1 Pow. Surr. 516 | N.Y. Sur. Ct. | 1893
The paper propounded as the will of the decedent, Mrs. Lisinka Hall, was executed in the evening of December 20, 1892. By it she bequeathed $1,000 and a gold watch belonging to her late husband to her- nephew William L. Hall, and $1,000 to be expended by her executor for a window in the Presbyterian church at North East, Pa., as a. memorial of her late husband. She devised the house and lot No. 83 East Tenth street, in this city, to her nephew Elmer E. Boss, and directed that the residue of her estate be converted into money, and the proceeds be divided equally among her nieces Mrs. Loomis, Mrs. Buckle, Mrs. Force and Mrs. Boss. The legatees designated as nephews and nieces were not of kin to Mrs. Hall. They were a nephew and nieces of her husband, except Boss, who was the husband of one of the nieces. The paper names E. Van Ness Heermance, an attorney, sole executor, and revokes all former wills. The house and lot devised are leasehold property. An answer to the petition for probate was filed March 25, 1893, by Joseph C. Hurley and Mark W. Potter, the executors named, one in a will executed November 18, 1890, and both in a codicil thereto executed October 14, 1892. It alleges that the execution of the paper propounded was not the free, unconstrained and voluntary act of the decedent, and that she was at that time mentally incompetent to make a will. In the determination of the issues thus raised it is necessary to consider the testimony of persons present .at the execution of the paper, the: relation of the decedent to the various parties, her age, her personal characteristics, the condition and extent of her estate, her surroundings, and the probabilities of the paper representing her real wishes. The first witness examined was Benjamin F. Eberts, a subscribing witness. He states that on the evening of December 20, 1892, he and Theodore P. Bucher, another subscribing witness, were in the reception room of Mrs. Hall’s house, No. 83 East Tenth street; that Heermance, the attorney,
If, at the time of the execution of the1 paper, Mrs. Hall knew its contents, a clear, prwna facie case has been made out, to sustain probate. But contestants’ counsel claim that the testimony shows that Mrs. Hall had not at the time been told the contents ■of the paper, or, if she had, she did not have the mental capacity to execute a valid will. Under section 835 of the Code, Heermance was not a competent Avitness; but, as no objection was made to his testimony, he Avas examined. In determining the controversy, however, I shall gave no consideration to his eAÚdence in respect to any interview with the Avitness and decedent respecting instructions for, and adAÚce given with reference to, the preparation of the Avill, or statements involving communications not made in presence of other witnesses.
To sustain the probate of a will, it must be shown to' the satisfaction of the trial court, by direct proof, or as a legal inference from the evidence, that the testator was competent to make it, and knew its contents. There is abundant authority in the decisions of the courts, both in England and in this country, that in the case of a competent testator, where there are no circumstances shoAving want of good faith, it is not necessary to prove that the testator gave the instructions for the will, that he read it, that it was read to him, or that he Avas made acquainted with its contents at the time of execution. In Pettes v. Bingham, 10 N. H. 514, it was held that a testator is presumed to have knowledge of the Avill he has executed; and if it is alleged that he has not knoAAdedge, or that he was induced to execute it by misrepresentation, the burden of proof is Avith those who make the objection. In Carr v. McCamm, 1 Dev. & B. 276, the court
Under the principles of law thus laid down, I must hold, presumptively, and without reference to the extrinsic evidence which I shall hereafter advert to, that Mrs. Hall knew the contents of the instrument at the time of its execution. But it is claimed by the contestant that this- presumption is negatived by evidence of the existence of fraud and undue influence. This makes it necessary to consider the evidence adduced. Mrs. Hall was 71 years of age, and had been a widow for 10 years. She Was by birth a Russian, but had been a long time away from’ her
Mrs. Hall’s mental condition on the night of the 20th of December thus becomes a question of the first importance. I will first consider whether the contestants have adduced affirmative proofs to overcome the testimony of the subscribing witnesses. On that occasion, Mrs. Hall made the simple response, “Yes,” to the questions put to her respecting the execution of the will. Such response, in connection with the questions, constituted a sufficient declaration of the character of the paper, and a sufficient request for the witnesses to1 attest it. Each of the subscribing witnesses, when first examined, had not heard the testimony of the others. I was very favorably impressed with the testimony of the young man Eberts. He had come to reside in the house on the 15th of December, the very day on which the memorandum written by Miss Caughey was signed, and he seems to have been asked to be a witness because of his accidental presence on that occasion. He states that he had heard nothing about the execution of a will until that evening. Ho attempt has been made to impeach his testimony, and the only fact that would suggest a possible bias is that he was a friend of Eoss, one of the legatees. If there was a conspiracy, as claimed by the contestants, the conspirators would not be likely to take in a young man just of age, a stranger to some, and only a recent acquaintance of others, except Eoss. He was the first