198 A.D. 399 | N.Y. App. Div. | 1921
The will of the testatrix has been denied probate upon two grounds: First, that the will in question is the result of ■ undue influence; second, that the testatrix at the time of making the will was of unsound mind. The claim of undue influence in this case is sui generis. It is not claimed that any living person at or near the time of the making of the said will said' or did anything to influence the testatrix in the’disposition of her estate. It is claimed that the testatrix’s mother, who had been dead ten years, exercised undue influence over her by means of a letter which the mother wrote her seven years prior to the mother’s death. These facts arouse any one’s wonder as to how such a result could flow from such a cause.
The testatrix was the daughter of James W. and Mary A. Bogardus, who resided in the city of Poughkeepsie, Dutchess county, N. Y. The family was undoubtedly thrifty, but in moderate circumstances. The father was a saddler. He was an ardent Republican and an enthusiastic abolitionist. The testatrix had one sister, Mary, six and one-half years her junior. In 1860, with the knowledge and consent of her parents, Mary became engaged to a young man named Henry Fisher, who was a student at a school in Poughkeepsie. At the commencement of the Civil War in 1861, Henry Fisher went to Canada and remained there for more than a year. It was said that he went to avoid the draft. He was drafted, however, and sent a substitute. At this time feeling ran very high, and apparently Mr. and Mrs. Bogardus became very much incensed at Fisher for his lack of patriotism and opposed his marriage to their daughter. On Mary’s twenty-first birthday, August 6, 1864, she and Henry Fisher were secretly married. The father first learned of the marriage from strangers coming to his shop. He was told his daughter had married a secessionist. Bogardus called his daughter Mary before him and in the presence of his wife and other daughter Emma, told her
“ Be earnest; you will find professors every where going and coming, but never advancing one step in that growth in Grace which our Saviour demands. To believe Christ is so precious, that he is never out of mind or sight.
“ These last words my dear Child speak to you from the grave, and from the eternal world. I know the utter loneliness which you will feel when you realize that your last earthly friend has gone forever therefore I have written these lines, both to direct and comfort you.
“ Reach forward to the heavenly things, and remember that whatever this life has in store for you, that there is a house not made with hands into which your brothers and parents have already entered, and are waiting for you. May God bless you and make you a blessing, is your mothers last wish.”
Apparently the mother’s thoughts were at this time fixed upon death, but she did not depart this life until seven years later. During this time mother and daughter exchanged many letters of cheerful import. It is this letter filled with Christianlike and motherly advice which the learned surrogate finds unduly influenced testatrix. This letter and her will and codicil make it clear Mrs. Bogardus did not wish any of her property to go to her daughter Mary unless she became needy, and there is no proof that she became needy. Was this undue influence? The property was hers and she could do absolutely as she saw fit with it. She could have given it to Emma and in the instrument by which she gave it limited Emma’s power of disposition so that none of it could be given to Mary. Or she could have limited Emma’s power of disposition to certain or any religious or charitable organization. Such a limitation would have been absolutely legal. Can it be, then, that a mere request, no matter how solemn the terms in which it is expressed, imposes an illegal burden upon the donee? Surely not. It is difficult to conceive how under the circumstances here disclosed this mother could be guilty
The determination as to the testatrix’s lack of mental capacity is based principally upon the testimony of a large number of witnesses as to many minor occurrences which generally take their color from the mental attitude of the witness. Beginning prior to the mother’s death, they embrace all sorts of subjects, such as the fact that the mother and daughter did not live together, the daughter did not exhibit a sufficient amount of grief at her mother’s death; that the mystery of death was not sufficiently appalling to her to prevent her from at once occupying the room in which her mother died; that she prepared her mother’s body for burial and combed her hair in a different manner from that in which the mother had usually worn it; that she wore no mourning for her mother, permitted no token of death to be placed upon the outside of the house and saved a portion of the dress skirt in which her mother was buried to make some article of clothing for herself; that she issued invitations for the funeral and sent them to people whom the witnesses had never known to call upon the mother; that she wore bright colored clothes and used cosmetics to an extent which was conspicuous; that she changed lawyers without any reason being apparent to the witness; that she changed executors in her will, also without apparent reason, and numerous other instances of a similar character. These are all without significance. That the
There is another class of incidents testified to in which it is stated that the testatrix did not want her business to be •known — instructed her brokers to communicate with her in envelopes which did not bear a business card; that the testatrix said she was being watched and hung clothes over the key hole, stuffed cloths into cracks, etc., to prevent being watched; that at one time she got upon a table to look out of the transom to see if she was being watched; that she ate her meals in her room; that she went to Wanamaker’s restaurant for dinner night after night and had the same thing for dinner each time. This is not intended to be a recital of all the acts of this kind testified to, but it is sufficient to indicate the character of the acts upon which a finding of mental incapacity is necessarily predicated. In this particular case evidence of this character is subject to a weakness which does not always exist. In September, 1903, there was a marked change in the testatrix’s mental and physical condition. Although for years she had been a vohuninous correspondent, her letters had been indicative of health and mental capacity. At this time, however, they excited the fears of her friends, and when they called upon her they found her ill. Doctors were called and she was sent to a hospital. After some time in the hospital she went to a sanitarium in Pennsylvania. At
In addition to this class of testimony the contestants gave both medical and lay testimony as to the testatrix’s condition from September, 1903, to the date of her death in 1915. Upon this testimony and the other classes of testimony to which I have referred, hypothetical questions were framed and sub-, mitted to experts, who testified that in their opinion the testatrix was mentally incompetent to make a will at the date when this will was made. In arriving at this conclusion, of course, the date when the incidents recited in the hypothetical
In opposition to this testimony it was shown that the testatrix made a perfectly natural will considering her attitude toward her relatives and their attitude toward her. The surviving witnesses to the will and codicil — both men of experience — testify that at the time of the execution of the will and codicil the testatrix was of sound mind. The law looks with favor upon the testimony of the attesting witnesses. They have an opportunity of observation which no one else has, and their conclusion that the testatrix was at the time mentally sound should not be lightly disturbed. During all the period covered by the testimony hereinbefore referred to, the testatrix showed a complete grasp of the business of her estate. She knew when, where and how her money was invested; she knew when the interest was due; she was able to tell whenever any interest was unpaid or when her agent failed to remit, and no matter how many items were remitted to her at one time or how jumbled the accounts might be, she knew how the account should be and could state it clearly and correctly. She had many friends with whom she corresponded. She was interested in all the questions of the day, read the papers and the magazines, commented intelligently in all her letters upon matters of public interest, took a deep interest in church work, attended church frequently and commented in a thoughtful and logical, manner upon the sermons she heard and the persons who preached. She was interested in charities and interested in the very societies which are now made the objects of her bounty. Her charities show care, discrimination and thoughtful attention. She made friends and kept them — friends of intelligence and refinement. Her letters show unmistakably that during the period when it was claimed she was of unsound mind she was a careful and intelligent person in so far as the management of her affairs was concerned and in the other respects hereinbefore referred to. In regard to this proof there can be no mistake as to the dates. These letters and other documents- show that
The proponent called an expert witness to whom also was propounded a hypothetical question embracing the testimony in the case from, the proponent’s point of view, and upon this the witness gave his opinion that the testatrix was of sound mind.
The conclusion that the testatrix was of unsound mind is contrary to the weight of evidence.
The decree of the Surrogate’s Court of Dutchess county should be reversed and the will should be admitted to probate, with costs to all parties appearing separately, payable out of the estate.
Manning, J., concurs; Blackmar, P. J., and Mills, J., concur in the result; Rich, J., dissents.
Decree of the Surrogate’s Court of Dutchess county reversed and will admitted to probate, with costs to all parties appearing separately, payable out of the estate.