60 N.Y.S. 137 | N.Y. App. Div. | 1899
No question is raised in this proceeding in respect to the validity of the will of Emeline Gallup, which was executed on September 1, 1893. The contest relates solely to the codicil, executed about five years later, on August 6, 1898, when the decedent, was in the ninetieth year of her age. She died in less than three'weeks after the execution of this codicil.
By the will, after directing the payment of her debts and funeral expenses and bequeathing $300 to Greenwood Cemetery, the testatrix in the 3d clause devised and bequeathed the residue of her estate to Robert Wilson, residing at No. 329 Greene avenue in the
The codicil in question here is alleged to have been executed a month and.six days after Mr. Wilson’s death. After referring to the execution of the will dated September 1, 1893, it provides as follows: *
“ Robert Wilson in my said will named having died, I do hereby give, devise and bequeath all the rest, residue and remainder of my ■estate in the third clause of said will mentioned unto Lauren Red-field, Counsellor at Law, of the Borough of Manhattan in the city -of New York, absolutely, to be by him accepted and received as full compensation for any and all services by him rendered and to, be rendered to me in my lifetime and in the settlement of my estate after my dec.ease; and I nominate apd appoint the said Lauren Red-field the sole executor of my said will. In all other respects I confirm and republish my said will.”
The estate of the testatrix amounted to between $13,000 and $14,000.
The effect of the codicil, if valid, is to give almost all of this to Mr. Redfield, who does not appear to have been known at all to Mrs. Gallup during the lifetime of Mr. Robert Wilson, the previous residuary legatee, and who is not shown ever to have rendered any services whatever to the lady, unless it was a service to draw a codicil by which he himself acquired all her property, with the trifling exception of a legacy of $300 to Greenwood.
The circumstances under which the codicil was executed were peculiar, even as described by the witnesses for the proponent.
One of' these witnesses was Mr. William D. Bartles, a friend of Mr. Redfield’s. The other was Dr. John W. Barlow, a physician living in the same house with Mr. Bartles. Neither of these gentlemen had ever seen Mrs. Gallup until the 6th of August, 1898. Mr. Bartles tells, us that Mr. Redfield showed him a letter saying that Mrs. Gallup v?as ill, and asked him if he could recommend a doctor
The testimony of Mr. Bartles gives substantially the same account of the execution of the codicil. The only other person present,, beside the testatrix, the two newly-introduced witnesses and the
The case does not afford us much light in reference to the relations between the testatrix and the members of her family or other persons who might naturally be the objects of her bounty. According to Mr. Redfield’s petition for probate she- had a brother and two-nephews residing at Troy, N. Y., a niece residing at Poughkeepsie, three nieces living in Michigan ; and her only other relatives were a granddaughter of a deceased sister and the child of a deceased, nephew, whose residences have not been ascertained. The contestants in the present proceedings are the Troy nephews and the Michigan nieces. Sometime after the execution of the codicil Mrs¿ Gallup, according to the testimony of Dr. Barlow, told him that she was not on good terms with her family, and was not going to leave them anything at all; that she had not been on good terms with any of them for years. He also states that she rejected his suggestion,, toward the termination of her illness, that she should send for some of her relatives. On the other hand, a grandniece of Mrs. Gallup gave evidence concerning a friendly call which she made on her great aunt in 1891, when she spent the greater part of the day with the old lady, who treated her in a most kindly and affectionate manner. This witness, however, was not allowed to tell what Mrs. Gallup said about other members of her family, although I do not see why such statements should have been deemed too remote, in view of the evidence received from Dr. Barlow, to the effect that she declared that she had not been on good terms with any of them for „ years.
If we assume, however, that Mr. Robert Wilson, the principal legatee named in the will, had been the custodian of Mrs. Gallup’s property for a long period, and her trusted friend and business adviser, -there was perhaps nothing strange in the fact that she should bequeath her property to him to the exclusion of relatives living at a distance from her home, and whom she seldom saw or
Under the settled law of this State I think some further explanation than has yet been given should be furnished before this instrument is allowed to stand- as a valid codicil to the will of Emeline Gallup. A will made by a client in favor of his lawyer is viewed with great suspicion by the courts. (Marx v. McGlynn, 88 N, Y. 357, 371.) While it is n-ow held that the mere fact that the beneficiary is the attorney of the decedent- does not create a presumption that a testamentary gift was procured by undue influence — as it would in the case of a gift inter vivos — yet such gifts are scrutinized most carefully and will not be sustained where the circumstances are suspicious, unless those circumstances are satisfactorily, explained. The language of Andrews, J., in The Matter of the Will of Smith (95 N. Y. 516, 523), is singularly applicable to the facts of the case at bar-: “ The mere fact, therefore, that the proponent was the attorney of 'the testatrix did not, according to the authorities cited, create a presumption against the validity of the legacy given by her will. But taking all the circumstances together — the fiduciary relation, the change of testamentary intention, the. age, and mental and physical condition of the decedent, the fact that -the proponent was the draftsman and principal beneficiary under the will and took an active part in procuring its execution and .that the testatrix acted without independent advice — a case was made which * * * imposed upon the proponent the burden of satisfying the, court that the will was the free, untrammeled and intelligent expression of the wishes and intention of the testa
I do not deem any further discussion necessary to show that the explanation which the courts have uniformly held to be necessary in this class of cases is wanting here.
Each of the authorities cited in the oral opinion of the learned surrogate is readily distinguishable from the case at bar. In Cudney v. Cudney (68 N. Y. 148) the party charged with having exercised undue influence was a son of the testator. In The Matter of Mondorf (110 N. Y. 450) it was held that the simple fact that all of a testator’s estate was given to a stranger in blood did not warrant the inference that the gift had been obtained by undue influence. It is to be noted that in the case cited the' will was read twice to the decedent; that he left all his property to a lady with whom he had boarded for several years, having become estranged from his wife, and that the court said there was not the least evidence that this lady ever attempted to influence him in the disposition of his estate.
In my opinion, the decree, so far as appealed from, should be reversed and an order should be made directing the trial by a jury of the material questions of fact arising upon the issues between the parties to the proceeding.
All concurred.
Decree of the Surrogate’s Court, so far as appealed from reversed, and issues of fact directed to be tried by a jury, costs to abide the final award of costs.