65 N.Y.S. 879 | N.Y. App. Div. | 1900
Lead Opinion
This appeal is taken from the decree of the surrogate refusing to admit to probate the will of Rachel L. Kennedy which was pro? pounded as a lost will. The statute gives to the Surrogate’s Court jurisdiction to admit a lost or destroyed will to probate only in a case where judgment establishing the will could be rendered in the Supreme Court. (Code Civ. Proc. § 2621.) The authority of the Supreme Court to enter judgment in such a case is found in section 1865- of the Code, which expressly prescribes that a plaintiff who propounds such a will is not entitled to judgment unless the will was in existence at the time of the testator’s death or. was fraudulently destroyed in his lifetime.
The question simply is whether there was evidence from which it might be inferred that the will was in existence at the time of the death of Miss Kennedy. It appears that it was executed in March, 1895. It remained in Miss Kennedy’s possession from that time, and the paper itself was seen in her possession in January, 1898. It was kept in an envelope upon which were indorsed the words, “ will of Rachel L. Kennedy.” As late as the lltli of June, 1898, the envelope containing the will, a codicil upon which was indorsed, “ codicil of Rachel L. Kennedy,” and a letter addressed to her executors, were seen in a cedar closet off Miss Kennedy’s room in the place where she was accustomed to keep her papers, strapped
It is unnecessary here to consider the question whether the will might have been fraudulently destroyed in her lifetime, because there is nothing in the case from which any such fact can be inferred. So there remains simply the question whether the proponents produced sufficient evidence to warrant the surrogate in coming to the conclusion that the will was in existence at the time of the death of Miss Kennedy at York Cliffs on the 31st of July, 1898. Upon this question the evidence is exceedingly meagre. It appears that a day or so before Miss Kennedy left for York Cliffs she took some papers out of a tin box in the cedar closet and put them into a bag in her trunk. The bag itself was locked as well as the trunk, and she kept the keys of both. The bag was afterwards returned to New York and given to Van Rensselaer Kennedy, but there is no evidence that the papers which were in the bag when it was taken to York Cliffs were the same which were in it when it Avas brought back. Perhaps there is no inference that the will was in the bag at all, but whether it was or not the inference is not in favor of the proponents. There is no direct evidence as to what became of this will after June 11, 1898. Nor is there any evidence which fairly raises the presumption that the will being in existence at the time of the death of the testatrix Avas destroyed by any one afterwards. It is quite true that Van Rensselaer Kennedy and his secretary Duval had opportunities to destroy the will had either of them seen fit to do so, but that fact of itself is no evidence to establish a fraudulent destruction of the will. (Collyer v. Collyer, 110 N. Y. 481.) It Avould not be sufficient for that purpose even if Yan Rensselaer Kennedy had been interested in its destruction, but it is difficult to see how he had any such interest. The legacies under the will outside of the family amounted to about $215,000. A legacy of $100,000 Avas also given to the
The surrogate excluded certain testimony which it is claimed would have tended to show, if admitted, that Miss Kennedy did not destroy her will, but, on the contrary, supposed that it was in existence down to the time that she left for York Cliffs; and it is claimed by the proponents that if this evidence had been admitted it would have established by almost necessary inference not only that Miss Kennedy intended to die testate, but that she supposed that her will was in existence. This evidence was all excluded by the surrogate, and if it was competent-it is quite'clear that it might have led him to a different conclusion from the one he reached, and, therefore, it is necessary to determine whether the evidence should have been received and considered by him.
The proponents offered to show by Mrs. Pistor, a competent witness, that the day before Miss Kennedy started for York Cliffs she told her what she had done with certain property referred to in her will and what provision she had made for Alethea Platt, the sister of the witness. That evidence was objected to, and the exception to that ruling raises clearly the point made by the proponents: and the question is whether declarations made by the testatrix shortly before her death from which it could be inferred that her will was then in existence and that she intended to abide by the provisions
In England, in the cáse of Sugden v. Lord St. Leonards (L. R. [1 Prob. Div.] 224), evidence of this nature was admitted, but so far as I can discover this case stands alone in that country and there are not a few dicta and other judgments from which it can be inferred that evidence of that nature is not considered competent upon principle. The conclusion which I have reached is that such evidence is not competent and that the surrogate did not err in rejecting it. Upon the whole case, therefore, the decree of the surrogate must be affirmed, with costs.
Yan Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
On the 19th day of March, 1895, Rachel Lenox Kennedy, the decedent, executed a last will and testament which had been carefully prepared by her legal adviser, and which disposed of all her property. On the 7th of November, 1897, she executed a codicil to this will by which she made a few additional legacies and reaffirmed the will. In a letter to her attorney in answer to a letter inclosing the codicil, she said: “ Your letter with paper enclosed was received this evening & I am much obliged to you for sending it to me so promptly, it is exactly what I want & I have nothing to suggest.” Subsequent to sending this letter she executed the codicil, and the will and codicil were in existence in the early
I can see no distinction between these declarations offered to be proved by the proponent and the other written and verbal declarations of the decedent which were admitted in evidence. There can
The intent and purpose of the testator thus become a material subject of inquiry. It is conceded that these declarations would be competent when accompanying the act which destroyed or obliterated the instrument, as part of the res gestee, but there was no evidence of the time when or the circumstances under which this will was destroyed. There was a presumption that such will was, at
In the case now before us, the question was whether or not this decedent had destroyed her will with intent to revoke it; and it seems to me that within this rule any act or declaration of the decedent which tended to prove a condition of mind, or an intention inconsistent with the destruction of the will, with intent to
There seems to be no dispute but that the rule in England and in the other States justifies the admission of this testimony. In England it would seem that the rule is well settled. In the leading case of Sugden v. Lord St. Leonards (L. R. [1 Prob. Div.] 154) declarations of the testator in relation to his will were admitted in evidence. It was claimed by counsel for the defendant that these declarations were not competent to prove the contents of the will, but it does not appear that their admissibility as evidence was questioned. In that case great weight was given to the declarations of the testator upon the question as to the revocation of the will, and the only tioubt expressed by Lord Justice Hellish was in regard to the competency of the declarations of the testator to prove the contents of the will.
In Woodward v. Goulstone (L. R. [11 App. Cas.] 469) Lord Herschell, in the House of Lords, doubts the correctness of the ruling in Sugden v. Lord St. Leonards ; but it is quite evident from his remark that he referred to the question raised by Lord Justice Hellish as to the competency of the declarations of the testator for the purpose of proving the contents of the will; and there can be no doubt, I think, but that it has been the universal practice in England to admit the declarations of a decedent as evidence upon the question
In neither of those cases was the question involved in the decision. Dan v. Brown (supra) was an action for partition, the defendant relying upon the proof of a lost will. The defendant had a verdict, and on appeal to the Supreme Court the verdict was set aside upon the ground that the loss of the will was not sufficiently proved to warrant the introduction of secondary evidence of its contents. The court in discussing the question as to the proof of the revocation of the will, incidentally remarked: “ The execution of the will being established, the next question is whether there was any evidence that it was cancelled. On this point I lay no stress upon the declarations of the testator. They were made long after the execution of the will, and shortly before his death. They are not evidence, unless they relate to the res gestee, or to an act done; as where, by mistake, the will is torn or thrown into the fire. The declarations of the testator are, in such cases, evidence, where they show the quo conimo,” but the case was decided upon the other ground. The question upon the same will was again before the Supreme Court in the case of Jackson ex dem. Brown v. Betts (supra). There the plaintiff had been nonsuited, the Circuit Court holding that, upon the proof, parol evidence of the contents of the will was inadmissible, but a new trial was granted upon the ground that the court should have admitted such evidence. In the course of the opinion, Sutherland, J., remarked that the “ declarations of the testator during his last sickness, as to the existence of his will, and the place where it would be found, were incompetent evidence, and
The plaintiff offered to prove that the day before the testator was taken sick he called upon Lockwood and requested him to draw a codicil to his will. This evidence was objected to, but admitted. Lockwood testified that the testator applied to him to draw a codicil, but it was not done. The will was not produced. It is not material in the decision of this cause, whether Lockwood's testimony was competent or not; for it will be seen in the view taken, that the will was sufficiently proved independent of this evidence, and did not require its support.” From this it must appear that it was not considered that the former decision had settled the question, as declarations of the deceased were admitted on the trial. Upon appeal to the Court of Errors (reported in 6 Wend. 173), the chancellor, in ordering a new trial, said : “ It is to be regretted that the question as to the admissibility of the declarations of the testator, to repel or to confirm the presumption that the will had been destroyed by him, is not in a situation to be examined and decided by this court before the new trial takes place. The supreme court on a former occasion (6 Cowen's Rep. 382) decided that the circuit judge had correctly rejected evidence of the declarations of the testator, in his last sickness, recognizing the then existence of the will, and directing as to the place where it might be found. As that question could not be raised or argued in this canse, I have not examined the subject sufficiently to have made up a definite opinion thereon; and probably I ought not now to express such opinion, even if I had no doubts on the subject. I will, therefore, only say that, in the investigation of the other questions in this cause, I have necessarily been compelled to look into this subject so far as to see there is sufficient doubt as to the correctness of the decision of the supreme court on that point to authorize
The next case to which attention should be called is Knapp v. Knapp (10 N. Y. 276). There the declarations of the deceased were admitted apparently without objection. The Supreme Court held that the evidence was not sufficient to justify a finding that the will was in existence at the time of the death of the decedent, and upon an appeal to the Court of Appeals that decision was affirmed; but no doubt was expressed upon the competency of the testimony. In Waterman v. Whitmey (11 N. Y. 157) the question was as to the testamentary capacity óf the testator, and the court there held that declarations of the testator were competent upon that question, and as such declarations had been excluded, reversed the judgment. Judge Selden, in the discussion of the question as to the admissibility of declarations of the deceased, classified them into three groups: First, those offered to show a revocation of a will admitted to have been once valid; second, to impeach the validity of a will for duress, or on account of some fraud or imposition practiced upon the testator, or for some other cause not involving his mental condition, and third, to show the mental incapacity of the testator, or that the will was procured by undue influence. And he came to the conclusion that declarations of the testator were not admissible to show a revocation of a will admitted to have been once valid. That question-, however, was not before the court for consideration and was not involved in the decision, and the attention of the court was not drawn to the question presented in this case, viz., “ the
In Matter of Marsh (45 Hun, 108) the same question was examined by Judge Bradley, in delivering the opinion of the General Term of the Supreme Courtthe decisions in this State were reviewed, and he came to the conclusion that such declarations were admissible to prove the intent of the testator. The same question was before Surrogate Rollins in the case of Hamersley v. Lockman (2 Dem. 524) where .lie came to the conclusion that such declarations were not competent. In Collyer v. Collyer (110 N. Y. 481) the declarations of the deceased seem to have been proved, both by the proponent and the contestant, and it was held that the evidence was not sufficient to justify the probate of the will. The only notice in the opinion as to the competency of these declarations was : “ As the evidence on the part of the petitioner wholly failed to make out his case, he was not harmed by any of the evidence offered and received on behalf of the contestants, to which he makes objections, and such objections need not, therefore, be considered.”
I have now called attention to all the cases that appear to have discussed the question in this State, and think it clear" that in no case was the question directly presented to the court, except in Matter of Marsh and Hamersley v. Lockman (supra), and in no case has the question been finally determined by an adjudication binding upon us. In this state of the authorities and considering the universal practice in the other States and in England, and believing as I do that this testimony is competent upon the question of the intent of the deceased, I do not concur with Mr. Justice RtmsEY.
Decree affirmed, with costs.