30 N.Y.S. 835 | N.Y. Sur. Ct. | 1894
The testatrix died at about eleven o’clock on January 12,1892, leaving no real estate, but personal property, as alleged in the petition, of the value of about $600, and leaving no husband or next of kin and no heirs. Her former husband, Martin Fox, died intestate about seventeen years before, leaving by his first wife two sons, residing in Ohio, and one daughter, said Honora Fox, the contestant, residing in Jamestown, N. Y.
Warren D. Shaw ana wife conveyed to Martin.and Bridget Fox, for the consideration of $150, by deed dated May 14, 1863, about one-quarter of an acre of land in two adjoining village lots on the “ Warren road,” so called, leading from the. then village of Jamestown to Warren, Pa., and said Bridget
The north half of said premises, of which the use was reserved to the said Bridget Fox during her life, had a small house or shanty, twelve by sixteen feet, thereon, of little value, with two rooms, which she occupied at the time when said deed was made and up to the time of her death, on January 12, 1892.
Said Warren D. Shaw and wife conveyed to said Bridget Fox another village lot, adjoining the above two lots, on April 20, 1860, when she was a single woman, unmarried, and after her marriage to Martin Fox, and after his death, she conveyed the same to John Davidson, who was a witness to her alleged will here contested, for $600, paid down.
The decedent signed the instrument propounded as her last will, by making her mark, at about four o’clock in the afternoon of the same day she died, being about seven hours before her death, and by such will, by its terms, she devised and bequeathed to the Rev. Richard Coyle, rector of the Catholic church in the city of Jamestown, all her real and personal estate, subject to the payment of her debts and burial expenses, and appointed said Rev. Richard Coyle sole executor thereof, and revoking all former wills by her made, and the same was witnessed by James I. Fowler and said John Davidson, both of Jamestown, N. Y.
¡Notice of probate of such alleged will was duly served upon the attorney-general of the state and the county treasurer of said county, neither of whom appeared in proceedings on probate.
The above-named Honora Fox made answer contesting the will, upon the grounds that the testatrix was of unsound mind
It appeared from the evidence on part of the contestant that the decedent had, a few minutes past eight o’clock on the evening of January 11, 1892, signed .another instrument purporting to he her will, which was witnessed by Margaret Donlon, wife of John Donlon, O. W. Creal and Mary Higgins, and such alleged will purported to give, devise and bequeath all her property, both real and personal, to the above-named contestant, Honora Fox, commonly called “Nora,” and appointing said Margaret Donlon executrix thereof.
The learned counsel for the proponent claimed that the deed of this property by Warren D. Shaw and wife, dated May 14, 1863, to Martin Fox and Bridget Fox, his then wife, conveyed the property to them as joint tenants, and that upon his death she became the owner of the property in fee as his survivor.
The learned counsel for the contestant claimed that Martin and Bridget Fox were only tenants in common, and that upon his death the property descended to his heirs, Honora, William and Michael Fox, children by his first wife.
I hold and decide that under the common-law rule applicable to this case, that when land is conveyed to husband and wife they do not take as tenants in common or as joint tenants, but each becomes seized of the entirety per tout and not per my, and that upon the death of either the whole descends to the survivor. Bertles v. Nunan, 92 N. Y. 152, overruling Meeker v. Wright, 76 id. 262; Zorntlein v. Bram, 100 id. 12.
I hold that upon the death of Martin Fox intestate, his wife Bridget became seized in fee of absolute title to the entire premises.
James I. Fowler, attorney for the petitioner and one of the witnesses to the will of January 12, 1892, testified that he drew the will in question; that he went down to the little house of the decedent in the afternoon of the day the will was drawn; that he went into the room up to the bed and asked Mrs. Fox if she knew him, and she reached out her hand and
On his cross-examination by Mr. Sessions the witness testified : That he went up there Avitli the idea of making the will .in the forenoon; that Mr. Davidson requested him to go up, and that Mr. Davidson told him the old lady had sent down for him to come up and draw her Avill; that this was on ■January 12, 1892; that he went up there and made inquiries regarding her health that morning and rapped at the door on the outside; that Mrs. Margaret Donlon came to the door and .stepped out and closed it, and that he told her that he was there to draw Mrs. Fox’s will, and that she made some reply which he did not understand; that he asked her, “ Isn’t Mrs. Fox able to ? ” and that she said, “ Oh, no ; ” that she was not in her right mind and could not see anybody, and some other •expressions ; that he said, “ Why, I understood she sent for me; ” that Mrs. Donlon said her -will was made; that he said,
Witness further testified : “ The expression of the old lady to me was that all she wanted was to carry her through; that a divil a one of them had ever darkened her doors; I didn’t ask her who or what; I thought the old lady knew what she was saying; on the sale of the land subsequently made I think she handed me the papers she received, or some notes, and asked me to put them in my safe and keep them for her; also, what Mr. Davidson had, which I still hold.” Witness further testified, on cross-examination by Mr. Sessions, that he did not think, considering the age of Mrs. Fox, that in the sale to Mr. Wood she reserved one-half the life use of the property that according to the rule of probabilities it would affect the value much; and that the land had been sold several times for taxes, and that a party who came to him said that parties had been trying to sell him tax titles.
John Davidson, the other subscribing witness to the will dated January 12, 1892, testified that he had resided opposite to Mrs. Fox’s house for thirteen years, and had known her all that time; that .he saw her make her mark to the will presented, dated January twelfth, and was present when she answered, as Mr. Fowler asked her, to whom she desired her property to go, and she said “ Father Coyle,” and she acknowledged that to be her last will and testament, and he was present when it was read over by Mr. Fowler, and when she asked him to
The witness, on cross-examination, testified: That he had lived beside Mrs. Fox for thirteen years, and that he had bought a piece of land of her tvrelve years before, one common town lot, .of which he could not state the width ; that he gave her $600 for it, and that the money was then (at the time of testifying) in Mr. Fowler’s hands, $301.75; that he was present when it was paid; that he left the money with Mr. Fowler, and he had paid the balance of the $600 to the bid lady when she wanted it; that Mrs. Fox had handed the money to witness and said she wanted him to keep it, and that he said that as Mr. Fowler had a safe, it would be better to give it to him; that the old lady came over and got a few dollars as she wanted it. - Here Mr. Sessions, presenting a check to witness, dated December 12, 1880, asked witness: “ Did you give that check on the bank for $50 and interest ? ” ^Answer, “Yes, sir, that was about the time I bought the lot.” The witness testified that the money was not in the bank to pay the check; that the check had never gone to the bank, and that he had paid the money to her; that he had signed the check for her. The check was offered- in evidence and read under objection by Mr. Fowler that it was immaterial and improper evidence, with exception to proponent, and the following is a copy of .the check read in evidence :
*671 “ Jamestown, N. Y., Deo. 12, 1880. “ Chautauqua County National Bank.
“Pay to the order of Mrs. Fox......■...'.......or bearer
Fifty...........................................Dollars
and interest at six per cent for value received.
“ (Signed) John Davidson.”
The witness further testified that Mrs. Fox owned the lot she lived on and that there was a house on it; that she sold it in November, 1890, to John Wood; that the lot was of the same width as his lot; that she lived on that lot in a shanty twelve by sixteen feet, with two rooms in it, one a small bedroom ; that she had no other real property besides that lot, and that he did not know what Wood gave for it; that the money she received for it was in Mr. Fowler’s hands; that there were back taxes to be paid on the lot and that Mr. Fowler had the money. On the redirect examination by Mr. Fowler witness testified that from the time he lived there the old lady had called upon him for what money she wanted for her living; that there was no one else° to look after her and do for her; that he had purchased for her every year since he had bought the lot; that he had settled on his deal and looked over with hér as to what was owing during that period, and that the money that Mr. Fowler then had was the balance that was her due when they looked over the last time; that she had a bond and mortgage and had discharged that, and had taken a note; that he never saw John Donlon there to help or assist the old lady but once, when Donlon brought some wood there; that John Donlon had moved the things out of the house after her death and had got the key to get the goods and had taken them; that Father Coyle told Mr. Conway to get the wood and things there; that the witness had seen Donlon taking the things away; that the first he knew of Mrs. D onion’s being there to take care of the old lady was when she was sick; that Martin Fox had two sons and one daughter by his first wife and that Bridget Fox had no children of her own.
Such authority could not be fairly claimed from the conversation between Davidson and Mrs. Fox at her house before she was taken so sick, on the occasion in which she sent for him to come over there, when she handed him some little money she kept in a hox and said to him, “ I want you to keep that,” and when he told a lady that was in the house to come and see what was in the box, and Davidson further stated, “ I said, what do you want to do with your money you have ? ” and she said, “ To Father Coyle, and her bed to Mrs. Callahan.”
There was no evidence of the amount of money in the box. Mrs. Fox evidently intended to have Davidson pay that money to Father Coyle, and evidently Davidson so understood it, because no other money was mentioned, and if he understood differently why did he not instruct Mr. Fowler to insert in the will “ the bed to Mrs. Callahan.”
The evidence of Davidson, given without objection, about having paid the check for* fifty dollars dated December 12, 1880, then held by the decedent, and also about his alleged settlement with her for $298.25 loaned to him by the decedent from the balance of $600 purchase price of the land she sold to him in 1880, would not be admissible in evidence against the estate on judicial settlement of the accounts of
It appeared that when Mr. Fowler went to the house of Mrs. Fox, on the forenoon of the day she died, with the will he had previously drawn as directed by Mr. Davidson, he was immediately followed by John Wood, holding a pen and ink in his hand, and who purchased one of the three lots of her in November, 1890, for $300, accompanied by Davidson and Thomas Conway; that Mr. Fowler, after his talk with Margaret Donlon, when leaving, met the three above-named persons at the fence in front of the house, where a short conversation was held between them, and all went away except Conway, who was a brother-in-law of Mrs. Fox, and who returned and went into the house and remained there until between three and four o’clock in the afternoon, going out and in but once or twice and without making his business known. Mrs. Fox, in the meantime, was lying on the bed apparently unconscious and could not take any nourishment, not even a teaspoonful, and she had been in that condition about nine hours previously and continued so until between three and four o’clock in the afternoon, when she called for a drink of water, and Conway, being in the adjoining room and hearing her call for water, went into the little bedroom and asked her if she knew him; that Mrs. Fox tried to talk and made some motion, and Conway kept asking her if she knew him; that after a while she said Tes; that he went over across the street for Mr. Davidson, who came back with him; that they then asked Mrs. Fox if she knew them ; that they kept at her until finally she talked to them, and then Conway went after Mr. Fowler, and Davidson said nothing more to Bridget, but remained in the kitchen while Conway was gone; that after awhile Conway returned with Mr. Fowler and they went into the bedroom. The evidence of the two subscribing witnesses to the alleged will as to what then occurred is fully stated above.
C. W. Creal and Margaret Donlon, who were witnesses to the first will, and John" Donlon, husband of Margaret Donlon,
It appeared that Margaret Donlon was there for nine or ten days during Bridget’s sickness, doing the work in the house and assisting in the care of Mrs, Fox, and that she was requested to go there by Thomas Conway, who told her that he had heard that Bridget was very sick.
It appeared from the evidence on the part of the contestant that the decedent had in her possession at the time of her death, among her papers, aside from the above check for fifty dollars, fourteen tax receipts signed by tax collectors, dated at Jamestown, N. Y., from 1865 to 1880, both inclusive, amounting to forty-six dollars and fourteen cents, of which seven .were receipted as paid by Martin Fox and seven by “Martin Fox’s heirs,” of whom Honora was one and his two sons in Ohio were the others.
It appeared in evidence that Bridget Fox purchased one of the three lots of Warren D. Shaw and wife on April 20,1860, taking the deed in her own name and before her marriage to Martin Fox ; that after her marriage she and her husband, on May 14, 1863, purchased the other two lots adjoining the other lot in partnership under an agreement between them that each should pay one-lialf the purchase price of $150.
That Martin Fox and his three children above named paid one-half of the purchase price and Bridget Fox the other half, and that William Fox, the youngest brother of Honora, assisted in building thé little house on the property, and that Honora assisted in paying for these two lots and also in paying the taxes thereon up to about the time she had a sunstroke about the year 1871, which greatly injured her mind and body, when she was removed to the county hospital or poorhouse at Dewittville, in said county, and remained there until 1891, during which year the insane persons in said hospital were removed to the state asylum in Buffalo, N. Y.
It also appeared in evidence that Martin and Bridget Fox lived together very happily after thein marriage in their little house on Warren street until his death in 1875, and that Honora lived with them and worked out by the week in Jamestown until removed to the hospital, using a portion of her wages in paying taxes upon the property, and that John Donlon, who was a nephew of Martin Fox, resided one year with them, being about the year 1869. It appeared in evidence that after Bridget had sold the two lots to John Wood in 1890, and after Honora had been taken by John Donlon to his house in 1891, that he (John Donlon) called upon Bridget Fox to assist him in the support and care of Honora, and that Bridget told him that she would not, but ¿hat she would let Sonora home every dollar she had at her death.
The evidence shows that very friendly relations existed for many years, preceding the death of Bridget Fox, between her and John and Margaret Donlon, and that they visited back and forth often ; Honora’s two brothers, Michael and William, moved to Ohio about thirty years ago and never returned, except that William came back to attend his father’s funeral and to remove his body to Ohio for burial; it appears quite evident that in the testimony given by Mr. Fowler about her friends and relatives having never darkened her doors, the old lady referred to these two stepsons, William and Michael Fox, whom she had not seen for about twenty-eight years, except William, who came to attend his father’s funeral and to take his body away to Ohio ; certainly she could not have referred to their sister Honora, toward whom she always had the most kindly feelings; neither could she have referred to her hus
It should be borne in mind that Mr. Fowler, who drafted the second will of the decedent, and was a witness to it, and who had acted for many years as her friend and adviser, and in whose integrity, learning and ability she justly had great confidence, and who had always known Bridget as a remarkably strong woman,'both in body and mind, but who had not seen her during her last and only severe illness, and had had no knowledge about her illness before going there on the morning of the 12th of January, 1892, except what he had learned from Margaret Donlon, John Davidson, Thomas Conway and John Wood; that, as he testifies, he went away from the house that morning not satisfied that the old lady was incompetent to make her will; that he drew the will that morning before going to see her from what others had told himthat he saw her for only a few minutes at the time the will was signed in the afternoon; that nothing was said by her at that time about her property or about having made a will twenty hours previously entirely different in its provisions from the one here offered for probate ; that it would seem to appear that Mr. Fowler could not have had hardly sufficient opportunity to judge correctly her capacity to make a will.
The evidence on the part of the contestant shows, I think, that Mrs. Fox was in a far better condition physically and mentally when she made her first will than when, twenty hours later, she made her second one; she sent by Margaret Donlon, who was taking care of her at the time, to see Mr. Creal to come and draw her will; he was sent for because he lived on the second street from her residence and nearer than Mr. Fowler; that he came, and the other witnesses were in the litfle bedroom, and when the will had been drawn she raised herself from the pillows and sat rip straight with the pillows behind her and with no one to support her, and entered into conversation and stated that she wanted her will drawn in their presence, and in answer to the questions put to her by Mr.
Mr. Creal testified that Mrs. Fox appeared very bright in her mind at the time, he thought, for one suffering so much pain as she was. That he asked her where the pain was and she put her hand to her left side; that he thought she was of sound mind and memory and competent to make a will; that Mrs. Donlon gave her a cup of milk when she first sat up in bed before she signed the will; that she declared it to be her last will and testament in presence of witness and in presence of Margaret Donlon and Mary Higgins, and requested them to sign it in her presence and in the presence of each other; that when he first went into the room where Bridget Fox was, Mrs. Donlon was present, and Mrs. Donlon then said in presence of witness that Father Coyle had been up there and that she (Bridget) had made her peace with God, and that she had requested her last will and testament should be in favor of Honora; that after the will was sighed by Mrs. Fox, Mrs. Donlon asked her if she would like to have Mr. Creal keep the will and she said Yes; then he (Mr. Creal) took the will away with him and kept it until he delivered it to the surrogate. The witness further testified that Mrs. Fox at the time seemed to him to know every word that Avas said and what was being done.
Margaret Donlon, a witness to this alleged will and the executrix named therein, testified that she Avas the Avife of John Donlon, of the age of forty years, had known Bridget Fox for twenty-three years, and that she had always lived in the same place where she died, and was at her house often during the time she knew her; that she lived near her and Avas well
Three witnesses testified as to the age of Mrs. Fox at her death in 1892; the first, Mr. Fonder, that he thought she was then perhaps of about eighty years of age; the second witness, Mr. Davidson, testified that he could not tell her age; that she was about eighty, he supposed; the third witness, John Donlon, a creditable witness and a nephew of Martin Fox, testified that he heard Martin Fox say in’1870 that his wife, Bridget, was then of the age of seventy years,- which would make her, age, at her death in 1892, over ninety-one years.
I hold that the evidence of the last-named witness clearly and legally establishes that the age of the decedent at her death to have been over ninety-one year’s. 1 Greenl. Ev. (Red. ed.) §§ 103, 104; Doe v. Griffin, 15 East, 293, and other cases cited under said §§ 103, 104 Greenl. Ev.
An important and controlling question arises in this case as to whether the alleged will of the decedent accords with her duties and obligations to her stepdaughter, Hon ora Fox, and with her former and often-declared intentions, while rational, to make Honora, at her death, the sole beneficiary of her bounty; the evidence in this case is all in one direction, in favor of the contestant, as are also the authorities in harmony therewith and with good sense. Matter of MeCarthy, 48 N. Y. St. Repr. 315, Sup. Ct., 5th Dept; Matter of Raynor, 44 id. 468, Sup. Ct., 5th Dept. The above two cases are very similar, in the facts stated, to this. Matter of Coop, 24 N. Y. St. Repr. 417; Matter of Budlong, 26 id. 863.
The evidence shows that Bridget Fox was remarkable for her great vitality; that she was strong in both body and mind up to within ten days of her death; there is no evidence tending to show that she had ever been sick a day prior thereto, but that, like Holmes’ famous “ One Hoss Shay,” she in the end went to pieces very suddenly.
The Rev. Richard Coyle did not appear personally at any time in the proceedings for probate before the surrogate.
I hold and decide that Bridget Fox at the time of signing said alleged will was not of sound and disposing mind; that her signature thereto was procured by the undue influence of John Davidson and Thomas Conway, and not by any undue influence on part of Bev. Bichard Coyle, as alleged in the contestant’s answer, and I direct decree herein denying probate of such alleged will, with such reasonable costs to the contestant, including fees of stenographer, as may he allowed by the surrogate on notice of adjustment to the proponent, and „ also such reasonable costs to the proponent as may be allowed in the discretion of the surrogate upon like notice to contestant; such costs payable out of the estate.
Probate denied.