197 A.D. 865 | N.Y. App. Div. | 1921
The decedent, a colored woman, died in the borough of Brooklyn on July 10, 1919, at the age of over seventy years. Her exact age appears to have been unknown, but her apparent age was at least seventy. She left property, real and personal, of the value of about $30,000. She was a widow with no child or relative nearer than nieces. Apparently somewhat late in life she married a widower with one child, a daughter, with whom she seems not to have harmonized. The husband predeceased her on December 9, 1917. They had made mutual wills, and by his will she acquired his entire estate,
Dr. McCoy was an entire stranger to her, and visited her first about noon on July fifth. He found her in bed and
It was proven by her old pastor and physician, and by others of her old friends, that she had told them that she intended to leave in her will bequests to the church of which she had long been an official and evidently a devout member, and also to the Old Folks Home, the Home for the Colored Aged, and the Young Women’s Christian Association. In the making of the will no inquiry was addressed to her to ascertain if she wanted to leave anything to any of those institutions, nor were they at all called to her attention. While she had had the contest with her husband’s daughter over his will, she had afterwards told several of her friends that she still meant to leave something to the daughter in her will, as her husband had wished her to do so. The daughter was in no way called to her attention during the making of the will. Evidently Gilbert’s list did not contain the name of the daughter or of any of those institutions. It is perhaps a significant fact that Mr. Chase threw away or destroyed the list which Gilbert gave him. Gilbert was no relation of Mrs. Taylor, but was a cousin by marriage of one of her grandnieces; but he had aided her in her litigations.
It will, I think, be conceded by any one that the case, even as thus presented for the proponent, was a most remarkable one — at least in all my experience at the bar and upon the bench I have never read of anything like it outside of fiction. The only precedent for such will making which has come to my attention is an incident given in Dumas’ novel entitled “ The Count of Monte Cristo,” volume 2, chapter 59. In that, however, the' notary conducting the proceeding first applied to the paralytic the test as to knowledge of property, and even required the evidences of property to be produced, and also there the making was by a single sign, the movement of the eyelids; whereas here the doctor and the lawyer presiding made no such test, and required from the semi-conscious
For the contestants there was evidence, given by the former doctor, Jacobs, and by other old friends who visited her each day from the fourth to the tenth inclusive, that she was practically unconscious, unable to recognize them; and several of the old friends testified to her previous declarations of the said other testamentary intentions.
In that situation of the case it is plain that the jury needed to have in the charge, not only a clear statement of the general rules established for determining the factum of a will, but also at least a precise and definite statement of the particular issues presented by the evidence in this particular and extraordinary case. A careful perusal of the charge reveals that, while it stated quite correctly those general rules, it made no reference whatever to the facts of this case. It dealt entirely with generalities and would be just as applicable to any other will contest as to this particular one. Thus, in instructing the jury as to testing her intelligence, that is, her .state of mind when she made the will, the charge said that they might regard her “ speech and conduct ” at the time, as no doubt the learned surrogate had found it stated in several and perhaps many reported opinions of the highest court; although in this particular case all the evidence agreed that the testatrix was absolutely speechless. Later the reference to speech as a material factor was repeated.
The charge also was quite unsatisfactory in its dealing with the expert medical testimony. Its final summary upon that topic was, “ If the question [meaning the hypothetical one] omitted to assume as true any fact which you shall find to have had existed in the person of the decedent and which you shall believe to have been a condition or symptom material to your conclusion as to her testamentary capacity when she signed the will, it will be your duty to disregard the physician’s answer to that question; ” but no attempt was made to point out to the jury what “ conditions or symptoms ” they should regard as material. Indeed they were instructed to disregard entirely such testimony if the hypothetical question which
The charge properly defined the three well-known and established elements of testamentary capacity, viz., (a) intelligence or ability to keep in mind the property one has to dispose of; (b) ability to know or recall one’s relations to the natusal objects of one’s bounty, that is, their natural claims upon him; and (c) the effect of the testamentary dispositions being made, for example that they will give the property thus and so to those specified, and incidentally cut off those not specified.
As to the issue of undue influence, the charge also was correct in its general terms, both as to the burden of proof being upon the contestants and as to the general fact neces'sary to be established in order to prove the allegation, and even that the proof may be entirely circumstantial; but it utterly failed in any way to discuss the facts in evidence bearing upon that problem. For instance, it in no way referred to the significant fact of Gilbert’s own participation in the factum of the will.
Aside from the general extraordinary situation respecting the making of this alleged will, four things appear to me to be notable. The first is that there was no attempt whatever made to test Mrs. Taylor’s intelligence as to the first of the specifications above stated, viz., her knowledge of her property ■even generally. The second is that several of the natural beneficiaries according to her often declared intentions, namely, the church and the other mentioned institutions and her husband’s daughter, were not in any way suggested to her. Estranged as she evidently was from her own relatives, who were all quite distant in degree, or slightly regardful of them so that, by the appropriate signs, she declared that she did not wish to give anything to any of them, nothing could have been more natural than that she should wish to give something to the church to which she was, after the manner of her race, greatly devoted and of which she and her husband before her had been officials, and that she should wish to give something
I "find myself, therefore, compelled to conclude that the finding that she possessed testamentary capacity was against the weight of the evidence, at least in this, that the evidence did not warrant a finding that she was able, unaided by the suggestions of others, to recall the natural objects of her bounty, or that she was so aided. In other words, the weight of the evidence indicates that the suggestions made did not serve to recall to her mind those objects fully, and fairly.
I also conclude that the finding that the will was not proven to have been executed through undue influence was against the weight of the evidence, in that the evidence indicated that those natural objects of her bounty were kept out of her mind by the contrivance of Gilbert in preparing his list. Undue influence may be established by circumstantial proof, and to my mind the circumstances proven point unerringly to intentional suppression upon his part. He had aided her in her litigations, and in all reasonable probability knew well all her testamentary intentions as to those institutions and her stepdaughter. Certainly he had the means at immediate hand for ascertaining those intentions from her friends present in the house. That he made no effort to do so is evident from the fact that the entire business of the list was concluded between Chase and him in the hall outside the door of Mrs. Taylor’s room at one meeting.
It would be a plain miscarriage of justice if a will secured from a dying person in such manner should be sustained,. Moreover, at the trial had the jury were utterly unaided by the charge in dealing with the most extraordinary facts presented by the proofs, and they could have gained from it no idea of their true import or weight as affecting the issues involved. At a jury trial the duty of the judge is not at all discharged by simply giving to the jury an essay stating in language however technically correct the general principles of the kind of action being tried, such as contract, conversion, personal injury, or what not, without making the least attempt to apply those principles to the facts of the particular case as the jury may find them proven. Such a charge can serve only to confuse a jury, or at the best to make their verdict dependent upon the chance of their sense of natural justice in the case. The charge here was of that most general character. It was not excepted to, and, therefore, does not constitute error in law; but it was so -inept as, in my judgment at least, to constitute substantial error in fact so as of itself
Therefore, I advise that the decree appealed from be reversed, and a new trial ordered, with costs to abide the event.
Blackmar, P. J., Rich, Kelly and Manning, JJ., concur.
Decree of the Surrogate’s Court of Kings county reversed, and a new trial ordered in said court, with costs to abide the event.