15 Misc. 208 | N.Y. Sur. Ct. | 1895
Two important questions are presented for 'decision in this case. The first relates to the execution of the will. The second involves the charge of fraud and undue influence in procuring its execution on the part of the principal beneficiary. It is claimed on the part of the contestants that the will was not properly published by the deceased, and also that the deceased was. not advised of the contents of the will prior to its execution. There is no claim made that she was not a woman of fair intelligence and of sound mind, but it is claimed that since she could neither read nor write it was necessary for the due execution of this instrument to show that it was read to her, or, at least, that she understood its contents. This is undoubtedly the law. Matter of Lansing, 17 St. Rep. 440. The body of the will is in the handwriting of James H. Ryan. The signature of James H. Ryan, as a witness to the will, was proven. The will was signed by the testatrix by making her mark. Peter Buckley, the sole surviving witness, testified that
It is well settled in this State that a will may be properly executed by the mark of the testator; and, where one of the subscribing witnesses is dead, his handwriting may be proved,
The declaration may be made in answer to a question, or even to a sign. Coffin v. Coffin, 23 N. Y. 15.
Publication and request may be incorporated in the same words and acts. Matter of Kane, supra; Coffin v. Coffin, supra.
The words of request or acknowledgment may proceed from another, and will be regarded as those of the testator if the circumstances show that he adopted them, and that the party speaking them was acting for him with his assent. Gilbert v. Knox, 52 N. Y. 125, 129.
The publication and request are both, I think, embraced in the language which Mr. Ryan used to testatrix when he asked her “ if she wanted Mr. Buckley and him to witness the will,” which was then present, and had been prepared by him in her presence, and executed by her; and, if I am right in my conclusion that she knew the contents of the will, I think the will was sufficiently executed to meet the strictest requirements of the statute.
The remaining question, namely, whether this will was the result of fraud and undue influence, is the more serious one, and requires a somewhat careful examination of the evidence and the law applicable thereto. The testatrix was about seventy-five years of age; had received a somewhat serious injury irntthe breaking of her arm abo-ut a year before the making of her will; was somewhat feeble in health; but, as far as appears, was not affected by any weakness of mind or memory. -The evidence
On the other hand, the proponent insists that the relation of master and servant, as those terms are used and that relation is understood and treated in law, did not exist between these parties; that they were kindred by blood, and that such relationship was recognized between them in their intercourse with each other, and that their relations, from their long residence together and the intimacy of their intercourse, was more like that of mother and daughter; that, at least, they were, in addition to their kinship, very close friends and associates, between whom the most confidential and affectionate relations existed; and that the relation of master and servant was not recognized by them, or either of them, and did not in fact exist between them (whatever their outward or apparent relations were), and therefore the presumptions growing out of the relation of master and
The law applicable to the various relations between these persons, as claimed by the contending parties, is well settled. If this instrument was solely the offspring of love and affection, however the same may have been prompted or caused, it should stand as the will of the deceased. Tucker v. Tucker, 45 St. Rep. 458; Coit v. Patchen, 77 N. Y. 533, 539; Matter of Green, 67 Hun, 527.
If, on the other hand, it was the result of dependence upon the part of the testatrix, and of control on the part of the principal beneficiary, it is, in law, the product of fraud, imposition, or coercion, 'and its probate should be refused. Matter of Green, supra; Tyler v. Gardiner, 35 N. Y. 559.
This leads us to an. examination of the evidence to ascertain what was the actual relation existing between these parties (proponent and testatrix) at the time of the making of the will, for the purpose of determining (1) where the burden of proof rests in this case, and (2) of determining whether the party upon whom the burden rests has sustained the same.
The testatrix lived with the proponent many years, and, doubtless, performed the duties of servant, although it appears to have been of her volition, without contract or compensation for her services. She was at the same time a friend and a relative.
I am of the opinion, therefore, under the circumstances, that the insti’ument should not be admitted to probate upon the bare proof of its formal execution, but that it was the duty of the proponent to go further, and show that, while their apparent relations were those of master and servant, their real relations were otherwise, or, at all events, that proponent had taken no advantage of her relations with' testatrix; and the burden of proof, I think, was therefore upon proponent to show the will was. the result of testatrix’s own free act. Van Pelt v. Van Pelt, 30 Barb. 134; Loder v. Whelpley, 111 N. Y. 239.
This, proponent has essayed to do, and has introduced very considerable testimony tending to> show that the .relations between her and testatrix were not those of master and servant, but were those of kindred and close, intimate friendship; that the testatrix was never treated in the family as a servant; never ordered or directed as to her work; that no wox*k was exacted of her more than she desired to do; that she performed her duties from motives of love and affection, rather than for pay; that she was counseled with, advised, and treated as a mother would have been had she been performing the same duties for her daughter; that testatrix roomed with the sister’s of the proponent, and with proponent’s own daughter, was nursed, when sick, by proponent and her family, and was in all respects, so far as consistent with her employment, treated as a friend and
In conclusion, this instrument, following the lead of the testatrix’s affections, and being offspring of an intelligent mind, unaffected by fraud or coercion, however partial it may appear or unjust in discriminating against her other relatives, is fully established as the will of the deceased, and must be admitted to probate.
Decreed accordingly.
A statement that the paper is a “document” or “instrument” is insufficient. (Matter of Tyrrell, 28 Misc. Rep. 106; affd. 47 App. Div. 560; Matter of Delprat, 27 Misc. Rep. 355.)
Knowledge of the contents of the will may be presumed from the facts that the draft from which it was prepared was submitted to the testatrix, and that she retained the will until her death. (Matter of Rohe, 22 Misc. Rep. 415.)