185 A.D. 782 | N.Y. App. Div. | 1919
The will was offered for probate by the appellant, who was a second cousin of the testatrix, and who was the sole residuary legatee and was designated the sole executor. The other heirs of the testatrix, consisting of two first cousins and sixteen second cousins, were duly cited and appeared, but William D. Van Roden, the respondent, only filed an answer contesting the probate. The issues arising on his answer related to the due execution of the will and to the competency of the testatrix and to whether she executed it free from restraint and undue influence; but on the trial before one of the surrogates and a jury the only issue left
The alleged will was executed in the borough of Manhattan, New York, on the 4th day of January, 1915, at the office of Lewis S. Gobel, Sr., who was and long had been the attorney for the testatrix, and was witnessed by two members of the bar of some fifteen years’ standing, one of whom was his son, who were associated with him in the practice of the law, and by his stenographer. Their testimony with respect to the execution of the will is uncontroverted and shows due execution and that the testatrix came to the office unaccompanied and was apparently of sound mind and memory.
The learned surrogate by consent withdrew from the consideration of the jury all of the issues excepting the fourth which was as to whether Jane E. Barney, the decedent, was of sound mind and disposing memory at the time she executed the paper offered for probate.
The testatrix was born on the 14th day of April, 1835, and she died on the 9th day of November, 1915, at the age of eighty years six months and twenty-five days. At the age of seventeen years and nine months she married Mr. Barney and they remained husband and wife until his death on the 1st day of January, 1900, but had no issue. On the 14th day of March, 1860, at the age of twenty-six years, she was committed to the lunatic asylum, which was a department of the New York Hospital and a private institution, at Bloomingdale, N. Y., by two police justices of the city of New York. At the head of the commitment there is a reference to
After her last discharge from the asylum she continued to live with her husband at their house No. 135 West Forty-
The testimony of Mrs. Heroy indicates that the testatrix was penurious and denied herself comforts which in view of her means she could well have' afforded. Doubtless the great majority of people, in the opinion of those who know of their financial circumstances, are either too penurious or too extravagant; but they are dealing with their own and with themselves. Incompetency cannot be predicated solely on either penuriousness or extravagance and such evidence ordinarily can be of but little or no probative value on the issue of competency. But beyond this Mrs. Heroy’s testimony tends to show that the testatrix was in some respects peculiar and if her statements to Mrs. Heroy were truthful they indicate that at times, at least, she did not fully comprehend the nature and extent of her fortune. The estate of $200,000 which she received' from her husband had increased under her management thereof to upwards of $300,000 and consisted of the place in New Jersey, her former home and two other houses in New York city from which she derived a regular income, and bonds and mortgages, stock and bonds, .and she had about $40,000 on deposit with a trust company. According to Mrs. Heroy she complained of being poor, and when ill and requiring the services of a physician, she refused to summon one on the ground that she was too poor, and on one occasion Mrs. Heroy brought this to the attention of the appellant and he sent his own physician to minister to her. Mrs. Heroy’s testimony is also to the effect that the testatrix was more or less nervous and talked aloud to herself and habitually broke off conversations with her by abruptly rhanging the subject, and had a dazed expression in her eyes at times and walked very slowly and was afraid to step onto an elevation, and lived on crackers and milk, cereals and light foods and admitted that she had not had proper food, but when eating elsewhere she partook of ordinary food the same as others. Mrs. Heroy further testified that the testatrix
The well-settled rule in this class of cases is that if there be more than a mere scintilla of evidence tending to show incompetency to make a will and of . such a character that different inferences may fairly be drawn therefrom, the case must be decided as one of fact and if the trial be before a jury it must be left with the jury. (Hagan v. Sone, 174 N. Y. 317.) Aside from the expert testimony in answer to the • hypothetical questions, the testimony of Dr. Dold and of Mrs. Heroy and the other testimony, which we do not deem it necessary to set out in this opinion, was sufficient to present a question of fact for the determination of the jury, but it cannot be said to preponderate in favor of the respondent. With the exception of obtaining advice from the appellant and advice and such legal assistance as were required from her attorney, the testatrix managed and looked after her property throughout the entire period from her husband’s death, and she evidently exercised sound judgment with respect thereto. The only loss which she incurred as a result of her own investments, if any, is with respect to the mortgage which had to be foreclosed and which evidently was taken on the advice of her attorney, and in the meantime she had increased her estate from $200,000 to upwards of $300,000. Her husband after living with her for twelve years after her last discharge from the asylum and who had full knowledge of all facts relating to her mental condition, then made his will leaving all of his property, with the exceptions stated, to her unconditionally, although he evidently understood that
The court properly instructed the jury that the burden of showing by a preponderance of the evidence that the testatrix was competent at the time she made the will was on the appellant (Delafield v. Parish, 25 N. Y. 9), and the jury were so instructed several times in the main charge and on requests to charge. Counsel for the contestant, however, was not satisfied to rest on those instructions and led the court into error by requesting at the close of the main charge that the jury be instructed that if after considering all of the evidence a “ doubt ” remained in their minds as to the mental capacity of the testatrix to make a will they must answer in the negative the question as to whether she had mental capacity to make the will, and the jury were so instructed and counsel for appellant duly excepted. In the circumstances the jury may have supposed that this was equivalent to an instruction that not only must the plaintiff sustain the burden of proof by a preponderance of evidence, but that this preponderance of evidence must satisfy them beyond a doubt with respect to the mental capacity of the testatrix to make the will. Laymen comprising the jury may well have deemed that the burden went further even than the burden of reasonable doubt in criminal cases and required proof satisfying them not only by a preponderance of evidence, but beyond any doubt. It may be that these instructions were given inadvertently by the learned surrogate, but they appear to have been taken from an expression in the opinion of the Court of Appeals in Delafield v. Parish (supra), in which, however, the court was merely considering the sufficiency of the evidence on the trial of the issue before the surrogate and was not laying down a rule for the instruction of jurors.
The commitment and the records of the asylum were received in evidence generally over the objection duly made and exception duly taken by appellant that they were incompetent as proof of the facts therein recited, and they were read to the jury and were embraced in the hypothetical question upon which medical experts for the contestant expressed the opinion that the testatrix was of unsound mind at the time she made the will. It was undoubtedly competent to show that the testatrix had been so confined in the asylum and the jury might fairly infer therefrom that during that time she was of unsound mind, for apparently there was no effort on her part or on the part of her husband or relatives bo obtain her release from the asylum; but the appellant conceded that she was properly so confined and that she was of unsound mind during that time. The commitment was ex parte and was, therefore, not an adjudication or competent to show that she was insane at the time. (Sporza v. German Savings Bank, 192 N. Y. 8, 33; People ex rel. Peabody v. Chanler, 133 App. Div. 159; affd., 196 N. Y. 525. See, also, Leggate v. Clark, 111 Mass. 308; Dewey v. Allgaire, 37 Neb. 6.) The learned surrogate at the request of counsel for the appellant, instructed the jury that the commitment was not a legal adjudication that the testatrix was at that time insane; but the trial lasted
It is fairly to be inferred that the appellant conceded that the entries in the original records of the asylum, copies of which were received in evidence, were made at the times they purport to have been made and were produced from the proper custody; but he is not estopped from contending, as he does now, that they were incompetent and that if part of them might have been made competent under the ancient document rule, other essential facts necessary to make them competent were not shown. It was not shown that there was any rule or regulation of the asylum requiring that such records be kept or prescribing who should obtain and enter the data, and there was no proof of the handwriting. In many respects the entries are hearsay and do not purport to show facts within the knowledge of the party making them. The only witness called, who was connected with the asylum during either of the periods of the confinement of the testatrix therein, was Dr. Dold. He made some of the entries with respect to her case. Those entries might have been made competent by testimony that he knew them to be correct when they were made and that his recollection so as to enable him to testify with respect thereto was not refreshed by examining them. (See Levy v. Mott Iron Works, 143 App. Div. 7.) The commitment and records, which were received in evidence generally and read to the jury and recited in the hypothetical question as proof of the facts and opinions therein recited, were, if competent, necessarily very prejudicial to the appellant. On no theory were the recitals therein, which constitute narratives of past events and conclusions as distinguished from statements of facts and opinions, admissible as evidence.
If the entries, in so far as they show what the testatrix said and did while confined in the asylum, should be deemed admissible on the theory that testimony with respect thereto might have been given by the entrant if living — manifestly they could only be received on evidence showing or fairly warranting the inference that such observation and entries were made in the due course of duty. The entries in so far as they purport to show what the testatrix said and did, were
I am of opinion that on an issue such as is here presented the records should not be received as proof of facts recited or opinions recorded therein. If admissible at all they would be received as secondary evidence to show the observations and opinions of those in charge of the testatrix at the asylum and if admissible on that theory they could only be received to the extent that they recite facts and opinions with respect to which it would have been competent for the entrant, if living, to testify. It must, be borne in mind that what it is sought to prove by these records is not the fact that there were such records containing such entries, but the observations and opinions of the entrant, which, owing to death, can be shown only indirectly. The secondary evidence is not offered to show the performance, either pursuant to law or duty otherwise imposed, of an act by the entrant, such as the date of a birth, baptism, marriage or death, or proof of the performance of duty by a notary or other official. On the issue of insanity a lay witness may state what he saw or heard the person, whose sanity is in question, say or do and
It follows, therefore, that the decree and order should be reversed and a new trial granted, with costs to appellant to abide event.
Clarke, P. J., Dowling, Smith and Shearn, JJ., concurred
Decree and order reversed and new trial ordered, with costs to appellant to abide event.
See R. S. pt. 1, chap. 20, tit. 3, §§ 1, 4, 5, 8; 1 R. S. 634, §§ 1, 4, as amd. by Laws of 1838, chap. 218; 1 R. S. 634, § 5; Id. 635, § 8; Laws of 1842, chap. 135, §§ 20, 22.— [Rep.