112 Misc. 66 | N.Y. Sur. Ct. | 1920
Motion to set aside verdict and for a new trial. The motion is denied. The will gave the entire estate to one Alphonse Consolazion to the exclusion of testatrix’ two sisters. The findings of the jury, first, that the decedent was of unsound mind at the time of the execution of the will, and, second, the will was caused or procured by undue influence, were clearly sustained by more than a fair preponderance of the evidence. Mrs. Brobst had been committed to an insane asylum in 1908 by an order of Mr. Justice G-reenbaum. From 1908 down to the execution of the will in 1918 it appeared from the evidence of many disinterested witnesses that Mrs. Brobst had indulged excessively and for long periods in intoxicating liquors, and that when alcoholic stimulants failed to have an effect upon her she drank spirits of ammonia, veronal and other drugs. Without setting forth the testimony at length there was sufficient evidence to support the finding of the jury on this issue.
On the question of undue influence the evidence was even stronger. It appears that Dr. Consolazion picked up an acquaintance with Mrs. Brobst in 1915 on a street car in New York city while she was intoxicated. Just before this meeting she had made a will, which included her sisters in the distribution of her property. After her husband died, in 1916, his relations with her became more intimate; he visited her hotel nightly, and the jury, from the evidence, must have inferred that the relations between them were meretricious. He secured admission to her room in the Endicott Hotel,
It was shown that her continued dissipation, which he encouraged by supplying her with liquor, left her mind susceptible to his control. Mrs. Brobst died in 1919 of Bright’s disease. She had suffered from it for a period of four years prior to her death, and it is significant, too, that she was treated during this time by v Consolazion’s personal physician. The will in question was drawn by Consolazion’s attorney, who had never before acted for Mrs. Brobst, and had but a few months previous represented Consolazion and his brother, then hostile to her, in litigation. It was drafted in the office of this lawyer. It was not executed under his immediate direction in the customary manner of practicing attorneys, but was delivered to her unexecuted. In company with Consolazion she thereupon took it to the Hudson Trust Company for execution. Although not present at the actual execution, the testimony showed that he was in another room
Upon the trial the court regarded the order of commitment of Mrs. Brobst to an asylum in 1908 as not an adjudication that she was of unsound mind at that time, under authority of the recent decision of the Appellate Division, first department, in Matter of Barney, 185 App. Div. 782, 796. Laughlin, J., there said that such an order ‘' was undoubtedly competent to show that the testatrix had been so confined in the asylum and the jury might fairly infer therefrom that during that time she was of unsound mind. * * * The commitment was eso parte and was, therefore, not an adjudication or competent to show that she was insane at the time.” Citing Sporza v. German Sav. Bank, 192 N. Y. 8, 33, and other cases.
The question suggests itself as to the distinction
Probate denied.