14 Mills Surr. 84 | N.Y. Sur. Ct. | 1915
Henry T. Cutter, a large, if not the largest, stockholder in the drug house of Hegeman & Co., .and his wife, Amelia G. or A. Gertrude Cutter, lived for about thirty-eight years in a large old-fashioned corner house at No. 781 Lexington Avenue, in this city. The house was sumptuously furnished with (as one witness described it) “ the best that money could buy.” In this home Mrs. Cutter gave many entertainments. Her own and her husband’s relatives were received there by her. They seemed to be interested in her and she in them. The Cutters had no children. Up to about the last ten years of her life Mrs. Cutter lived as women in her circumstances usually do. She had servants and entertained her friends “ in style,” asi one witness expressed it. She dressed well, even extravagantly. She
After a serious illness: Cutter died January 20, 1914, about two months prior to the execution of the paper herein propounded. At the time of his death he was- eighty-three or eighty-four years of -age. He was helpless, feeble and diseased.
The upstairs rooms of the house were always in great disorder. Except for the basement, the other parts of the house were kept locked. During this period the aforementioned “ Beamish ” looked after matters generally and attended to the furnace and marketing (when he was not too drunk to do ©o). There was no other servant. “ Beamish ” called in the morning and obtained admission to the house by the use of a key which Mrs. Cutter let down on a string from a front window on the second floor of the house. Empty, unclean milk bottles, milk bottles in
Ini one of these rooms she received visits from Ramsey, Mills, Tiehenor, Bradner, Frauenthal and other actual and potential beneficiaries. In one of these rooms the paper propounded for probate was signed. Testatrix suffered from cancer of the uterus, chronic nephritis, toxemic poisoning, due to -obstruction of the bowel®, general anemia and' arterio sclerosis: ' During this period she habitually took large quantities of morphine and codein. She used these drugs up to within a day or two- of her deatih. There is no evidence that the doctors ever attempted to procure for her a trained nurse, nor did Ramsey, Milk or Tiehenor ever attempt to bring i-n- a trained nurse to take charge-of this dying and suffering old woman. In spite 'of the filthy condition of her bed land clothing and though one of these doctors was a beneficiary, and must have been aware of her condition, she was not removed to a hospital, where she would be forcibly bathed, nor was -any -action taken in her -behalf which common humanity would require. Was this because, aisi one of the witnesses sa-id, Mrs. Cutter was “ cranky ” and would not submit to the ministrations of a trained nurse, or was it because
Here in the living room on March 21, 1914, Mrs. Cutter signed the paper propounded for probate; it was also signed- by the subscribing witnesses, and there is no doubt that what might he called the mechanics of executing a will were gone through with a proper regard for the forms of law.
The propounded paper is the third will made by Mrs. Cutter during the last nine months of her life. In August, 1913, Tichenor supervised the execution of a will1 in which Mrs. Cutter bequeathed to him a legacy of $500,000. On March 11, 1914 (ten days prior to the execution of the will propounded for probate herein), Frauenthal’s attorney, Mr. Kendall, prepared a will. In this will Tichenor’s legacy was cut to $50,000 and the residuary estate (which may amount to $100,000) was left to an institution of which Frauenthal is the head. Tichenor was unaware of the execution of the will of March eleventh, or the one offered f-or probate herein. In these two wills Ramsey and Mills are given legacies of $200,000 and $100,000, respectively.
In the will now being contested, which is dated March 21, 1914, and with the drawing and execution of which neither Frauenthal nor his ■attorney nor Tichenor was connected, a material change is made in the disposition of the residuary
It is fairly evident, therefore, that during the last months of her life testatrix was apt to favor in her will whoever procured and supervised the execution thereof. There is testimony showing that Ramsey was dissatisfied with the will of March 11, 3 914, in which Frauenthal’s institution was the chief beneficiary. Ramsey said the will of March eleventh was illegal and would not stand a test in a court of law. He called on Kendall, the attorney who drew this will, and asked him to have Mrs. Cutter execute a codicil making a bequest to a charity in which Mrs. Ramsey was interested. It appears- that Ramsey had charge of the execution of the propounded paper. Ramsey procured the four witnesses; Ramsey made arrangements for the witnesses! to attend the house; Ramsey had charge of the party at the house; Ramsey gave instructions to “ Beamish,” and Ramsey brought the witnesses to Mrs. Cutter’s room.
The testimony leaves no doubt that Mrs. Cutters’s mind had become greatly weakened during the last few months of her life. There can likewise be no doubt that during this period her mind was constantly drugged by the morphine and codein she was in the habit of taking. During this period Ramsey, Mills and Tichenor were frequent visitors- at the house. Tichenor bought chops for her at a neighborhood butcher store. He- sometimes attended to the furnace. Ramsey, not to be outdone, brought chickens to her.
The two persons who appear to have been most kind to her, “ Beamish ” and Mrs. Jaeger, are not remembered in the will although she had promised Mrs. Jaeger two houses and stated that she would remember* “ Beamish ” in her will.
Various experts gave testimony for the proponents and for the
The will offered for probate is not a simple will. It contains the names of many legatees with legacies of various amounts. There are several provisions that require considerable intelligence to grasp. The testimony of proponents’ own alienist, Dr. Gregory, is to the effect that the testatrix was unable to comprehend the contents of the will as a new proposition. Proponents’ witnesses testified that tjre deceased said at the time of the execution of the will that her husband’s will, which the later wills followed in part, was a “ jumbled-up mess.” This would indicate that at the time of executing the paper propounded the testatrix was unable to understand the wills upon which the last will was based. There is a material change between the will of March 11, 1914, and the will of March 21,
The above facts show this to be a ease having all the ordinary indications of fraud. The uncontradicted facts show that the deceased had become greatly weakened in mind and body. She was of advanced age and, because of her bodily and mental infirmities and her absolute seclusion, was practically prevented from receiving independent and unselfish advice. Her easy accessibility to the approach of designing men, together with the other remarkable features and circumstances of the case, oast upon the proponents a heavy burden to show clearly and satisfactorily that at the time of executing the paper propounded herein the testatrix had testamentary capacity and that such paper expresses the free and untrammelled' will of a capable testatrix. Without any further discussion of the principles of law involved I will say that I am not satisfied that the proponents have discharged that burden and I will, therefore, deny probate to the paper propounded as the last will and testament of the deceased.
Probate denied.