179 A.D. 539 | N.Y. App. Div. | 1917
Abby Strong died November 25, 1915, leaving a last will and testament executed February 22, 1906, and a written instrument purporting to be a codicil thereto executed October 20, 1910. The will is not opposed. Objections having been filed to the codicil and a jury trial having been demanded, the surrogate pursuant to statute certified to the Supreme Court the questions to be determined. After a trial of great length the jury disagreed and it was thereupon stipulated by the parties that the court might reserve decision on the proponent’s motion for the direction of a verdict and that if it concluded that such direction was proper it might make such direction in all respects as if the jury were present. The court thereupon took the case under advisement and subsequently made the order appealed from directing a verdict that the decedent at the time of the execution of the codicil was mentally competent to make the same and that the same was not obtained by undue influence and was executed with the formalities required by law.
It is not urged on this appeal that the codicil was the
Abby Strong at the time she executed the codicil was seventy-four years old. She was the last of four sisters, none of whom ever married. They resided together formerly on a farm where one sister died, but in the year 1882 or 1883 the three survivors removed to the city of Schenectady and continued to live together until they severally died. Another sister died in 1905. On February 22, 1906, the remaining sisters, Jerusha and Abby, both made their wills substantially similar except that each made the other her residuary legatee and executrix. Legacies were bequeathed in each will to various institutions and individuals amounting to about $25,000. Jerusha died March 20, 1910, and by virtue of her said will Abby received her residuary estate which together with what she then owned made her worth approximately $140,000. She had no relatives nearer than cousins. The contestants are two of her next of kin. October 20, 1910, seven months after the death of Jerusha, she made the codicil in question wherein after bequeathing some minor legacies in addition to those bequeathed in her original will, she gave all of her residuary estate, about $100,000, to two missionary societies of the Methodist Episcopal church. She had been for many years a devoted member of the Methodist church and an attendant of its various services.
About two years prior to the execution of the codicil the deceased developed arterio-sclerosis, which is described as having been progressive. She became, subject to physical attacks or seizures accompanied with convulsions which sometimes caused her to fall and rendered her unconscious. Usually these seizures came on at night and would, leave her in an unconscious condition for several hours, but the effects thereof continued longer. During the year 1910 she was subject sometimes to three of these attacks in a week and sometimes there would be an interval of two weeks between the attacks. These continued until her death, although she died from another cause. She frothed and emitted from her mouth
The alienists of the respondent admit that during the time of these attacks and for some period subsequently the deceased was irrational and I do not understand that any one claims the contrary.
Much testimony was given on both sides bearing on the mental condition of the deceased in the intervals between these attacks. Instances of abnormal conduct were related which need not be here detailed. It appears, however, that generally she directed her own household affairs, and purchased the family supplies and paid therefor, and paid other bills and conducted various, business transactions. Sometimes she received interest on securities belonging to her or the
The trial justice was of the opinion that it was necessary for the appellants to establish that the mind of the deceased was permanently impaired when the codicil was executed. He says: “ If she was incompetent on October 20, 1910, it was because she had then come into a permanently enfeebled condition of mind,” and refers to many subsequent and long periods when she was shown to be competent and rational as “a complete answer to any contention that her-mind was permanently impaired as early as 1910.” (See 99 Misc. Rep. 251.) This statement of the trial justice was apparently predicated on the hypothesis that when she executed the codicil the deceased was free from the effects of her characteristic physical attacks above described and if his hypothesis were correct perhaps his conclusion based thereon would also be correct. But the real question was whether the deceased “ at the time of executing it [the codicil] was in all respects competent to make a will.” (Code Civ. Proc. § 2614.) If she was in a condition of incompetency when she executed
We, therefore, approach a consideration of the evidence bearing on the mental condition of the deceased at the particular time when she executed the codicil. Four days prior thereto Bishop Bashford of the Methodist Episcopal church and the Rev. Dr. Adams, her pastor, called on her to solicit a subscription for the cause of missions. She expressed her interest in the cause and spoke of making a will and said that she contemplated devoting part of her property to that purpose and promised an immediate contribution of $1,000. Bishop Bashford suggested the desirability of not procrastinating making her will and advocated the cause in which he was interested. Three days thereafter Dr. Adams again called and received from her a check for the $1,000 which she had promised. There is no suggestion in these occurrences of improper influence or overzealous importunity but the suggestion arises that perhaps the codicil was not the spontaneous or unaided production of her own mind. She received her visitors on those occasions in her parlor and discussed the subject uppermost in their minds as well as other incidental subjects in a manner which impressed them as rational. The day after the last visit mentioned she executed the codicil. In the afternoon of that day she was so ill that two physicians, Dr. Vander Bogert and Dr. Pearson, were in consultation at her house. Both of these physicians were witnesses for the proponent, but neither gives any explanation of her illness nor what treatment was given or remedies applied. The particular date is fixed by the record book of Dr. Pearson. There is evidence that she had pre
The burden of proof rested on the proponent to establish mental competency at the time of the execution of the codicil. (Dobie v. Armstrong, 160 N. Y. 584, 590; Matter of Goodwin, 95 App. Div. 183; Matter of Schreiber, 112 id. 495; Matter of Van Den Heuvel, 76 Misc. Rep. 137, 146.)
The law now gives the determination of questions of fact in a case'like this to the arbitrament of a jury and the court is not justified in withdrawing such questions from the consideration of a jury, if, upon a consideration of the entire evidence, reasonable men might draw different inferences. (Tousey v. Hastings, 194 N. Y. 79; Matter of Case, 214 id. 199, 203.)
It is only when a verdict must be set aside as unsupported by the evidence and not when it may be set aside for that reason that a verdict may be directed. (Getty v. Williams Silver Company, 221 N. Y. 34, 39.)
In the light of the foregoing legal rules and bearing in mind that there were periods when Miss Strong was unquestionably incompetent and that these periods came on with suddenness and frequency and were due to a failure of brain control and that at such times she was in a “ hazy ” condition from twenty-four to forty-eight hours, that she was so ill several hours before the execution of the codicil as to require the presence of two physicians in consultation, although the day before she had in- apparently good health delivered to Dr. Adams the check for $1,000, and that the two physicians do not negative the inference that her illness was one of these characteristic attacks which undeniably rendered her incompetent for some time subsequently, and in view of what occurred in her sick room when the codicil was executed and that the subscribing witnesses are unable to give persuasive testimony demonstrating her mental clarity at that time, it cannot be said as a matter of law that her mind was not in such a confused or nebulous condition when she executed the codicil, as the result of one of those attacks that she was then incompetent to execute it. Such an inference would not be unreasonable as matter of law.
Authorities cited by the respondent have no application to such a state of facts as exist here. Some of them arose under former section 2653a of the Code of Civil Procedure, where the burden of proof was placed on the contestants, and
We are not unmindful that in a case free from undue influence such as this seems to be not a very high degree of mentality is required to make a valid will. But here we have a case where it conclusively appears that the deceased was frequently incompetent for the performance of such an act and the circumstances existing at the particular time when she executed the codicil are such that reasonable men might infer that such condition then existed. We express no opinion as to the merits of the controversy, but hold merely that the evidence was such as to require the submission of the controversy to the jury and that the direction of a verdict by the court was error.
The order and decree, so far as it admits to probate the codicil, should be reversed, and" a new trial granted, with costs to the appellants, payable out of the estate, to abide the event.
All concurred, except Kellogg, P. J., who dissented.
Order and decree, so far as it admits to probate the codicil, reversed, and new trial granted, with costs to the appellants, payable out of the estate, to abide the event.