5 N.Y.S. 636 | N.Y. Sup. Ct. | 1889
Upon the offer for probate of the will in question the appellants objected to its probate, upon the grounds that the paper propounded as the last will and testament of Daniel R. Lvddy, deceased, was not his last will and testament; that the deceased did not subscribe to said paper in the presence of each or both of the alleged attesting witnesses thereto, nor acknowledge the subscription of said paper writing, nor declare the same as and for his last will and testament; that each of the attesting witnesses did not sign his or their name as a witness or witnesses thereto at the end of said propounded will at the request of the deceased; that at the time of the execution of said propounded will the deceased did not have testamentary capacity to make the same; and that it was procured, or caused to be procured, by fraud and conspiracy to defraud, and undue influence practiced upon said deceased by his wife, Mary A. Lyddy, the proponent, and others, and that the said propounded will is an unnatural will, in any event.
There is another erroneous view which it seems to us has been indulged in upon the part of the contestants, and that is as to what was necessary to call upon the general term to reverse the decree of the surrogate admitting the will to probate. It is claimed that, if a doubt as regards the facts exists in the minds of the appellate court, they are therefore called upon to reverse the decree and have the questions involved passed upon by the proper tribunal for that purpose, namely, a jury. Although a doubt might perhaps justify such action, yet the existence of simply a doubt by no means calls upon the general term to take such action; and, where the surrogate has had the benefit of hearing the oral testimony of the witnesses, it seems to us that there should be more than a doubt arising from the perusal of the testimony to justify a reversal; and that, although it is not the duty of the court to strain after probate, nor in any case to grant it where grave doubts remain unremoved and great difficulties oppose themselves to so doing, where simply a doubt exists, it seems to us, it is the duty of the court to affirm the action of the surrogate. It is necessary, as was laid down in the case of Delafield v. Parish, 25 N. Y. 35, to which the contestants refer, that grave doubts should remain unremoved and great difficulties oppose themselves to the upholding of the decree before a reversal should be made by the general term. Applying these rules to the facts disclosed by the testimony, is there anything upon this evidence which raises grave doubts as to the correctness of the decision of the surrogate, or great difficulties in upholding such decision? After a perusal of the evidence herein, and a comparison of the record with the points made by the contestants, we fail to find such grave doubts or such great difficulties. First, in regard to the execution of the will, it is claimed that the evidence of the witnesses who swore in regard to the fact of its execution is entirely unreliable, and not worthy of credit, although uncontradicted, because of the contradictions contained in the evidence of these witnesses themselves as to some of the
The next objection is that the testator did not possess testamentary capacity, and we are referred to the testimony of the nurse, Sister Regina, Dr. Hamilton, and the brothers of the testator, in support of this objection. As far as the testimony of Dr. Hamilton is concerned, it seems to us that it is entitled to no consideration, because the hypothetical questions which were put to him were not justified by the evidence. The assumption throughout his examination was that the witness whose evidence it was claimed formed the basis of the questions put to him intended to convey the impression by her testimony that at the time she left the testator, on the morning of the day upon which the will was executed, the testator was too weak to carry on any conversation. It is true that she made use of that language in her testimony, but immediately after she qualified it, and when the interrogatory was repeated, “Do you think he was able to carry on any conversation?” she answered, “I do not know. I cannot tell, because I did not try.” And it was further assumed that the delirium under which he was suffering during the night continued until the time the witness left, at half past 9 in the morning, the will being executed within an hour or so thereafter, whereas the testimony shows that in answer to the question whether he was delirious the whole night, until 6 o’clock in the morning, the answer of the witness was, “Hot all the time. He was not delirious all
The objection as to fraud, undue influence, and duress seems also to be equally untenable. Undue influence, fraud, and duress must be proven as any other part of the contestant’s case. The mere fact of proof that a wife has exercised influence upon her husband in relation to the disposition of his property, by will or otherwise, in no way supports the proposition that undue influence has been exercised. Influence may always be exercised, and it is proper that it should be exercised; but it only becomes improper when it becomes undue, and it becomes undue when it substitutes the will of the person exercising the influence for the will of the person who is to do the act. Arguments, persuasions, and suggestions may be made, so long as the person who is to do the act can weigh the suggestion and has the ability, if so minded, to resist the influence. Then there is nothing undue in regard to it, although he may yield to it. And even if there was proof in this case that the proponent had requested the testator to make this will in her favor, and urged him to do it, it would have been no ground for finding that the influence which she exercised in the making of the will was such as to impeach the integrity of the instrument; and it would seem that the relations of the parties go to show beyond all question that no such influence was necessary in order that this will should be executed.
It appears that large portions of property were held by the testator and his wife as joint tenants. There seems to have been an intention between them
It is claimed as a badge of fraud that a stranger was sent for for the purpose of drawing this will, and although these brothers were in the house, and one of them, at least, was a lawyer, and able to perform the professional duties necessary for the execution of the will. It seems that when the testator desired to have a will drafted he did not go to his brother, but preferred a stranger, and it would appear, therefore, in not employing the brother, his wife was acting in accordance with her husband’s own preferences. If he did not go to his brother when he wanted his will drawn, preferring to have some stranger, as he naturally would under the circumstances, the fact that the wife acted in precisely the same way constitutes no great badge of fraud. It seems to be needless to discuss the evidence further, because within the limits of an opinion it is impossible to refer to the same in detail, and we can only in a general way state the impressions which a reading of the evidence has made upon our minds. We think from the evidence that no grave doubts, such as would justify this court in reversing the decision of the surrogate, exist. Our attention has been called to various exceptions to evidence, especially to the questions put to the subscribing witnesses as to their opinions as. to the competency and sanity of the testator. It is undoubtedly true, the general rule is that witnesses must speak of facts alone, and may not draw opinions, conclusions, or inferences. But to this rule there are exceptions, and one is that the subscribing witness to a will may speak of the sanity of the testator at the time of executing the will, and also to the condition of the testator at the time, or that he was not under restraint. The position of the subscribing witnesses in this respect is well recognized as entirely different from that of other persons, and their opinions upon these subjects are received precisely the same as those of experts. Hone of the other exceptions seem to call for special mention, as none of them are of sufficient importance, even if well taken, to justify a reversal of the decree", as the evidence admitted under the objections was not of such a character as necessarily to prejudice the contestants. The decree should be affirmed, with costs.
Cullen, J., concurs.