1 Pow. Surr. 550 | N.Y. Sur. Ct. | 1893
—John Wheeler, late of the town of Sandlake, in this county, died March 3, 1891, aged 86 years. He left surviving him no widow, child or descendant, brothers or sisters, but nephews and nieces and grand nephews and nieces, some twenty in number, his only heirs at law and next of kin. His wife died some fifteen years before him and after the death of his wife and down to the time of his own death, he lived on his farm in Sandlake in the family of his nephew, George P. Gardner. The deceased had taken his nephew into his family upon the death of his mother, Wheeler’s sister, when he was an infant only a few weeks old, and they lived together upon the farm for a period of more than fifty years.
The farm upon which he lived consisted of about 150 acres, the value of which is variously estimated from $5,000'to $8,000. He was also the owner of a small amount of personal property of tire value of about $1,500.
The instrument propounded for probate as his last will was executed September 22, 1890, about six months before his death. The will was prepared by his neighbor and friend, Andrew J. Smart, who also attended its execution. It was witnessed by two persons residing in the neighborhood, who had Imown the testator for many years. By this will the bulk of the testator’s property, which consisted of his farm, stock and farm ■equipments, was devised to his nephew, George P. Gardner, subject to the payment of $1,500. Legacies of $50 each were .given to some ten of his nephews, nieces, grand-nephews and grand-nieces, and two legacies of $100 each to the wife and daughter of George P. Gardner. It appeared that Mr. Smart drew and attended the execution of a prior will, in 1885 or 1886, which was destroyed at tire direction of the testator after tire execution of the will of September -22, 1890. All the legatees mentioned in the earlier will are also legatees in the will in question except Col. Silas Wheeler and John A.- Coons, both of whom died after the making of the former will, and except, also, Hiram Taylor, a grand-nephew of the deceased, who was given $1,200 under the will of 1885, and nothing under the
By the former will George P. Gardner and John A. Goons, since deceased, were named as residuary legatees and devisees, hut in the last will George P. Gardner remained as the sole residuary legatee and devisee.
By the former will George P. Gardner was given the farm and its equipments in the precise terms employed in present will, except that in former will he took the farm subject to the-payment of $2,500 instead of $1,500, as provided in the last-will. A legacy of $100 was given to each of the four children of the testator’s grand-nephew, Hiram Taylor, and a like sum was given to each of testator’s nephews and nieces, Col. S. Wheeler, Michael Wheeler, John C. Wheeler, Alvina Goewey and Zilpha .Fielding, and to his grand-nieces, Cora Metcalf and Teletta Upharn; each of these legacies was reduced to $50' under the last will.
Andrew J. Smart was named as executor in each will, but filed his renunciation after presenting the latter instrument for probate.
Hone of the contestants, except Hiram Taylor, a grandnephew; John C. Wheeler, nephew, and Zilpha Fielding and Lucy Metcalf, nieces, are mentioned as legatees in the present will or in the will of 18S5. The three last named nephews and nieces receive $50 less in the present mil than in the will of 1885.
The substantial difference between the will of 1885 and the present will, so far as the contestants are concerned, is the omisision in the latter instrument of a legacy of $1,200 to Hiram Taylor contained in the will of 1885.
The probate of the will is challenged by the contestants upon the ground, first, that- the testator did not possess testamentary capacity; second, that undue influence was exercised over the testator by George P. Gardner in procuring the present will.
I shall not attempt an extended analysis of the evidence, which is very voluminous, upon the question of testamentary
. It is well settled in this State that “no presumption of testamentary incapacity arises from old age alone. ISTorcan incapacity to make a will be inferred from enfeebled condition of mind, or body.”. Horn v. Pullman, 72 N. Y. 269; Van Guysling v. Van Kuren, 35 id. 70; Bleecker v. Lynch, 1 Brad. 458, 472;, Van Alst v. Hunter, 5 Johns. Ch. 148.
In the latter case the Chancellor says: “The control which the law still gives to a man over the disposition of his property, is one of the most efficient means which he has in protracted life to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been produced by fraudulent arts and contains those very dispositions which the circumstances and the situation and. the course of natural affection dictated.”
The true test of testamentary capacity is, did the testator have sufficient intelligence to comprehend his property, his relations to those who are or may be the objects of his bounty and the scope and meaning of the provisions of his will? If so, he was in law of sound mind and memory. Horn v. Pullman, supra; Delafield v. Parish, 25 N. Y. 10.
“It is not necessary that he should be able to collect all these in one review. If he understands in detail all that he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of the will.”' Wilson v. Mitchell, 101 Penn. St. 492, 502; Sehouler on Wills,, section 83.
“Hor is it necessary that the particular will and its provisions should have originated with the testator", provided ho understands and adopts and sanctions whatever disposition was. proposed and embodied in the instrument.” Tunison v. Tunison, 4 Brad. 138; Sehouler on Wills, section 233.
Considerable testimony was given by the contestants tending to show that the deceased was very feeble physically during the last years of his life; that he was afflicted with a hacking cough, had occasional lapses of memory, that he wandered off and was lost, on one occasion (the same year the will was executed), and was found in the field upon his farm, where he had fallen upon the ground and remained unable to rise. That upon that and other occasions he appeared dazed and confused and could not walk without assistance, and on occasions -complained of his head and said he could not remember as well ;as he used to. The family physician, Dr. Nichols also testified "that in his judgment his mind was impaired; that in his opinion the deceased was not of sound mind on the 22d day of September, 1891, but the doctor on further examination stated that he •could not express such an opinion disconnected from knowledge which he gained in attending the deceased professionally. This "testimony is> therefore, inadmissible, and was excluded. But if retained sufficient facts were not stated by him to warrant me in accepting this opinion even in connection with the eontestnats’ other evidence against a great body of testimony from "the acquaintances, neighbors and friends of deceased, who testified from personal intercourse wth him during the latter years -of his life, touching his health, intelligence, physical and mental vigor, as evidenced by his appearance, conduct and conversation, to the effect that not only about the time of the making of the will, but for a considerable period prior and •.subsequent thereto, the testator possessed a large measure of intelligence and mental vigor for a man of "Lis years; that he was affected with no delusions, that
Upon the whole, then, I conclude, in the light of all the testimony and the rules of law applicable thereto, that the testator was of sound mind and memory at the time of the execution of the will. ■'
The introduction of this testimony was strenuously resisted upon the ground that the declarations or admissions of one of several legatees are not admissible to impeach the validity of a will, where such admissions may affect others not in privity with the party. In support of this position they cite: Matter of the Will of Baird, 47 Hun, 77, 14 St. Rep. 172; Brush v. Holland, 3 Brad. 240-242; Shailer v. Bumstead, 99 Mass. 112, 124.
Suirogate Bradford, in the case of Brush v. Holland, supra, while holding such declarations competent, insists that they .should have little weight as reflecting the mind of the person making them, since they may spring from a boastful spirit. But it is not necessary to determine the, weight of this testimony here.
Having decided to admit this evidence, it is important to consider its effect in determining the burden of proof. Ordinarily when it has been well proven that a will has been executed with due- solemnities by a person of competent ■ understanding and apparently a free agent, the burden of proving that it was executed under undue influence is upon the party who alleges it. Tyler v. Gardiner, 35 N. Y. 559; Baldwin v. Parker, 99 Mass 79, 85: In re Will of Martin, 98 N. Y. 196; Matter of Green, 67 Hun, 531, 48 St. Rep. 450.
But it seems to me, where, as in this case, interest and opportunity are shown; and testimony tending to show a disposition upon the part of the person charged with undue influence has been introduced, and it further appears tha.t the party charged
The presumption which the law raises under such circumstances is one of fact and not of law and may be repelled. Marx v. McGlynn, 88 N. Y. 371.
The proponent in this case insists that be has assumed the burden and furnished ample evidence repelling any and every imputation of fraud or undue influence on his part, and shown that the instrument propounded was the free act and will of the testator. In support of this contention lie insists that the testmony shows clearly and satisfactorily, first, that the will was executed in due form with all the solemnities required by the statute, by a person of sound mind; that it was made after-careful explanation and consideration of every paragraph of the will; that several hours were spent in its preparation by the-testator and the draughtsman upon two separate days; that it was carefully read to him twice, upon different days, before its-execution, and received his approval; that the history of the-drafting and the execution of the will show that no undue influence was exerted by anyone at thafc time; in addition thereto-the draughtsman testified, “I think when I arrived there he (testator) knew what he was going to do.” Second, that the will in question was drawn along the lines of the former will prepared five or six years before by the same draughtsman, without the knowledge of Gardner, when the testator had the aid of an old and tried friend, and was engaged several hours
To this contention the contestants reply that, assuming that
This contention has much force, and deserves and has received careful attention. But it seems to me that it is met by this consideration. If it was not true, as stated and believed by the testator, that Hiram Taylor was a drunkard' and that “his money would be likely to be drunk up in nim,” it was in the power of the contestants to show that" fact. They failed to do so, although ample opportunity' was afforded upon the trial and even after the trial, a proposition on the part of the surrogate to open the casé and take further testimony upon that point, if either party desired, was declined. It is clear that the deceased believed the charge; and acting upon that belief it certainly was not an unreasonable act to "exclude Hiram Taylor from any share or portion of his property.
Although I have held that the burden of proof was upon proponent to repel the presumption of undue influence arising from Gardner’s declarations and his somewhat peculiar relations t,o the deceased in this case, yet the proponent having shown that the testator held and gave a sufficient reason for the change in his will, 'it seems to me that it then devolved upon tire contestants, in order to fasten their charge of undue influence upon George P. Gardner, to show not only that the charge was untrue, but that George P. Gardner, knowing it to be um-
George P. Gardner could not testify under the law as to' v/hat he did or did not tell the testator upon the subject, but it-is very obvious that the testator, who was upon good terms with his neighbors and in constant intercourse with them and with the men who were employed upon the farm-—of whom there were several every year’—had ample opportunity to learn of the character and habits of Hiram Taylor, who resided in the same neighborhood, from others beside George P. Gardner. So that no inference is necessarily drawn from the fact that Gardner and the deceased held and expressed the same opinion concerning the habits and character of Taylor, that the testator received his information upon the subject, whether true or false, from Gardner.
The law applicable to this branch of the case seems to me to be exceedingly well stated in Schouler on Wills, section 238:
“If the disposition appears on the whole a just and reasonable one, or even such as the testator would naturally have made under all the circumstances with a due perception of the act engaged in, the property possessed and the fit claimants to his bounty, little remains to urge against the will unless it can be positively shown that the will notwithstanding was not that of of tlie testator.”
And I venture to add the following—that where a satisfactory reason is given by a testator for a change in his will, the law will not presume that the change was produced by undue influence upon the part of another, even though such person be solely benefited thereby, but there must be absolute proof to establish the charge.
In conclusion I am satisfied that the deceased intended that the property which he had accumulated by so many years of patient toil, industry and economy, should be received and enjoyed by his foster son, who was the principal beneficiary in his former will, drawn beyond question when he was- competent
Let proper findings be made,- and a decree entered accordingly.