both reason and authority had sanctioned it.
The state of the pleadings in a proceeding for probate naturally placed the burden of proof, in its primary signification (or, in other words, the necessity of sustaining all the issues on the will by a preponderance of evidence), on a proponent. In order to entitle a proponent to a decree of probate, he must establish (1) due execution of a testamentary script, pursuant "to the statute of wills; (2) testamentary capacity; (3) freedom from restraint. Now, a plea
That the common or traditional law regulating the proceedings in the courts of the surrogates, in the absence of statutes, placed the burden of proof or weight of evidence on all the issues in a proceeding for probate on the proponent, there can be no doubt. If any change has been made in this state in the common law, it is by reason of later adjudications of authority in this state. The burden of proving undue influence in probate was carefully considered in a leading case in England by the Privy Council on appeal (Barry v. Butlin, 1 Curt. 637; s. c., 2 Moo. P. C. 480); and it was held that onus probandi in every case lies upon the party who propounds a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. Fulton v. Andrews, 7 Ho. L. Cas. 448, 461. This statement was expressly approved in this state in Crispell v. Dubois, 4 Barb. 393, 397, and again by that very distinguished surrogate, Mr. Rollins, in Hoyt v. Jackson, 2 Dem. Sur. 443, 446, and his judgment was afterwards affirmed by the Court of Appeals. 112 N. Y. 493, 20 N. E. 402. This point has, in substance, I think, been often since adjudicated, both here and elsewhere. Thayer’s Cas. Ev. 82,
That judicial reasoning and authority had sanctioned the proposition that the burden of proof in a probate cause rested always on proponents, I had formerly believed. When it was asserted by judges of great distinction that the burden of proving undue influence rested on contestants, I had supposed that the term» “burden of proof” was used in its secondary sense of proceeding with the evidence in a cause. In this sense, if no evidence is given by contestant, the proponent rests on his prima facie case, and the contestant fails. If evidence was given by contestant, the burden of evidence was then resumed by the proponents in both senses of the term, “onus probandi.” If we examine the parallel lines of apparently discordant authorities on this point, we will find that this is what might well have been meant by the statement in question. One of the earliest statements to the effect that the burden of proving undue influence rests on the party alleging it is in the year 1856. In Boyse v. Rossborough (6 Ho. L. Cas. 1, 49) the Lord Chancellor said:
“Where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it.”
This adjudication is often cited in our own courts. Matter of Green, 67 Hun, 527, 533, 22 N. Y. Supp. 1112. This decision was subsequently recognized in this state, and it is the starting point of the entire doctrine in probate law on -the burden of proving undue influence. It is apparent that in Boyse v. Rossborough the term “burden of proof” is used in the sense of a going forward with the proofs, because, if the proofs are in equilibrium, the proponent of a will does not, in England, necessarily succeed, even if the contestant fails. In such a case where the contestant’s proofs are in equilibrium, it is the duty of the probate judge to hold that his conscience is not satisfied with the proponent’s proofs that the will was tíie free and unrestrained act of a capable testator. Tyrrell v. Painton, [ 1894] Probate, 151, 156; Mortimer on Probate Law, 87. And such, I think, was the rule here. Howland v. Taylor, 53 N. Y. 627; Rollwagen v. Rollwagen, 63 N. Y. 504, 517; section 2627, Code Civ. Proc. This line of authority demonstrated conclusively, to my mind, that the burden of proof in a probate cause was al
Let us examine the authorities on this point a little further. The statement of the Lord Chancellor, in Boise v. Rossborough, was reiterated in Tyler v. Gardiner, 35 N. Y. 559, 594, and most obviously only in the secondary sense of the term indicated; for the majority opinion proceeds:
“When such evidence [of undue influence] is furnished, the burden of repelling the assumption to which it leads is east upon the party to whom the fraud is imputed.”
Can anything make it plainer that the court, in Tyler v. Gar-diner, intended by this language to hold only that the onus probandi on the whole issue of freedom from restraint and duress rests again where it always had rested in a probate proceeding in a court of probate, to wit, on the proponent? Yet this is the leading case on this point. Many of the later statements to the effect that on an issue of undue influence the burden of proof rests on those who assert it, though constantly made in the adjudications (Matter of Green, 67 Hun, 527, 531, 535, 22 N. Y. Supp. 1112; Matter of Will of Martin, 98 N. Y. 193, 196; Cudney v. Cudney, 68 N. Y. 148, generally cited to the same point, does not seem to refer at all to the proposition), do not negative the general rule in probate courts already noticed, viz., that the burden of proof on the whole cause rests on the proponent; and that it is the burden of going forward with the plea at the proper moment which is stated to rest on the contestant setting up a plea of undue influence.
After careful consideration I am obliged, however, to conclude that the statement in the decision in Matter of Will of Kindberg, to the effect “that undue influence is an affirmative assault on the validity of a will, and that the burden of proof does not shift, but remains on the party asserting it,” is deliberate and final; and that it is applicable to an original proceeding for probate in this court. Thus it is that in this state we have now on this point a domestic rule, which, while not always in precise accord with that prevailing in some other jurisdictions, is the one we must henceforth follow without discussion or cavil. The part of the decision in Matter of Kindberg which is of the greatest importance is that the burden of proof does not shift, but remains on the party - asserting undue influence. This was not the doctrine of Tyler v. Gardiner, which is entitled to be regarded as the initial case on this point. The present rule has been built up in substantially three cases, dating from 1866, two of which were by no means final in their statements or implications. These three brief statements have given us a rule of the most tremendous and far-reaching significance, and the door is now shut. To this rule I must defer in this cause. I do so the more willingly because of the great excellence and deserved renown of the high court which has established the rule, no doubt with wisdom and deliberation. To the Court of Appeals the welfare, peace, and dignity of this state owe a great debt.
“The case, then, is one where the testatrix had testamentary capacity, a present knowledge o£ the contents o£ the will, and where, at its execution, she was surrounded by all the guards which the statute has prescribed to-prevent fraud and imposition. A will executed under these eircumstancescan be avoided only by influence amounting to force or coercion, and proof' that it was obtained by this coercion. The burden of proving it is on the party who makes the application.”
The importance of this statement was apparent to the judges,, and, the precise language is quoted with great precision in Matter of Nelson, 97 App. Div. 213, 217, 89 N. Y. Supp. 865. The decision, in Matter of Will of Martin went a step farther than Tyler v. Gardiner. But it still left open the question whether the burden shifted to proponent. If we now add to the doctrine stated in the Will, of Martin the statement in Matter of Kindberg, that this “burden, of proof does not shift,” we have not only a plain working rule, but,, to some extent, a precise evaluation of the proofs in cases of contested wills. According to this rule it would seem at first that if contestant’s proof fail the decree must in every instance be for the will. But must it be for the will in every such case? This is the-most important question of all. I have not seen the precise question directly answered in this state.
Let the decree for probate be presented for my signature.
