33 Misc. 141 | N.Y. Sur. Ct. | 1900
The testatrix died March 26, 1900, leaving her surviving one daughter and two grandsons, the children of a deceased son, as her only heirs-at-law and next of kin.
The instrument offered for probate bears date July 25, 1884, and by its provisions the testatrix gives her entire estate to the daughter. The grandsons contest the probate on the alleged grounds of undue influence and lack of testamentary capacity, as well as upon the ground of a failure to comply with the statutory requirements in the execution of the will.
The evidence quite satisfactorily shows testamentary capacity on the part of the testatrix at the date of the execution of the will; and, while it appears that the relations between the testatrix and the daughter, her sole beneficiary, were, at the time of the making of the will, of a close and confidential character, yet the evidence falls far short of being sufficient to defeat probate on the ground of undue influence. The rule seems to be well settled that to avoid a will on the ground of undue influence it must be made
In those cases where one member of a family obtains control of a parent, aged and infirm, by constant importunity and insidious efforts, and produces a testamentary disposition in favor of the one exercising such influence, and to the exclusion of those having equal claims, it becomes necessary for the law to extend its protection in order to prevent such improper and unjust interference. Delafield v. Parish, 25 N. Y. 95; Tyler v. Gardiner, 35 id. 594. Yet the evidence fails to bring this case within the operation of the principles enunciated by the cases last cited. The will in question was executed more than fifteen years before the death of the testatrix, and at a time when she possessed good business capacity; substantial reasons are also disclosed for discrimination in favor of the daughter as against the contestants, and, all considered, it cannot be said that the will is unjust or harsh in its terms or provisions.
These considerations eliminate every question on this contest aside from that of the formal execution of the will. On the trial, the proponent called as a witness the attorney who prepared and superintended the execution of the will, and sought to establish by his eiddence the details of such execution. Such evidence was objected to as being incompetent under the provisions of section 835 of the Code, and it was thereupon stipulated that such evidence be taken and retained or excluded, with the proper exception, on the final consideration of the case. The question of the admissibility of this evidence is one which now first claims attention.
The section of the Code above referred to provides: “ An attorney or counselor-at-law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment,” etc. Section 836 of the Code, qualifying sections 833, 834 and 835, as amended by chapter 416 of the Laws of 1877, was as follows: “ The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived * * * by the person confessing, the patient or the client.” Section 836 was
At the end of the will is an attestation clause, full and complete in every particular, reciting the fact that “ The above-written instrument was subscribed by the said Eliza Sears, in our presence, and acknowledged by her to each of us; and she, at the same time, declared the above instrument, so subscribed, to be her last will and testament; and we, at her request, have signed our names as witnesses hereto, in her presence, and in the presence of each other, and written opposite our names' our respective places of residence.” This attestation clause is signed by both of
The other attesting witness testified as follows: [Will shown witness.] “ Q. Do you remember the execution of that paper? A. Yes, sir. Q. Were you present when "the will was signed by Eliza Sears? A. Yes, sir. Q. Where was it -signed? A. At Mr. Benson’s office, over Adams’s store. Q. Was Mr. Austin Holt present? A. I think we went up together, and Mrs. Sears was there. Q. Do you remember Mr. Holt signing in your presence? A. Yes, sir. Q. Were you and Mr. Holt requested to sign this instrument as witnesses to her will? A. Yes, sir; and my recol
On his cross-examination, this witness further testified as follows: “ Q. When you went up into Mr. Benson’s office, who was present? A. My recollection is that Mr. Benson, Mrs. Sears, Mr. Holt and myself were the only ones. Q. Do you swear positively that there were no others in the room? A. I could not do that. Q. Will you swear that her daughter Albina was not there? A. Don’t think she was; can’t swear to that. Q. Did Mr. Benson have more than one room there? A. Yes, sir. Q. Were you in both of those rooms? A. I could not swear as to that. Q. Did Mr. Holt leave when you did? A I could not swear as to that. I signed the will first. I was taken from my office in the bank, and I usually got back to business as quick as I could. Q. Did you wait until Mr. Holt had signed? A I could not swear as to that. Q. Do you remember of anything that the old lady, Mrs. Sears, said at that time? A. Ho, sir. Q. ALL you did was to go in there and see her sign, and sign your name? A. That’s about all the recollection I have about it after I signed it. Q. Did you say that you did not know whether it was Mr. Benson or Mrs. Sears that came after you? A. I believe I did.”
On his re-direct examination, this witness further testified that he read over the attestation clause at the time of the signing of the will, and further testified as follows: “ Q. You may have had some talk with Mrs. Sears there in the office? A. I may have had, but I have no recollection of any. Q. What is your present recollection, whether you did or did not have any conversation with Mrs. Sears at that time? A As regards the will, I have no recollection of any.”
I refer to this evidence somewhat in detail for the purpose of ■showing that neither of these witnesses have assumed to testify that the fact of publication and request to them to sign did not take place. The only criticism that can be passed upon their evidence is that they do not at the present time recollect these
The Code provides that if “ A subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.” Code Civ. Pro., § 2620. In this case, the proof of signature of the testatrix and of the attesting witnesses is complete, and the recitals in the attestation clause, if true, show a full compliance with the statutory requirements in every particular. In an early case (Nelson v. McGiffert, 3 Barb. Ch. 158), the Chancellor held that an attestation clause, after a considerable lapse of time, when it may reasonably be supposed that the particular circumstances attending the execution of the will have escaped the recollection of the attesting witnesses, is a circumstance from which the court or a jury may infer that the requisites of the statute were complied with. This rule has been substantially adopted in subsequent decisions. Jessop Sur. Pr. 386; Matter of Bernsee, 141 N. Y. 389; Matter of Pepoon, 91 id. 255; Matter of Cottrell, 95 id. 329; Brown v. Clark, 77 id. 369.
In the following cases a full attestation clause was instrumental in sustaining the will where the memory of the witnesses was defective: Matter of Graham, 9 N. Y. Supp. 122; Matter of Hunt, 110 N. Y. 278; Matter of Rounds, 7 N. Y. St. Repr. 730; Matter of Townley, 1 Connoly, 400; Matter of Wilcox, 14 N. Y. Supp. 109; Matter of Lantry, 5 id. 501; Matter of Frey, 2 Connoly, 70.
In view of all the circumstances attending the execution of the will, the, long lapse of time intervening since its execution, the
The will should be admitted to probate, and the objections filed to probate disallowed. A decree will be entered accordingly. '
Decreed accordingly.