175 A.D. 447 | N.Y. App. Div. | 1916
This is an appeal by the proponent from a decree of the Surrogate’s Court of Westchester county, entered July 18, 1916, denying the petition herein for the probate of the will of George W. Horton, deceased, dated April 5, 1902, and dismissing the proceedings herein.
The alleged testator died in the State of Ohio on September 14, 1913, at the age of over eighty-six years. He was born on City Island, then Westchester county, now New York city and the county of Bronx, on September 14, 1827, and lived on City Island until about 1906, when he moved with his daughter, the proponent, to White Plains, where he remained for the most part until about July 1, 1913, when he went to the State of Ohio and remained there until his death. His business before he went to White Plains was that of a pilot through the Hell Gate waters. I do not find any statement of the death of his first wife, the mother of the proponent, although evidently that had antedated the making of the will here propounded, which was dated April 5, 1902, and described him as a resident of City Island and gave the bulk of his estate to his grandchildren, the children of the proponent. He was married to the contestant on September 10,1912.
The petition of the daughter, who was named as executrix in the said instrument, was presented to the Surrogate’s Court of Westchester county on September 18, 1913, and alleged that at the time of his death the decedent was a resident of White Plains and left real and personal property within the county of Westchester. The answer of the contestant, the widow, denied that said paper writing was his last will and testament and affirmatively alleged that on the 8th of August, 1913, he executed another paper at Painesville, 0., as and for his last will and testament, and that the same had been duly probated as such in that State.
At a former trial of the issues thus joined the said Surrogate’s Court rejected the offered record of the proceedings of the Ohio Probate Court admitting to probate the said alleged will dated
The main question presented by the appeal, therefore, is whether or not that finding of domicile is sustained by the evidence. After reviewing the evidence and considering the arguments submitted by the learned counsel in their respective briefs, I feel convinced that such finding was clearly against the greater weight of the evidence, and that, indeed, the contrary finding should have been made.
In 1906, when decedent practically retired from his life business and went with his daughter, the proponent, to reside with her at White Plains, he was then nearly eighty years of age. He appears to have been in the habit of going about considerably until at least about 1907. Apparently he met the contestant, then a Mrs. McOaslin, at Thomasville, Ga., in the winter of 1903, and first went to her residence at said Painesville, 0.,
On July 1, 1913, Mrs. Horton came again to White Plains with Dr. Swan, and they succeeded very shortly in getting
The crucial question upon this appeal is this: Did the decedent from July 1,1913, to his death, have sufficient mental capacity to form and have the requisite intent to change his domicile from New York, which had always theretofore been such, to Ohio ? The evidence established abundantly that this State was the decedent’s domicile of origin and had remained his domicile throughout his long life, "unless from July 1,1913, when his wife succeeded in getting him to leave White Plains,
Where, as here, the domicile of origin continued so long, namely, through eighty-six years and the entire period of an active life, that presumption of continuance may be especially strong. Manifestly if the decedent, from July 1 to September 14, 1913, the date of his death, was mentally incompetent to form and have such an intention, then he could not have so changed his domicile. I think that much the greater weight of the evidence showed that he had not then that degree of mental strength and capacity. I reach this conclusion for the following reasons, viz.:
(1) The decedent was then at an advanced age, over eighty-six years, and evidently had reached, for him, what may be termed the breaking point of life.
(2) . He was concededly in a very weak physical condition. His regular physician at White Plains so testified as to his condition on July first. Such fact was shown also by the testimony of the hackman, who had known him well, and by that of the daughter. Dr. Swan, the friend and aid of the contestant, in effect testified to the same result. Indeed his condition was such that the contestant felt that she needed a physician companion to take him with her to Ohio.
(3) His mental condition was correspondingly weak. His White Plains physician, who appears to be disinterested and who had attended him professionally apparently for some time, testified to his feeble mental condition and to his opinion that the decedent was not competent or able “ to form and carry out a purpose to change his domicile from New York to Ohio.” Other testimony indicated the same.
(4) The general situation, to my mind, speaks forcibly
Upon the contestant’s side the evidence was meager. The manager of the hotel gave merely negative testimony. He had substantially no talk with the decedent and did not even know of the marriage. The contestant’s daughter, Mrs. Barton, was
I recommend, therefore, that the decree of the Surrogate’s Court of Westchester county be reversed and a new trial ordered in said court, costs to abide the event.
While, under section 2J63 of the Code of Civil Procedure, it appears that we have the power to decide the questions of fact upon the evidence, and, therefore, to decide that the decedent was still domiciled at White Plains in this State at the time of his death, I do not recommend that course because it seems to me that at the trial the contestant elected to take her chances upon the conclusive force of the-record in the Ohio probate proceedings, and that she may now elect to attempt to prove here in the Westchester Surrogate’s Court the alleged Ohio will, and I suppose it would be competent under the pleadings for ■ her to undertake to do so.
Carr, Stapleton, Rich and Putnam, JJ., concurred.
Decree of the Surrogate’s Court of Westchester county reversed and new trial ordered in said court, costs to abide the event.