191 A.D. 76 | N.Y. App. Div. | 1920
Lead Opinion
The testatrix was a maiden lady about eighty years of age at the time of the execution of the will, and her nearest next of kin were second cousins of the half-blood. She kept house alone, doing her own housework to a very large extent. Upwards of twelve years before the will was made, one Thomas
“ July 3, 1918.
“ Dr. O’Kennedy:
“ Dear Friend.— Please destroy the Will I made in favor of Thomas Hart.
“MARGARET McGILL.”
Indorsements on bapk:
“ Agnes Thomson
“ Bessie Gilmore.”
Agnes Thomson and Bessie Gilmore wrote their names on the back of the piece of paper, and it was then sent by her direction to her attorney and delivered to him the next morning by the husband of said Agnes Thomson at a hospital where the testatrix knew he then was as a patient, but she understood that he was about to be discharged therefrom. At the time of its receipt by Dr. O’Kennedy it was read to him, for it appears he had been forbidden to use his eyes. It further appears that he was not released from the hospital until
The claims of the contestants that the execution of the will was procured by fraud or undue influence and that she was under restraint, rest on suspicion and conjecture. There is no evidence tending to support any of those contentions or requiring the submission of the issues with respect thereto to the jury. The decedent was not on terms of intimacy with any of her relatives, and under the circumstances it was natural that she should leave the bulk of her estate to Hart who had lived with her and been her companion for such a long period of time. There is evidence tending to show that there were disagreements between them and that at times he was rude to her and did not treat her with due consideration, but for the most part this was after she made the will. There is no evidence to show that she was not in the full possession of her faculties or that she was under restraint when she made the will, which was prepared by her attorney who had been her trusted friend for many years and had prepared the former will under which he would have received many times
The point presented is whether the writing, in and of itself, constituted a declaration of revocation of the will ipso facto within the statute, or whether it was only intended by the testatrix that the will should be revoked when it should be destroyed by Dr. O’Kennedy as she requested or on the receipt by him of the communication in time to afford him an opportunity to destroy it before his agency was terminated by her death, in which circumstance it might well be argued that it was his duty to destroy it and that, therefore, it would be deemed destroyed. That the testatrix intended to leave him no discretion with respect to destroying the will appears by the instrument itself and by other evidence indicating solicitude on her part as to whether he had received the communication, and declaration by her expressing the hope that he had and stating that he would be glad to receive it for he knew she did not want the will to stand. That she believed that she had taken steps that would result in the destruction of the will is also shown by testimony with respect to declarations made by her after sending the communication to the effect that she felt happy and that she had done what she had wanted to do and what she had intended to do; and evidence that she remained happy from that time until her death. There is testimony to the effect that on the morning of July third, before the letter was prepared or signed, the testatrix inquired as to whether Dr. O’Kennedy_ had come out of the hospital and directed that he be sent to her room if he should call and
It follows that the decree should be affirmed, with costs.
Dowling and Philbin, JJ., concur; Clarke, P. J., and Merrell, J., dissent.
Dissenting Opinion
I dissent. Under the clear evidence of intent, I think the paper writing satisfied the statute; that the instruction to destroy was equivalent to destruction and hence admission to probate was error.
Merrell, J., concurs.
Decree affirmed, with costs.