1 Misc. 43 | N.Y. Sur. Ct. | 1892
On the 9th day of April, 1891, Jacob Bowman, a descendant of one of the oldest families of this county, and a resident of it all his life, at the age of 71 years, died at his home in the town of Chemung. Previous to his death, and on the 20th day of June, 1889, he had made and executed a last will and testament- which was presented to' the surrogate of this county for probate, and admitted to probate on the 19th day of "November, 1891. On the 11th day of March, 1892, Byman Bowman, a nephew of said deceased, and Phebe Goodwin, a niece, filed a petition in this court for the revocation of the decree admitting said will to probate, alleging thgt, at the time of its execution, the deceased was not competent to make a will, and that the same was procured by fraud, imposition, coercion and undue influence practiced and exercised upon the said
The law is well settled that, in order to avoid a will upon the ground of undue influence, the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of the property the testator would not have made if left freely to act his own pleasure; and this must be proved like any other fact; it must not be guessed at. The influence -or importunity must be such as to deprive the testator at the time of the free exercise of his will, whereby the instrument becomes the will of another man, rather than that of the testator. Such undue influence must have been exercised in respect to the very act, and the act must be proved, and" will not be in
Keeping in view the principles laid down by the courts for the determination of questions of fact arising in contests of this character as above cited, a brief resume of the evidence of the contestants bearing upon this question is necessary for its determination. The deceased, about six months before the time of the execution of this will, had been attacked with inflammatory rheumatism, which the evidence discloses 'was principally confined to his lower limbs; and which, to a greater or less extent, deprived him of that activity of body which he had heretofore uniformly possessed. At times tire disease was so violent that it confined him to his house, and subjected him to severe physical pain and suffering. The physicians who attended him previous and subsequent to the execution of this will were all produced and sworn in this proceeding. They uniformly testify that they saw no evidences of mental unsoundness; that, so far as their observation and knowledge extends, with the exception of this physical incapacity, he was in the full possession of the same strength of character and mental attainments that they had heretofore noticed and observed in him. It appears from their evidence, and from the evidence of some of the attendants who took care of the deceased while suffering from this malady, that for the purpose of alleviating the pain which he endured, medicines were administered to him, consisting sometimes of morphine; and that this medicine was prescribed and furnished by Dr. Everett, who is a physician, a nephew of the decedent, and one of the residuary legatees and executors under this will.
It is insisted, however, by the contestants, that for a time previous to the execution of this will—what length of time, how