14 Mills Surr. 61 | N.Y. Sur. Ct. | 1915
The alleged will of the decedent is offered for probate by her niece who is nominated and appointed therein as executrix thereof. The proponent under the terms of the propounded document, if established as the valid will of the decedent, would receive the sum of $7,500. The instrument also contains a provision in favor of a daughter of the decedent in the sum of $2,000, and then a bequest and devise of the rest, residue and remainder of her property to certain of her nephews and nieces named therein. It is conceded upon the record that the property of the decedent, real and' personal, is of the value of about $12,150, so that the proponent is the largest beneficiary. In her petition for probate she sets forth as- all of the heirs and next of kin of the deceased the- daughter of the deceased named in the will, if she be living," and if she be dead, her personal representatives, etc., and also the nephews and nieces who- are mentioned as residuary legatees in the will. No reference is made to the sister of the decedent, although it is claimed that at the time the alleged will was executed by her she mentioned her sister. The daughter was served by publication, and upon affidavist submitted by the petitioner, which tended to show reasonable effort to ascertain the residence of the daughter of the decedent.and a failure to find it, mailing of the- citation was dispensed with. Pending the submission of proofs, the sister of the decedent applied for an order bringing her into the proceeding as a party 'and allowing her to appear. Such order was made -and she thereupon appeared and filed objections in the
The decedent was about sixty-two years of age. ■ On or about 'December 4, 1913, she received serious burns which had been termed by the medical witnesses third degree burns and by one physician as third and fourth degree burns. On January 8, 1914, she became an inmate of the City Hospital on Blackwell’s .Island, having come to that hospital from Lebanon Hospital. She remained in the City Hospital from that date to February ninth when she died. The disputed document is alleged to have been executed by her at the hospital on the 5th day of February, 1914, four days before her death, and at a time when the evidence clearly shows that she was in a critical condition, seriously ill with the chances of her recovery exceedingly doubtful. The will therefore comes within the category of so-called death-bed
The physical appearance of the propounded document is such as to warrant the most careful consideration. The name of the niece who is most abundantly provided for in, who is the executrix nominated by, and who the testimony shows was present at the execution of, the will, is Amelia Cook. The propounded document is signed “ Amelia,” being the first name of the decedent and also of this legatee, and then appear the letters “ Co” over which are written the letters “ K-i-n-g,” the letters “ Ki ” of the name “ King ” being superimposed upon the letters “ Co.” Ho explanation of this unusual circumstance is offered unless it 'be in the testimony of the attorney who attended at the execution of the alleged will, hereinafter referred to.
The two attesting witnesses to the document were nurses in the employ of the City Hospital, and it is claimed that the instrument was executed before them and also in the presence of the proponent and the lawyer who prepared the document. Upon the direct examination, one of these nurses testified positively that she saw the testatrix sign the instrument; that the decedent spoke in German a great deal and the proponent interpreted to the attorney preparing the will; that the witness at the time of the execution recalled the instructions that were given because she understood German but could1 not remember , any' of them when testifying; being recalled at the same hearing she modified her testimoney by stating that she was looking at the decedent part of the time while the latter wás writing
The testimony of the two attesting witnesses above referred ¡to seems to be' contradicted- by the attestation clause. This attestation clause is not in printed form, but is written in longhand and it recites among other things that the document was “ then and there signed by Amelia King in the presence of us ” and is signed by the two attesting witnesses.
I think it is clear from the testimony of the witnesses referred to that the propounded' document was not signed by the testatrix in the presence of both of the witnesses. If, therefore, the statute was complied with at all, it was complied with by ithe decedent acknowledging the subscription to the will to have ¡been made by her to each of the attesting witnesses. The unnisnal appearance of the subscription would naturally lead to •the inquiry whether the signature was due to the .assistance of ’the proponent or to her control. (Matter of Kearney, 69 App. Div. 481.) I think, however, that the subsequent acknowledganent, of the signature and the adoption thereby of the same by the decedent, together with the evidence as to the making of the signature, is sufficient to justify a finding that the formalities of the statute have in that regard been complied with. (Knapp v. Reilly, 3 Dem. 427, 431 ; Van Hanswyck v. Wiese, 44 Barb. 494 ; Robins v. Coryell, 27 id. 556 ; Chaffee v. Baptist Missionary Society, 10 Paige, 85, 92 ; Sisters of Charity v. Kelly, 67 N. Y. 409.) I should hesitate to base á finding that such an. acknowledgment was made upon the testimony given by the two nurses, .standing alone, and which they gave after ¡they both testified- on the first hearing, upon which occasion ¡they did not testify to such acknowledgment, but I find in the testimony -of the attorney who prepared the will, when be first testified in the proceeding, a statement to the effect that such •acknowledgment was made. With his testimony corroborating the testimony of the nurses before me, I reach the conclusion
I pass, therefore, to a consideration of the testimony bearing upon the mental condition of the decedent and the influences surrounding her at the time of the alleged execution of the document. The testimony of the subscribing witnesses and the attorney who prepared the will has already been referred to and is to the effect that the decedent was rational. Among the witnesses produced, by the contestant were three who had seen the decedent on the day the will was executed. One of these witnesses was an attorney at law favorably known throughout this county, who appeared to be entirely disinterested and whose testimony has not been contradicted or impeached in. any way. He testifies that on the 4th day of February, 1914, the day before the alleged will was made, the proponent called upon him and that he then made an appointment with her attend at. the City Hospital on Blackwell’s Island on the following day for the purpose of preparing the last will and testament of this decedent; that on the following day at about noon he attended at the bedside of the decedent in. company with the proponent; that the decedent was lying in a single bed; that the color of her skin was grayish, her teeth clenched and her lips drawn tightly over her teeth and when he spoke to her he could hardly get an answer that was audible; that she uttered sounds which came at distinct intervals of time after a minute or two and that he was present about twenty to twenty-five minutes; that he asked' her the names of relatives and got no answer to the question, but that she answered “ yes ” at some times and at other times “no” when the proponent put questions to her suggesting names; that he asked her whether1 she wanted him to draw her will and after some hesitation she said “ Yes,” and upon again asking her she replied in the German language “ Morgen ” meaning to-morrow, and that her acts and declarations as testified to by him impressed him as being
The attorney who drew the will states' that he did not know the proponent but that a telephone message was received at his office on February fifth before three o’clock p. m., making an appointment for him with her, and that she arrived at his office at two-thirty, his office being' in Hew York pity, and that he thereupon went with her and arrived at the ward1 where the .decedent lay ill at about ten minutes to four p. m. His testimony further is that the proponent did" not inform him that she had been at the hospital with another lawyer, and that when he entered the hospital be told the persons at the office that he desired to. draw a will, but not whose will he desired to draw. The proponent was not called to contradict this testimony and the court must, therefore, accept as proved, that the proponent, after having attended with an attorney to draw this decedent’s will, and having been advised by the attorney after he had asked questions of the decedent, that in his, the attorney’s, opinion the decedent was not capable of malting a will, she hastened from
The house physician in charge of the institution in which the patient was confined w¡as also called by the contestant, and his testimony is that he saw her probably every day; that on the twenity-ninth of January she had a chill and developed broncho-pneumonia, and on February fourth her condition was such that when spoken to she bad to be aroused and her answer was “'yes” and “no” for the same question; that when spoken to there was no response, and that she was ordered to be put on a waterbed, and was put on a waterbed at nine-thirty a. m. on February fifth to prevent her injuring herself. He further says that at one-thirty o’clock on February fifth, which it will be observed was only a few hours prior to the time when this alleged will was made, and between the time the first attorney had declined to- prepare the alleged will -and its subsequent preparation, he made -a thorough examination of the deceased and made the diagnosis of pneumonia; that she had to be aroused; that there was no response^ only muttering, and no reply to questions- put to 'her; that she could not answer and was in a stupor, and that she was not in such a mental state that she could recall the objects of her- bounty or the nature and extent of her property.
The testimony of the physician in immediate charge of the ward where the deceased was confined was not directed speci
There is no evidence to- indicate why the decedent should prefer her niece, the .proponent, over her own daughter. There is testimony by the attorney who prepared the will to the effect that the proponent herself made some reference to services she had rendered for the decedent, but this is clearly a self-serving declaration made by an interested party which the court would have stricken out if requested so to’ do and to which very little, if any, weight can he given. The same witness also testifies to a statement made by the decedent herself, to the effect that the proponent bad taken care of her. This is so vague and indefinite, however, that it is difficult to base any finding upon it. If the proponent did render services to the decedent for
It is contended- that the daughter did not often visit her mother, and from this is argued that the relationship between the decedent and her daughter was not pleasant; but I think that the reason for the absence of the daughter from the mother’s ' home has been explained. It is not necessary to refer to it at length in this opinion. Suffice it to say that there appears to have been a reason which to the decedent seemed sufficient why the decedent did not wish to have her daughter call upon her frequently and kept her more or less at a distance. Under the circumstances, I do not think that this state of facts was- an indication that the affection which this mother had for her daughter was less strong than that which usually exists between-persons so closely related, and it certainly was no reflection upon the daughter. If anything, the facts disclosed would warrant the assumption that the affection of the decedent for her daughter was strong. As late as October, 1913, she wrote to her in endearing terms, as appears from writings in evidence.
The burden! of proving that the propounded document is the valid.- last will and testament of the decedent upon the factum and the issue of testamentary capacity is upon the proponent. Before a will is admitted to probate, the evidence should be of such a nature and of such weight and probative force that the court on its- conscience can say that the document is what it purports to be; not alone that the statutory formalities of execution were complied with, but that the decedent bad testamentary-capacity. (Code Civ. Pro. § 2614, formerly Code Civ. Pro. §§ 2622, 2623 ; Matter of Goodwin, 95 App. Div. 183 ; Matter of Schreiber, 112 id. 495 ; Matter of Lissauer, 5 N. Y. Supp., 260 ; Matter of Gedney, 142 id. 157 ; Rollwagen v. Rollwagen,
In the case now before me the evidence does not convince me that this testatrix was of sound mind on February 5, 3914. On the contrary, even if the burden of proof were upon the contestant on that issue, I would, on the evidence, hold flhat she had sustained that burden.
Had I reached a contrary conclusion, however, I would still hesitate to permit this document to go to- probate. A consideration of the conditions under which this will was executed; the physical condition of the decedent practically undisputed; the fact that the chief beneficiary was advised by the first attorney, whom she requested' to draw the will, thait in his opinion the testatrix was incompetent; her haste in procuring another -attorney when the last statement m-ade by the decedent to the first attorney was that she would make her will the next day; her failure to advise him of what had occurred a few hours before; the fact that it was her ’hand which guided, if it did not control, the hand -of the decedent when her name was subscribed to the' instrument, under the terms of which the decedent’s only child would receive but $2,000, whereas the proponent would receive $7,500, and the remaining nephews and nieces -almost $2,700; all of these facts would cause me grave doubt as- to whether the propounded document was the expression of the free d-esire and will of the decedent or was due to an influence exerted upon be-r, which in. her weakened condition supplanted her will with t-he will of another and constituted undue influence. (Marx v. McGlynn, 88 N. Y. 358, 371 ; Children’s Aid Society v. Loveridge, 70 id. 387, 394, and cases cited supra.)
A further consideration of this question-, however, is- not meces- . sary in view of the conclusion which I have reached upon the , issue of testamentary capacity.
In accordance with the views expressed it follows that probate of the propounded document must be denied.
Probate denied.