31 N.Y.S. 689 | N.Y. Sup. Ct. | 1894
By the terms of her propounded will, bearing date December 2G, 1892, Almira Pike, having directed the payment of her debts and funeral expenses, and the payment to the city of Rochester of a suitable sum to keep her burial place in repair, gave all the rest, residue, and remainder of her property and estate, real and personal, to Sophia T. Birdsall, upon the condition that she remained with and attended upon the decedent during the life of the latter, and nominated her to be the executrix of the will. In the proceeding instituted by the petition of Mrs. Birdsall for its probate, Charles H. Newton and Anna E. Forbush appeared as contestants. The probate of the instrument as the will of the decedent was denied upon the ground that she was not competent to make a will, and that she was unduly influenced by Sophia T. Birdsall to make it. The will, in manner and form, was duly executed, and had prima facie support as such by the evidence of the subscribing witnesses. The questions arising upon the evidence introduced at the hearing were those of fact, having relation to the capacity of the decedent, and to the causes by which the making of the instrument by her was induced. She was a childless widow, 82 years of age, and had resided for many years in the city of Rochester. For some years prior to and until in November, 1892, she had been attended by a Miss Scott, who, then having become insane, was taken to an asylum. Thereupon the proponent, through a person acquainted with her, was recommended and introduced to the decedent. This was about the middle of November, 1892. The will was made the 2Gth of December following, and Mrs. Pike died January 28, 1893.
ft may be observed that, while the contestants were her heirs and next of kin, she never had seen or known them. They resided in the state of Massachusetts, in which state she, in her early life, had lived; and, so far as appears, she had no communication with
It appears by the record that it contains all the evidence given upon the hearing, and therefore the questions of fact are here for review, and to be considered de novo. Code, § 2586. We are not entirely satisfied with the conclusion reached by the surrogate upon the facts, and as to what the result upon the evidence should be is a question of doubt. The matter should be sent to a jury. Howland v. Taylor, 53 N. Y. 627; In re Lansing (Sup.) 2 N. Y. Supp. 117; Van Orman v. Van Orman (Sup.) 11 N. Y. Supp. 931. The decree of the surrogate should therefore be reversed, with costs of