197 A.D. 310 | N.Y. App. Div. | 1921
Rosa É. Spang died June 22, 1919, at the age of seventy-eight years. Charles H. Spang, her husband, died February 14, 1919, at the age of eighty-five years. The property of which she died seized was mostly property that came from her husband. By her husband’s will, after deducting some minor legacies, a daughter, Mabel, was given an annuity of $20,000 a year, and the widow was given the income from the balance of the property. After the death of the life annuitants the property was to be given in part for certain specific purposes named and the remainder to his executors to be distributed for charitable purposes as they might select. Under the laws of the State of Pennsylvania, of which State her husband was a resident at the time of his death, the widow had the right to elect to take under the will or to take one-half of the husband’s property.
By the paper sought to be proven as her will, Rosa E.
Charles H. Spang and Rosa E. Spang were married in 1898. The daughter Mabel was born in 1885. There is no question raised as to the parentage of this daughter and she was accepted both before the marriage of her parents and afterwards as their child and provided for as such. The codicil to this will simply provided for a legacy to Charles C. Lockwood of $10,000 and was executed immediately after the execution of the will, and in discussing the issues in the case the will and codicil will be referred to simply as the will of Rosa E. Spang. When this paper was offered for probate, Mabel Ancker, the daughter, filed objections alleging that the will was not executed with proper formalities, that the sayie was procured by undue influence and that the paper was executed at a time when Rosa E. Spang was of unsound mind and without testamentary capacity to execute a will. Objections were also filed by Marie T. Moore who was a legatee under a prior will. Mabel Spang, the daughter, was first married to a man by the name of Crome and after his death was married to a man by the name of Ancker. She was in Europe at the time of the death of her father and only reached America a couple of days before her mother’s death. She had had considerable difficulty in getting passports by reason
Upon the trial of the issues before the jury all questions were by the court withdrawn from the consideration of the jury except the question as to the testamentary capacity of the deceased at the time of the execution of the will and of the codicil, and upon that question the jury has found that the deceased had not testamentary capacity at the time she signed the paper offered for probate as her will and codicil. From the decree entered upon this finding this appeal has been taken by the executors named in the will.
In the briefs of counsel criticism is made on the one hand of Mr. Lockwood’s actions as bearing upon his interest in this case. I find nothing in the record, however, which justifies any adverse criticism. There was no effort on his part to obtain any advantage for himself or for any one else whom he represented. Mrs. Spang became suspicious of him and desired to change her attorney and he himself brought Mr. Wickersham into the case. On the other hand, Mr. Wicker-sham has given full recognition to any obligation which he might owe to Mr. Lockwood,"and himself procured the legacy of $10,000 to Mr. Lockwood to be inserted in the codicil of the will. Criticism is made of the form of the will which gave to these executors personally any property which might fail to pass thereunder by virtue of any statutes against the passing of property under a will to charitable institutions made within certain periods befor’e the death of the testatrix. The will as drawn contained no illegal provisions. Considerable criticism is made of the act of Dr. Chapin in excluding the daughter from her mother’s room when she came there just prior to her mother’s death. But this was done in accordance with the expressed wish and determination of the mother not to see her daughter, and it can well be surmised that any scene between them would have hastened her mother’s death. These executors in this will were all men of standing in the community.
This will was executed upon the day before the death of Rosa E. Spang. She was confessedly, at that time, in a very feeble condition. Within a few days she had had several attacks of heart trouble, which were apparently due not only to her age, but to a disease which was cancerous in its nature and which affected her whole system. Upon the night before she had had a very serious attack from which it was at times doubtful if she would recover. There is considerable evidence of her having expressed strong aversion to children, calling them little brats, and strong aversion to órganized charities,, and of her having expressed the belief that the moneys given for those charities never reached the persons sought to be benefited by the charities. And still the provisions of the will were in part for .the benefit of children and authorized the giving of these moneys by the trustees of the Rosa Spang Foundation to charitable institutions for distribution. These provisions in the will might have been found by the jury to have indicated a-change of purpose which is, at least, significant upon the mental capacity of the deceased at the time she executed the will, and the jury might have been in doubt as' to whether she fully understood its provisions, by reason of her physicial condition at the time she executed it. One of the facts to be considered in sending a case back for a retrial is the probability that a different conclusion will be reached upon a subsequent trial. In my judgment, the result of a new trial would be the same as that reached by the jury in the verdict here rendered.
In this recital I have not mentioned many other incidents to which weight is given by the physicians as indicating the mental lapses of the deceased and the senile dementia. It clearly cannot be said that the verdict is without evidence to support it, nor in my judgment can it be said that the verdict indicates passion or prejudice on the part of the jury. The law has given the right to determine the facts in these cases to a jury, and we are not authorized to reverse their finding merely because we might individually have reached a different conclusion.
Without further discussion the decision which we have
Clarke, P. J., Latjghlin, Dowling and Greenbaum, JJ., concur.
Decree affirmed, with costs to all parties payable out of the estate, and appeal of contestants dismissed.
See Wills Aet of 1917 (Perm. Laws of 1917, p. 410, No. 190), § 23; Intestate Aet of 1917 (Penn. Laws of 1917, p.'431, No. 192), § 1.— [Rep.