110 Misc. 456 | N.Y. Sur. Ct. | 1920
The decedent died on the 4th day of February, 1919. It is alleged that on January 31, 1919, at the age of seventy-three years, she executed an instrument which is now propounded as her last will and testament. She left her surviving as her only heirs at law and next of kin two daughters and one son, and by the terms of the propounded paper all of her property which remains after the payment of her debts and funeral expenses is bequeathed and devised to one of her daughters, the proponent herein. The latter is also nominated in the document as the executrix of the same, with the provision that she shall not be
The son of the decedent has not appeared in the proceeding and has taken no part therein except that he has testified as a witness called by the proponent. The other daughter of the decedent interposed an answer containing objections which, in addition to the usual allegations, contained one to the effect that the decedent was at the time of her death a resident of the county of New York. It appeared that the intention was to challenge the jurisdiction of the court by the last named objection. Upon the hearing, however, counsel for the contestant withdrew the same, so that I am proceeding on the assumption that it is no longer contended that this decedent was not a resident of the county of Bronx and that it is conceded that I have full jurisdiction in the matter at issue.
Upon the testimony produced before me I am satisfied that the factum of the document has been established. The proceedings attending its execution are testified to by three witnesses, one of whom is an attorney of many years’ standing, which of itself has been held to create some presumption that the formalities of execution were complied with. Matter of Cottrell, 95 N. Y. 329 ; Matter of Nelson, 141 id. 152,157; Wyman v. Wyman, 118 App. Div. 109; affd., 197 N. Y. 524; Matter of Kenney, 179 App. Div. 258, 261. As to the allegation of undue influence being “ an affirmative assault on the validity of a will, * * * the burden of proof does not shift, but remains on the party who asserts its existence.” Matter of Kindberg, 207 N. Y. 220, 229; Matter of Ruef, 180 App. Div. 203; affd., 223 N. Y. 582. Mere opportunity to exercise undue influence does not of itself warrant an adjudication that it was availed of. Cudney v. Cudney, 68 N. Y. 148; Post v. Mason, 91 id. 539; Matter of Fleischmann, 176
There remains then to be considered the final and the most seriously contested issue, whether or not the decedent at the time of the execution of the instrument had testamentary capacity.
It appears from the evidence produced that the decedent, her husband and three children resided together until the proponent was between seventeen and nineteen years of age, and that thereafter the decedent, her husband and her remaining two children constituted the household until about the year 1900, when the decedent was removed to a sanitarium at Hornellsville, N. Y. The testimony is that she remained there some time and then came home, one of the witnesses stating u as the doctor said, cured.” Thereafter she continued to reside with her husband and her two children until 1904, when she was removed to a sanitarium at Stamford, Conn., where she remained until the year 1909. From Stamford, Conn., she was removed to the Middletown State Hospital at Middletown, N. Y., where she remained until the 5th day of April, 1915.
There is no evidence of her condition at the time that she was at the sanitarium at Hornellsville. As to her condition while at Stamford, one witness testified he had been a consulting surgeon at the sanitarium in question and had seen the decedent at the sanitarium at least once a year during the time that she was there. He states that she was suffering from manic depressive insanity, testified to her actions, conversation and conduct by which the disease manifested itself, and which it is not necessary for me to detail here, and gives it as his opinion that patients suffering from the ailment in question might for a number of years have a normal condition, but that in the decedent’s case she was suffering from the maniacal form in which a mental deterioration with considerable weakening of
The order appointing the contestant the committee of the person and property of the decedent hereinbefore referred to, dated February 13, 1915, was entered in a proceeding brought by the superintendent of the Middletown State Hospital while she was an inmate there, under the provisions of section 2323-a of the Code of Civil Procedure after notice given to the decedent personally, to her daughter, the contestant, and to the superintendent, stating the time when the application would be presented to the court. It recites, among other things, that the decedent was duly committed to the hospital in question as an incompetent person on the 17th day of May, 1909, and it then provides that the contestant ‘ ‘ be and she hereby is appointed committee of the person and estate of the said Ella Gr. or Ella B. Prentice, who is an incompetent * * *.” Upon this order a commission was duly issued to the committee in question.
While it was stated in Matter of Barney, 185 App. Div. 782, 796, that: “ The commitment was ex parte and was, therefore, not an adjudication or competent to show that she was insane at the time,” the alleged incompetent in that case had been committed by two police justices in 1860, and it appears that no commit
The proceeding under section 2323-a of the Code was constitutional. Matter of Walker, 57 App. Div. 1; Sporza v. German Sav. Bank, 192 N. Y. 8. The order appointing the committee, while not conclusive evidence of the incompetency of the testatrix, was nevertheless prima facie evidence of such incompetency at the time that it was made (Hart v. Deamer, 6 Wend. 497; Matter of Coe, 47 App. Div. 177; Matter of Widmayer, 74 id. 336; Rider v. Miller, 86 N. Y. 507; Schoenberg & Co. v. Ulman, 51 Misc. Rep. 83), and this is true, in my opinion, whether the order appointing a committee was made after a hearing before a jury in the nature of a proceeding de lunático inquirendo or after proceedings brought under section 2323-a of the Code. The court would have had no authority to appoint a committee unless the person in question was incompetent. As was said in Matter of Walker, supra: “ The theory of these provisions seems to be that the question of incompetency may, in the discretion of the court of justice, be regarded as sufficiently determined by the original commitment to a State institution, and his remaining still an inmate thereof.”
No claim was made in the present proceeding that there was any irregularity in the commitment, and. while the trial fails to disclose the proceeding upon
We have, then, the testimony of the three witnesses referred to as to her condition at Stamford and at Middletown, which stands uncontradicted, and establishes to my satisfaction that the decedent was insane during the time she was at Stamford and Middletown prior to February 13,1915, and we also have the order appointing her committee which is prima facie evidence, not in any way rebutted, of her incompetency on said last mentioned date, and leads me to the conclusion that she was incompetent to manage her affairs at that time.
Having reached the conclusion that such a condition has been established, a presumption of its continuance arises subject to being rebutted by evidence showing that when the document was signed she had mental capacity to execute it either because she had recovered or because it was so executed during a lucid interval, but such evidence should be clear and satisfactory. Matter of Widmayer, supra, citing Delafield v. Parish, 25 N. Y. 9; Rollwagen v. Rollwagen, 63 id. 504; Cook v. Cook, 53 Barb. 180; Matter of Van Den Heuvel, 76 Misc. Rep. 137, 148.
The conceded acts of the proponent in obtaining the parole of her mother and moving her from place to place, without notice to the committee, of whose appointment she had been advised; in placing her to
As to her condition between April 5,1915, and January 1, 1919, the evidence is very voluminous, and it would be impracticable and unprofitable to quote therefrom at length. Some witnesses state that she read the papers and conversed with them practically
We now c„ome to the last or final period, beginning with January 1, 1919, and ending with her death. Three physicians attended the decedent at various times during that period. One of these was the family physician of Mrs. Donahay, with whom the decedent boarded, and of the latter’s daughter. He had been summoned by her and called on decedent for the first time on January 1, 1919. He testified that he found her in bed, helpless and semi-conscious; that she could only be aroused by thorough shaking; that he spoke to her but could elicit no reply except that she turned her head and opened her eyes; that on January seventh he called again and found her in practically the same condition, except that upon one or two occasions, when Mrs. Donahay asked her a question she said “yes.” This, he says, she could not have done on his first visit. On January twentieth he called again, and for
The last physician who attended the decedent was also unacquainted with any of the parties, and I believe unacquainted with Mrs. Donahay and her daughter, and was called because their family physician aforementioned could not be reached. He testified that he attended her on January thirty-first after midnight, which, it will be observed, was the day or immediately after the day on which the will was drawn, and from that time until her death. He stated that on that occasion she had a quick pulse and suffered from paralysis of the bowels; that he did not take her tern
Another medical witness, Dr. Stern, said that he saw her some time between January twenty-eighth and January thirty-first, but it was subsequently conceded that the correct date was January 25, 1919; that he is the personal physician of the proponent, and was asked by her to examine her mother; that she sat in a chair in the parlor; that her answers were monosyllabic, but that she gave relevant answers; that she said yes or no to all questions; that she appeared to be normal, no paralysis, spoke hesitatingly, but he could hear her clearly; that she appeared to be absolutely rational; that he did not examine her as to her mental trouble, and that her difficulty at that time was an intestinal condition. This physician attended her only once.
The testimony as to the preparation of the will may be briefly summarized as follows: On the 29th day of January, 1919, two days before the will was signed, the decedent having stated that she wished to write something, an attorney who resided in the neighbor
An examination of the physical appearance of the testatrix’s signature discloses that while a part of the
It is evident that the will was not prepared after a conference of any length between the decedent and the scrivener, and while the latter, a reputable attorney favorably known to the court, whose testimony I believe, undoubtedly did his best under the unfortunate. conditions prevailing to ascertain by the questions put to the decedent whether or not she was competent, and honestly and conscientiously reached the conclusion that she was, he of necessity did so without any prior acquaintance with her.
It is urged that the decedent was angry at the contestant because she believed the latter was responsible for having sent her to Middletown, and that after the proponent got her out she was in great fear lest the contestant put her back. There is no evidence that she was induced to this belief by the proponent, but there is evidence that the proponent herself believed, or at least said to one of the witnesses that she believed that her sister was responsible for putting her mother in an insane asylum.
I have no doubt that in decedent’s unfortunate mental condition she did believe that her • committee was antagonistic to her and felt correspondingly kindly toward the daughter who took her out of the institution and who showed her kindness and attention which
Section 2614 of the Code of Civil Procedure provides that before admitting a will to probate the surrogate must be satisfied with the genuineness of the will and the validity of its execution, and that it must be admitted to probate if among other things it appears that the testatrix was in all respects competent to make a will. The burden of showing that the testatrix was of sound mind and memory at the time of the execution of the will is upon the proponent. Code Civ. Pro. § 2614; Decedent Estate Law," § 21, Laws of 1909, chap. 18, and constituting chapter XIII of the Consol. Laws; 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, supra; Matter of Cottrell, supra; Matter of Martin, 98 N. Y. 193, 196. In the pending matter, after a careful review of the evidence, I reach the conclusion that this burden has not been sustained and that in consequence probate must be denied.
The motion to dismiss the objections made at the close of the case upon which I reserved decision is denied as to the objections to the effect that the propounded paper is not the last will and testament of the decedent and that the decedent did not have testamentary capacity, and granted as to the remaining objections and an exception awarded to each party as to so much of the ruling as is adverse to her.
Decreed accordingly.