195 A.D. 339 | N.Y. App. Div. | 1921
John Bossom, a resident of Binghamton, Broome county, 1ST. Y., on the 6th day of March, 1902, made hi's will; at that time his family consisted of his wife, Catherine Bossom, to whom he left the use of his property, real and personal, during the term of her natural life; a son, Adam, $5; a son, John Bossom, $500. He then provided that the balance of his property should be divided into four equal shares, and the terms of its disposition was provided in said will as follows: One of said equal shares to his said son John; one to his daughter, Rosetta Kimball; one to a grandson, Henry John Bossom, contestant herein, and son of a deceased son of the testator; and the remaining one-fourth share to his said son John, as trustee for the benefit of his son Jacob Bossom during his natural life, and if any remained of the trust estate, at the time of the death of Jacob, it was to be divided equally between the said John and Rosetta aforesaid. Jacob was an incompetent person. The testator thus named and provided for all of his direct descendants living and the only representative of the one who had died. This family was German; the testator and his wife were born in Germany. The thrift and decent frugality, characteristic of that race, had, through the years that had gone before, netted this testator a property, consisting in the main of improved real estate, which produced an income sufficient for the needs of himself and his wife. It will be observed that this will is orderly, evenly arranged, and the result of a scheme, thought out by the testator, or at least so arranged as to benefit those he was to leave behind him, in equal degrees. The evidence shows that the son Adam, who had left home early, had been advanced sufficient so that the testator felt he was no longer to be considered in the division of his estate. John, upon whom was to fall the burden of his incompetent brother, was given an extra $500. The point is not that I am now passing upon any
Second. It was conceded that the evidence justified an affirmative finding that said subscription by the testator; at the end of said codicil, was made by said testator in the presence of each of the other attesting witnesses and so acknowledged by him to said witnesses.
Third. It was conceded that the evidence justified an affirmative finding that at the time of making such subscription the testator declared said instrument so subscribed to be a codicil to his last will and testament.
Fourth. It was conceded that the evidence justified an affirmative finding that there were two attesting witnesses to said instrument, and that each of them signed his name at the end thereof at the request of the testator.
On the concessions so made by contestant the jury were directed to find affirmatively on each of the four questions as set forth above. These concessions and affirmative findings are to the effect that this codicil was executed and published in a legal manner and in Compliance with the statute of this State. (See Decedent Estate Law, § 21.) This suggests the question here, which must always be answered in the negative: Can an insane person do a sane act? Of course a legal act is meant. However, passing that without answering it, the two other questions which were submitted to the jury and within the confines of which it was to consider the evidence, state all and the only issues raised by contestant’s objections. They are as follows: “Fifth. Was the execution of said instrument by said testator his free, unrestrained and voluntary act? Sixth. Was the said testator at the time of the execution of said instrument of sound mind, memory and understanding? ”
Those last two questions were answered by the jury in the negative, and upon such finding the surrogate entered a decree in the surrogate’s office of Broome county, N. Y., denying
The findings of the jury on questions 5 and 6 are disapproved, and the decree of the surrogate reversed and a new trial granted, with costs to abide the event.
All concur.
Decree of the surrogate reversed and new trial granted, with costs to appellant to abide event. The court disapproves of findings of fact numbered 5 and 6.