132 N.Y.S. 705 | N.Y. Sur. Ct. | 1911
On the offer to probate the paper writing now propounded, the executor named in a will of earlier date has filed objections.
On the hearing it appears that Anne L. Mooney, whose testamentary dispositions are now at issue, was, in. November, 1910, an unmarried elderly woman nearly seventy years of age. She then lived alone with a single attendant in a small flat in the city of New York. She had no ascertained relatives, having survived a bachelor brother who had lived with her most of her life. For some years prior to 1910 Miss Mooney had been an invalid, having suffered her first apoplexy in the year 1905, or thereabout. Before this seizure she was an intelligent woman and able to read. This stroke resulted in the condition which physicians, I believe, term
It was, however, shown on the hearing that Miss Mooney, subsequently to the first attack, measurably recovered possession of her mental faculties, and she could talk a little, but “ not much; ” “ very few words; ” her answers were mainly monosyllables and affirmative or negative motions of the head. Yet it appears that she was able to keep house for her brother after the first stroke and until her second attack after his death. The brother and sister had few acquaintances. They were obviously highly respectable people, and their later existence seems to have been that of lonely valetudinarians. Both brother and sister were Catholics, and x after her first seizure testatrix occasionally went out of doors for the purpose of attending the parish church in the neighborhood. But, in the month of October, 1910, and for some months prior thereto, she was not able to go about much without assistance. This evidence is, I think, entirely uncontradicted. The variations and discrepancies in it are not noticeable on its general accuracy.
On May 19th, of the year 1910, Miss Mooney made the first will which gives standing to the contestant on this probate. Necessarily it is conceded by contestants and proponents alike that she was then of sound and disposing mind, so that the contest concerning the testamentary capacity of the testatrix narrows itself in this proceeding to the period-between May 19, 1910, and November seventeenth of the same year, when the paper now propounded was essayed. The dis
The earlier will provided, in substance, for the payment of all debts and funeral expenses of testatrix, and then for religious observances, in accordance with Catholic faith and tradition, such as masses for testatrix after her death, masses for her deceased brothers and for her “ beloved mother,” Maria Mooney. The other bequests of the earlier will were wholly devoted to charitable or religious uses. The former agent of her brother James and of herself, one Mr. Spichter, who took no benefit under such will, was named as executor of this first instrument.
If we assume that the first will then expressed the testamentary intentions of the testatrix, and there is no evidence that it did not, the later writing now propounded evinces the most marked change of intention on the part of the alleged testatrix; and this is to be considered by the surrogate in view of the circumstances hereinafter mentioned. McLaughlin v. McDevitt, 63 N. Y. 213, 217; Children’s Aid Soc. v. Loveridge, 70 id. 387, 402. Such a disposition of her estate as that indicated, when made by a lonely old woman, without kindred, a Catholic in faith, would not appear to be unnatural. It doubtless summed up the cherished affections and sentiments of the whole life of the testatrix. The later testament, in any event, shows a complete change of a prior intention. Is such radical change explained on this proceeding to probate the later writing, made under circumstances which I shall now proceed to consider ? That is one of the elements for my present consideration, and it is an important one, under the circumstances here indicated.
The paper now propounded is attacked on the several grounds of want of capacity in testatrix, undue influence exerted over her, and also for fraud and conspiracy on the
It is of the first importance in this cause to determine from the testimony before me just what did occur on the 17th of November, 1910, when the paper propounded appears, who were the actors in its preparation, their precise relation to the testamentary act in question and the weight of the evidence on the capacity of Miss Mooney, the alleged testatrix, to make any will at all on that day, and under the circumstances already partly narrated.
The surrogate’s consideration of charges of fraud, duress and circumvention may meanwhile be relegated to the background, for if the testatrix was then incompetent to make a
On the 17th day of November, 1910, Miss Mooney, the alleged testatrix, not only was confined to her bed, but by preponderating proofs it is disclosed that she was unable to carry on the simplest conversation; she was inanimate, listless, motionless, and some disinterested witnesses say that she was wholly unconscious when they saw her. But we may, I think, disregard this last statement without prejudice to the result. Certainly after her second stroke Miss Mooney never again took solid food. Two disinterested witnesses saw Miss Mooney on November 17, 1910, both before and after the hour of the execution of the paper in controversy.
If their testimony is accurate Miss Mooney on that day lacked capacity to perform the simplest legal act. But, as such testimony is to some extent challenged and contradicted, the surrogate must go farther to find convincing proof of the condition of the testatrix on the day in question. The landlady of the house in which Miss Mooney lived and died and where the alleged testamentary act was performed, gives, I think, important testimony on this point, in which she is corroborated. This witness certainly had ample opportunity to observe the state of Miss Mooney’s mind and health on or about the 17th of November, 1910, and her evidence is not favorable to proponents. While there is contradiction in many points on most of the testimony given in on the hear
These circumstances, considered apart, are not fatal to probate. But certainly such a combination of facts and circumstances taken in connection with the very serious condition in which the alleged testatrix then was, called for the highest circumspection and prudence on the part of all who had to do with a new will for the dangerously sick and speechless woman of very uncertain mental capacity.
Now, what from the evidence is conceded to have taken place at the session held for the purpose of making a will and celebrating the formalities attending its execution? There were then present the alleged testatrix, whose mental and physical condition were most unsatisfactory, if not desperate, the two attesting witnesses, including the lawyer who drafted the paper, and also Mrs. Shaughnessy, who was the sole beneficiary of the will propounded, although at some point this legatee retired from the session by the direction of the lawyer. The lawyer and the husband of the sole legatee then proceeded, with some reference to the Statute of Wills, to the execution of the document now propounded. It was certainly a very grave undertaking on their part, and it could have been dictated only by imperious necessity of some kind. Of this necessity the surrogate detects no evidence. Miss Mooney was already testate, and there is visible on her part no eagerness
There is no pretense that the chief beneficiary of this latter will was even named by Miss Mooney, the alleged testatrix. The main persons in the preparation of the instrument do say that she pointed out the sole beneficiary, and that the lawyer named executor was likewise pointed out in the same manner with a monosyllabic “ you.” In this doubtful way the contents of the will now offered and the dispositive provisions are conceded to have been arrived at.
Let us suppose, for an instant, that at the time the paper now offered was in course of preparation, two women and not one had been present in the room with testatrix, and then Miss Mooney had been summoned to select one of them as her heir. As she must have done so by pointing her feeble left arm, this act of selection would have to be interpreted by the lawyer. What a responsibility for any lawyer drawing a will! Suppose he had erred in his interpretation, would the paper then have embodied the will of testatrix? The surrogate can see little difference between the case supposed and the facts narrated by the attesting witnesses. The will as drawn is, on the evidence offered by proponents, largely conjectural, even if it were made by a competent testatrix. Where conjectures clash, interpretation is of no value. The interpreter may be right, but the difficulty is that he may be wrong in his conclusion. When that point is arrived at in respect of a will the certainty required by law is wanting, and the will must fail.
Is it possible that such evidence as that indicated is sufficient, under the circumstances, to establish that this paper now offered to the surrogate is the conscious and deliberate act of a capable testator? The surrogate is unable to bring himself to an affirmative conclusion on this point.
When it came to the signing of the paper, at the end thereof,
While a surrogate should always, I think, have most careful and conscientious scruples in rejecting a paper which concerns the will of the dead, as it was said in Rollwagen v. Rollwagen, 63 N. Y. 517, there should be no straining after probate in a doubtful case, and the same thing was said in Parish v. Delafield, 25 N. Y. 1. The surrogate is obliged by positive law to satisfy himself of the genuiness of the will offered for probate and of the validity of its execution. Code Civ. Pro., § 2622. Now, when reference is made to rules of law established in such cases as this, the surrogate is not satisfied on either point.
It was said by one of the most distinguished probate judges of modern times that the burden of proof in probate proceedings is always on proponents. Barry v. Butlin, 1 Curt. 637; 2 Moore P. C. 480. And see Thayer’s Cas. Evidence, 32, 100, 106; Crisp ell v. Dubois, 4 Barb. 393, 397; Hoyt v. Jackson, 2 Dem. 443; affd., 112 N. Y. 493. This burden never shifts throughout the entire proceeding; otherwise many of the decisions casting additional burdens, or degrees of proof, on proponents under certain circumstances prescribed, would be useless distinctions. ' The contrary doctrine if intended to be announced in Parish v. Delafield, 25 N. Y. 97, has been cer
While I have no doubt that the burden is on the proponents to show that the will in this matter not only conforms with the requisites of our Statute of Wills, but also that it was the conscious, deliberate and intentional act of a competent testator, yet, if by chance the burden of proving the contrary rests at any point on contestants, the precise application of the rule of law would make no difference in my conclusion for which ever way it is the proofs offered are controlling. Orser v. Orser, 24 N. Y. 51.
The proof on the part of the proponents, that the subscription of the paper propounded was made by testatrix is, I think, insufficient. It purports to be made by mark o'f testatrix, formed with the aid of the lawyer. No doubt, one who is unable to sign her name may call upon another for aid even to the extent of holding her hand and guiding it. Robins v.
Nor am I satisfied with the proofs offered to show that on November 17, 1910, the testatrix was of sound mind and memory. In fact, I am convinced that she had not, on November 17, 1910, capacity to make or revoke a will.
In the case of a helpless, sick, or dying woman, the evidence to establish her will is required to be clear and convincing, and the burden cast on the proponents, under such conditions, has not, I think, been discharged in this cause. Proponents have failed to establish that the paper propounded was the will of Anne L. Mooney, or that it was signed by her as required by the Statute of Wills.
The probate sought must, therefore, be denied, and the findings and decree herein so provide, in accordance with this opinion.
Probate denied.