189 A.D. 477 | N.Y. App. Div. | 1919
Dr. John A. Bullinger propounded for probate an alleged last will and testament of William Marshall. Objections to the probate of the will were made by the widow who demanded a trial by jury, and an order was duly made directing such a trial of the following issues of fact:
“ I. Did William Marshall, the testator, subscribe the paper offered for probate at the end thereof in the presence of each of the attesting witnesses or acknowledge to each of them that such subscription appearing on said paper had been made by him?
“ II. At the time of making such subscription or acknowledgment did the said William Marshall declare to each of the attesting witnesses that the paper offered for probate was his last will' and testament?
“ III. Were there at least two attesting witnesses each of whom signed his or her name at the end of said paper at the request of said William Marshall?
“ IV. At the time of the execution of the paper offered for probate was the said William Marshall of sound and disposing mind and memory?
“ VI. Was the execution of the said paper by the said William Marshall caused or procured by fraud or undue influence?”
The evidence in the case developed the following facts:
Dr. Bullinger and Mr. Marshall had been acquainted with each other for a number of years and were on terms of intimacy. Marshall became very ill. Dr. Bullinger attended him in his professional capacity. A consultation was called and Dr. Thompson was called in and he advised Marshall that he was a very sick man and should put his affairs in order. Thereafter Marshall asked Bullinger to notify a Mr. Morrison, who had been his lawyer for a number of years past and was a distant relative, and a Mr. Graham, who was associated with him in business, to come to his house at three o’clock on Saturday afternoon. Bullinger testified that he notified Morrison and Graham of the appointment and that Graham came but that Morrison did not keep the appointment, and that after waiting more than an hour Marshall said that he did not care thereafter to be disturbed. Morrison denies that Bullinger ever made such an appointment with him. Some ten days later Mrs. Bullinger prepared a will in her own handwriting. Dr. Bullinger had arranged with three persons, friends of his, who were also acquaintances of Marshall, to come to the house whenever he should summon them, for the purpose of executing a will, and at ten o’clock at night he got these three persons together at his office and he and his wife went around to the residence of Marshall with the three witnesses. Morrison had been in the house for two hours that evening and nothing was said to him about the executing of a will. Dr. and Mrs. Bullinger went into the sick room, and Bullinger claims that his wife read the will to Marshall and Marshall said, “ yes, that is correct.” Thereupon the three witnesses were summoned and all three testify that Marshall was propped up in bed with his eyes closed; two of them testify that Marshall opened his eyes, when Susskind, one of the witnesses to the will, asked him if he knew him, and that Marshall nodded his head and said, “ ehm.” Suss-kind, however, testified that he shook Marshall by the shoulders; that Marshall opened his eyes but gave no sign
The jury specifically found that the execution of the paper was caused or procured by fraud.
There is no doubt from the testimony that Marshall at the time this will was executed was in a moribund condition and had no knowledge of what was going on. It is not claimed that he gave directions to any one as to the disposition of his property, but by the will, after making some specific bequests, all the rest, residue and remainder of his estate, both real and personal, was given to Mrs. Bullinger, and Bullinger was made the executor thereof. The electric business of Marshall was given to Graham, his business associate, and $5,000 was given to Morrison.
It seems that some two months before Marshall’s death Morrison had given to Mrs. Bullinger a blank form of will, and it was because of her possession of this blank form that she was enabled to prepare the will. The evidence of fraud in the execution of this will is overwhelming, and also that Bullinger was an active participant in the fraud and had full knowledge thereof when he propounded this will for probate.
Notwithstanding the fact that the jury found that the propounded will was not the will of Marshall, the surrogate allowed Bullinger $447.80 as his costs and disbursements and a further sum of $2,500 as his allowance for counsel fees, both payable out of the estate. Bullinger’s attorney claims that the question of allowing or refusing costs and disbursements rested within the discretion of the surrogate (citing section 2746 of the Code of Civil Procedure), and that where the surrogate has exercised his discretion, an appellate court
The decree in so far as appealed from is reversed, with costs to the appellant payable by John A. Bullinger personally.
Clarke, P. J., Laughlin, Smith and Philbin, JJ., concurred.
Decree so far as appealed from reversed, with costs to appellant payable by the respondent personally.
