122 N.Y.S. 83 | N.Y. App. Div. | 1910
This appeal is 'from a decree of the Surrogate’s Court of Westchester that refused probate of the alleged will of Richardson upon the findings of restraint and undue influence and of incompetency. Richardson was 72 years old when he executed the instrument,. The natural objects of liis bounty were his aged wife and his two daughters, Mrs. Alexander and Mrs. Valentine. At the instance of his wife and Mrs. Alexander and- after their consultation with his physician Richardson had been confined in a sanitarium for physical and mental infirmities, but after a few weeks he had been released by legal proceedings at the instance of Mrs. Valentine, wherein a jury determined that' he was competent to' manage his affairs. Shortly thereafter he executed the instrument in question, whereby, although he provided for his wife and the child of Mrs. Alexander, he excluded Mrs. Alexander, and disposed of the bulk of his estate in favor of Mrs. Valentine and her children. The contestants are the widow and Mrs. Alexander.
The opinion in the case indicates that the finding of restraint and undue influence rests upon the distinction made in favor of M1-s. Valentine, for which there appeared no good reason, and the absence of any proof that Mrs. Valentine ever attempted to correct her father’s obsession that Mrs. Alexander’s purpose in taking steps towards his confinement in a sanitarium was to strip him of his possessions, by informing the father that'Mrs. Alexander had acted from proper motives and upon a physician’s advice. The question of incompetency was bitterly contested, and there was a clash of intelligent and reputable witnesses aside from a battle of experts. The proponent called a well-known physician who attended Richardson before the execution of the instrument, and who was a witness thereto, a prominent member of the bar who drew the instrument, as well as several friends and neighbors, of whom all gave evidence which indicated testamentary capacity. In sharp contradiction' the contestants called several witnesses, including physicians. -
We think that those'issues should be passed upon by a jury. Such a determination of the appellate court does not necessarily proceed from the conclusion that the Surrogate’s Court was positively wrong in the result reached upon the facts, but is the
The decree of the Surrogate’s Court should be reversed and there should be had-a new trial by jury at a Trial Term of the Supreme Court, held in the county of Westchester, upon these questions:
First. Did decedent at the time of the execution of the will in question have testamentary capacity ? .
Second. Was the instrument purporting to be such will voluntarily made by him ?
Third. Was the execution by the decedent of the said instrument purporting to be his last will and testament procured by fraud, circumvention or undue influence practiced upon him ? with costs of the appeal to abide the event of the new trial, payable out of the estate.
Hirschbebg, P. J., Woodward, Thomas and Carr, JJ., concurred.
Decree of the Surrogate’s Court of Westchester county reversed, and new trial granted before a jury, costs of the appeal to abide the event of the new trial, payable out of the estate.