62 N.Y.S. 698 | N.Y. App. Div. | 1900
In determining this appeal we have had in mind the responsibility imposed upon us, that where an appeal is taken upon the facts the appellate court has the same power to decide the questions of fact which the surrogate had (Code Civ. Proc. § 2586), and we have considered the testimony taken before the surrogate and based our determination upon it.
The sole objection to the will relied on by the contestants in the court below and npon this appeal is that the will was procured by undue influence; and the contestants ask that the principle that where an instrument is obtained in favor of one holding a confidential relation to the person who has executed it there is a presumption of fraud or undue influence, and that the burden is cast upon the person occupying that position of repelling that presumption. Without such a presumption we think the case is entirely devoid of proof to justify a finding that any one influenced the testator in the execution of the will; and such was the opinion of the surrogate upon determining the question when it was before him. We are not concerned with the extent of the presumption which exists in relation to voluntary grants in favor of or' gifts to persons-occupying relations of trust and confidence toward the grantor or donor. There is a well-defined distinction between instruments of the character mentioned and testamentary dispositions of property, which is well recognized and constantly applied in proceedings to determine the validity of instruments testamentary in their character ; and this distinction arises from the very -nature of a testamentary disposition. The natural objects of a testator’s bounty are those who have been the closest and nearest to him during his life, and from whom he has received the most attention and affection.
The relation which existed, therefore, between the testator and his eldest son raises no presumption of fraud or undue influence, and is at most a circumstance to be considered with the other facts in determining whether the charge that this will offered for probate was obtained by undue influence was proved.
There is also a question raised as to the burden of proof. It is undoubtedly the rule that the burden of proof is upon the proponent
Turning to the facts proved in this case, it appears that the will was executed on the 20th of September, 1894. The testator was a man eighty-six years of age, in good health, and in full possession of his faculties. He had led an active business life, and had retained the control and management of a. large estate acquired by his own industry and ability. He was a director or officer of several large and important financial institutions, attending regularly to the business of those institutions, making investments both for them and for himself with judgment and sagacity, and exercising great influence among his acquaintances and those in control of the institutions jvith which he was connected. He maintained his own household, having with him his son Henry, who is one of the contestants, managing it with intelligence and care down to the minutest details. He lived about three years after making the will, and down to his death retained his position in these institutions without indication of mental decay, attending the meetings of the boards of which he was a member; and even on the morning of his death, which occurred on Hovember 11, 1897, he attended a meeting of the directors of an important bank, of which he was óne, and took part in the management of its affairs. In 1892 a will was prepared by an attorney with whom he had been acquainted for many years, who had acted as his professional adviser, and who was
This will, after giving certain specific bequests of very moderate amounts in comparison with the amount of the testator’s estate, gave the. residue of his estate to his executors in trust, to receive the income thereof during the lifetime of his two sons and to apply the net amount of such income to them during their lives in equal shares. In the event of his son William, who had children, dying first, then during the life of his surviving son one-half of the income was to be paid to the use of his son Henry, the survivor, and the other half of such income to the wife of his son William,.if living, and if not, then to the use of William’s children during the continuance of the trust; but should Henry die first, then the whole income was to be applied to the use of William during his life, and upon the decease of the survivor of his two sons, the trust was to cease, and all of the property held in trust was to be divided in equal shares among his surviving grandchildren and the widow of his son William.
The provisions of this will certainly do not appear so unfair or unjust as to justify any presumption against it. The evidence is that both of the. sons were dependent upon their father for support. The granddaughter, the child of his deceased daughter, was married and apparently provided for, and in the event of her surviving her two uncles she was to share with the testator’s other grandchildren in the distribution of his estate. It is difficult to conceive of a will being executed under conditions which would
But what was that relation ? The proponent was the testator’s eldest son. The testator had contributed a considerable sum of money to enable this son to go into business. ' He had contributed ■capital to various firms of which the proponent had been a member, both in giving the proponent money to supply his capital and becoming special partner in firms of which the proponent was a member. It would appear that the proponent had been unsuccessful in business, and that a considerable amount, if not the whole sum contributed by the testator, had been lost, and that the testator had paid considerable sums to discharge this son’s debts and for his support.' The amount thus contributed is disputed by the parties, but it does not appear to be material. During the latter years of the testator’s life, and after the proponent’s failure in business, the son had assisted in attending to the details of the testator’s business, and the testator had given him an allowance with which he supported his family. It also appeared that the testator had supported his other son Henry, and had also contributed to the sup
We think, therefore, that the decree below was right, and it is affirmed, with costs.
Van Brunt, B. J;, Barrett, Rumsey and McLaughlin, JJ., concurred.
■ Decree affirmed, with costs.