165 Misc. 592 | N.Y. Sur. Ct. | 1937
In this contested probate proceeding, tried by the surrogate without a jury, the grounds of attack upon the validity of the alleged will were defective execution, lack of testamentary capacity and undue influence. The will bequeathed the entire estate to a cousin of the testator, Harrison Rockefeller, and named him as executor. The contestant is also a cousin.
The propounded paper bears the date April 24, 1937. The testator died about two months later on June 22, 1937. His exact age is in doubt. The death certificate sets forth that he was seventy-six years old. On the other hand, he informed one of the witnesses that he was eighty-six years of age. He left an estate which amounted to the sum of $3,000. There is an additional asset, over which dispute has arisen, consisting of a savings bank account of $3,000 originally in the name of the decedent, but transferred by him on April 30, 1937, shortly after the alleged date of the will, into a new account in the joint names of himself and the sole beneficiary named in the will, with provision for payment to the survivor.
The circumstances surrounding the preparation and execution of the will are exceptional. Mr. Rockefeller, the sole legatee, testified that the instructions as to its contents were given to hiTn by the testator. He then went to the office of his son-in-law,
On the issue of testamentary capacity it has been shown that on the day before the alleged execution of the will Mr. Lasher was visited by a physician for the purpose of treatment. He was found to be suffering from general arteriosclerosis, a coronary heart condition and high blood pressure. The physician testified that the decedent was not oriented, that he made no responsive answers to questions asked him and that he was of unsound mind on that date and was suffering from senile dementia. Other persons have testified that he suffered from loss of memory and that his personal habits and appearance were careless and filthy, and his eyesight greatly impaired. The signature upon the instrument is a mere scrawl and is almost undecipherable. He had delusions that crocodiles, alligators and snakes were in the room occupied by him and he could not be reasoned out of these delusions. Although his room was lighted by gas and contained no electrical equipment whatsoever, he frequently complained to various witnesses that a live electric wire was strung near his bed and endangered his life. On May 4,1937, he was examined briefly by an ambulance doctor called from St. Vincent’s Hospital. That physician was of the opinion that he was senile but not incompetent although the decedent told him that persons were attempting to railroad him to a hospital. Some weeks later he was found dead in his room, a victim of a heart attack. The evidence submitted by the proponent on this issue is unsatisfactory and unconvincing. Upon a review of the entire evidence upon the issue of capacity the court finds that the testator was not of sound mind on the 24th day of April, 1937, or on any subsequent date up to the time of his death.
The conclusion also follows from the evidence that the alleged will was procured by the undue influence of the sole legatee. The picture presented by the evidence is that of an aged man whose mental state and physical condition were greatly impaired and weakened and one easily subject to the influence of a designing person seeking to obtain his property.
There is another important element in the case. The claims of Mr. Rockefeller, the sole legatee, that the will was duly executed and that the testator was of sound mind and free from undue influence were gravely impeached by his own conduct after the death of Mr. Lasher. He was confronted with an affidavit which
It is reasonably inferable from these answers of the proponent either that the alleged will was never executed in the lifetime of the decedent or that serious doubt existed in the proponent’s mind as to its validity because of the alteration in its date, or that it never could be probated because of the mental infirmities of Mr. Lasher or because of the coercion or duress which were employed in its procurement. The conduct of the proponent with the other factual proof constitutes the strongest form of admission that the paper never had any validity.
Upon all of the evidence the surrogate, as the trier of the facts, finds that the contestant has sustained the burden and established that the will was the result of undue influence exercised by the proponent and sole legatee. (Matter of Anna, 248 N. Y. 421; Matter of Budlong, 126 id. 423; Matter of Smith, 95 id. 516; Tyler v. Gardiner, 35 id. 559; Eckert v. Page, 161 App. Div. 154.)
The will is denied probate. Tax costs and submit decree on notice accordingly.