96 N.Y.S. 933 | N.Y. App. Div. | 1905
Lead Opinion
The question of fact which the Court of Appeals directed a jury should determine in this case is whether the will of the deceased was revoked by him. . (See Matter of Hopkins, 172 N. Y. 360, 370.) That question has been tried before a jury and submitted by the counsel to the trial court, by which it has been determined that the deceased did not revoke the will. That determination cannot be reversed On this, appeal as against the evidence or the weight of. evidence, since it is in exact accord with all the evidence given on the trial, and it can only be disturbed'on the theory that the witnesses were all honestly mistaken, and that each of them overlooked the
The testator lived at Tarrytown,. but his business office was at Ho. 12 Broadway in the borough of Manhattan in the city of Hew Y ork. His desk was there, was never locked, was kept open all day, and was in common use by others when he was away. Ho drawer of the desk was ever locked. The desk was accessible to scores óf people. The deceased was a man of considerable means, but he never kept anything of value in this desk, and the little drawer in which the mutilated will was ultimately found was reserved for refuse. Hothing of value was found in the desk after his decease.. He had boxes in two bank vaults, and when it was learned by actual search that his will was not in either of these boxes, a systematic search of the desk referred to was made by his widow, her brother, Mr. Chambers, and Mr. ■ Warren, a business associate of the deceased,' on the mornings of May thirteenth and May fourteenth. The little drawer in question was flush with the recess into which it was fitted, on the top as well as on the sides and back, and it was placed in evidence as “ Proponent’s Ex. Ho. 3.” In this little drawer Mr. Warren found the will after the drawer had been carefully searched for it on two occasions without avail.
Mr. Chambers testified as to the search on May thirteenth as follows: “We then turned to Mr. Hopkins’ desk and made an examination of that. By examination of the desk I mean that we examined all papers and looked carefully for the will but replaced the papers — as we would take them out of one place, examine them and put them back again. Q. Put them back in the same place ? A. In the same place. The desk was left substantially as we found it. We went through the entire desh Tout did not find the will.” Referring to the second’s day’s search he said: “We commenced a systematic search, commencing at the right hand side — commencing at the top, the pigeon holes — I took the papers out. * * * We went straight through the upper part of the desk in that order. We took out every paper there was in that upper part of the desk, left nothing in the shape of a paper that we did not look at or move. * * *' Then we commenced at the drawers. We started down one side, pulled the drawers out, took everything out of them. * ■* * The drawers of the desk were examined by opening them, taking the papers out and replacing the drawers. Q. Did you take out this little drawer which is marked ‘ Ex. 3 ? ’
Mrs. Hopkins testified to the same effect ás Mr. Warren and Mr: Chambers. She was asked and answered as follows: “ Everything was taken out of the desk and I looked in those .drawers just as ■ much as Mr. Warren and Mr. Chambers did. In fact I opened ‘ all the top drawers myself, each of those little drawers that were right'. in front of me. Q. Well, when you opened those little drawers, particularly when you opened this little drawer which we have marked ‘ Ex. 3,’. the right hand side drawer, was. this blue envelope • with the will'in that drawer \ A. No, sir.”
I have quoted from the evidence extensively in order to point the fact that each of the three witnesses testified positively as the result of independent examination that the will was not in-'the drawer “ Ex. 3 ” on the morning of either May thirteenth or. May fourteenth. There is a great deal of evidence of searches had in other places where the will might have been, to which evidence no detailed reference need be made, the searches being significant only as demonstrating the thorough nature of' the quest and the extreme desire of the parties to find the will. On the two days’ search of the desk they were looking for something which they wished to find ; the will as subsequently found was in a large blue envelope indorsed in the handwriting of the deceased; it was a conspicuous object and if in the little drawer was the - only document there, and it seems incredible that it could have been overlooked by so many people in the course- of systematic, united and repeated searches, made under the stimulus of a sincere wish- to find it. While it may. be barely possible that all the parties overlooked it every time, yet accepting the evidence as true and honest, its effect is to establish the fact that the will was not in the desk as fully as any fact can • be established by human testimony. Once this fact' is admitted, viz., that the will was not in the little drawer during the searches,, the conclusion is certainly legitimate if not imperative, that someone who had possession of it saw fit to place it unobserved in the little drawer on the afternoon of May fourteenth with the’ signature mutilated,as stated, and to conceal the fact of its custody. and its furtive deposit in the drawer ever since. The result has been pro
There is no evidence of how the will came to be in the possession of whoever placed it in the little drawer after the unavailing searches were made. There is no proof of his identity or' his motive. The motive may have been a desire to benefit the testator’s child, or hostility to the mother, or it may have been sheer malice and wantonness. The circumstances preclude a solution of the mystery. It would be more satisfactory of course were" it otherwise, but in forensic contests where for any reason absolute certainty is unattainable, reasonable certainty should suffice. But if full faith be given to the evidence, and the absence of the will at the time of the searches be accepted as a fact, it is easier to believe that the destruction of the signature was the work of a mischief-maker than it is to-credit it to the testator. Mr. Hopkins
The litigation over this will .has been protracted, vexatious and expensive! The disposition of the property of the. deceased- which the will provides for is not unjust or unequal, and an end of the' litigation will doubtless be of material benefit tó both parties. The decéasedleft his widow and one child, a son now in his eighteenth year, and the wifi gives the widow something more than she would take in ease of intestacy. - Every court having jurisdiction to determine .the disputed' question of fact has found in favor of the integrity' of the will. The surrogate so. found originally. (See Matter of Hopkins,. 35 Misc. Rep. 702.) This -court .affirmed his conclusion. ’ (See Matter of Hopkins, 73 App. Div. 5:59.) When the Court of Appeals sent the question to a - jury it was again resolved in favor of the validity of the will, and the determination was reversed only for an error in ruling relating to the assignment of/the affirmative -of - the issue. (See Matter of Hopkins, 97 App. Div. 126.) The-present determination is to be regarded as the verdict of a second jury. The -question must finally be determined by a jury, however often the verdict may be reversed, and it cannot be that sensible, practical men will ever render a Verdict in- this case in favor of intestacy. On -the contrary, a jury will.always be inclined to find- in favor of the validity of the will not only as in accord, with all the evidence, but also because such i a finding wopld dispose of the testator’s estate in accordance with provisions which it is known did receive his solemn and formal sanction at one time,
I advise that the verdict be respected, and that the order refusing to set it aside be affirmed.
Bartlett, Rich and Miller, JJ., concurred; Woodward, J., read for reversal.
See Yol. 1 (4th ed.), p. *307.— [Rep.
See 3 R. S. 64, § 43.— [Rep.
Dissenting Opinion
The questions involved in this case have been elaborately discussed by the learned surrogate who admitted the will of the late Robert E. Hopkins to probate (Matter of Hopkins, 35 Misc. Rep. 702), by the learned presiding justice of this department and in. a dissenting opinion on a former appeal (73 App. Div. 559, 571), and by the Court of Appeals (172 N. Y. 360), and very little is left open for consideration in this appeal from an order of the Trial Term denying the contestant appellant’s motion to set aside the verdict directed by the court and for a new trial. Originally the will was admitted to probate; this court, with two justices dissenting, affirmed the decree of the surrogate, and the Court of Appeals unanimously reversed this court and directed that the issue, whether the will was revoked by the testator, be tried before a jury. The case was once tried before a jury, resulting in a verdict sustaining the will, but the judgment was reversed on grounds in nowise affecting the merits of the case (97 App. Div. 126), and having been tried a second time, and on motion of counsel for both parties to direct a verdict, the court directed a verdict sustaining the will, and from an order denying a motion to set aside this verdict and to grant a new trial, appeal comes to this court.
The salient facts in the case, as stated by Haight, J., in writing the opinion of the court on the former appeal (172 N. Y. 360), are as. follows : “ Robert E. Hopkins died at Tarrytown in this State on the 9tli day of May, 1901. He was possessed of a large estate, and left him surviving Fanny W. Hopkins, his widow, and Robert E. Hopkins, Jr., his son, of the age of thirteen years, his only heirs at law and next of kin. He in company with other gentlemen
Commenting upon this state of_ facts the learned court say : “The finding of the will in the testator’s desk with his'signature canceled raised the presumption that the cancellation was done by him with the intention of revoking it.” (Citing authorities.) The question presented upon- this appeal is whether the evidence offered by the proponent' in support'of the will was sufficient to overcome ' this presumption, for it cannot be doubted that the will, if at all times, in the legal possession or custody of the testator; must stand or fall by its condition when found. ■(Matter of Hopkins, 172 N. Y. 363, and authorities there cited.) Both parties asked for a direction of a verdict, at the close of the trial, neither of them making any subsequent request to go to the jury upon any questiqn of fact, and upon this appeal the verdict directed by 'the court must have the same force" and effect as would be the case had the jury actually deliberated upon the issues. What then are the facts which were presented to the court to overcome the presumption of cancellation %
Mr. Hopkins, the testator, was born in Pompey, N. Y., March 24,
The will in question was executed on the 14th day of Hovember, 1891, at Tarrytown, and was drawn by Mr. McKelv.ey, being executed in his presence. Mr. McKelvey acted as the attorney of Mr. Hopkins in the matter and after the execution of the will took it away with him, but there is no reason to suppose, and it is not suggested, that this possession of Mr. McKelvey, the attorney and intimate business associate of Mr. Hopkins, was not the possession, in law, of the testator. The absolute integrity of Mr. McKelvey is nowhere questioned, and all. parties seem to rely upon this much in common. There is absolutely no evidence in the case to show that any person other than the testator and Mr. McKelvey ever saw this will from the day of its execution in Tarrytown until it was found, where the proponent and her brother had searched for it, among other places, in the testator’s desk in the office of the Tide Water companies on the 14th day of May, 1901, ten years after its execution, and five days after the death of the testator. Clearly this will is brought within the rule that where the will is traced into.the testator’s possession or custody, and is there found mutilated in any of the modes pointed out in the statute for revocation, or is not found at all, it will be presumed the testator destroyed or mutilated
This view is supported by the fact that one of the legatees men- - tioned in the will had died; some of the specific legacies were not in existence; the testator had made personal gifts to some of the legatees since-the will was made, and his son had grown to the verge ■of manhood. With these changed conditions., with the laws of •descent and distribution making ample provision for his wife, for his estate was large, is there anything in the fact that he made a will in 1891 inconsistent with the idea that he might desire to can
The order appealed from should be reversed and a new trial granted, with costs, to the appellant to abide.the result of the final trial, . - .
Order denying; motion to set aside 'verdict and grant new trial affirmed, with costs.
Sio.