47 N.Y.S. 681 | N.Y. App. Div. | 1897
The will which is the subject of this appeal devised the whole-of the estate to Martin Brunor, the husband of the deceased, in the event that he survived the testatrix, and in the event he. did not • survive the testatrix then to his son, Emile Brunor. The will also-states that it had been the intention of the testatrix to leave a substantial bequest to one Bertha Hirsch, a second cousin, but that her feelings had changed towards her, and, therefore, she left her nothing. The husband was made the sole executor of the will.
In many respects the ease presents unusual and remarkable - features to which we may briefly refer. Prior to her marriage-with Brunor the deceased was the wife of Herman Falk, wit-li whom she had lived happily for twenty-four years. By strict, economy and somewhat penurious habit the couple had accumulated an estate of about the value of $40,000, consisting of real property, and about $3,000 in cash in the bank. Falk died about, a year prior to the marriage of the testatrix with Brunor, leaving a. will in which he devised all of his property to his wife. The propperty was improved and rent-producing. After her husband’s-death she continued to conduct her business, collected the rents- and looked after the property. It is evident that she was a woman of moderate intelligence, with some business shrewdness and quite-capable of caring for her property and herself ■ under ordinary circumstances. She occupied a part of one of her houses as a home,, and with her lived Bertha Hirsch, the. young woman mentioned in. the will. Bertha Hirsch had been an inmate of the home for six. years and a half, and there is evidence tending to establish that in. some sense she was regarded as an adopted child by Mrs. Brunor. • The evidence would also have justified a finding that Mrs. Brunor and Bertha Hirsch had no differences, but lived happily together, and that it was the intention of Mrs. Brunor to make some provisión for her in -her will. The evidence' would also, have justified a. finding that, up to the time of her marriage with Brunor, Mrs. Biumor was weir disposed-towards her brother, was upon terms of affectionate intercourse with him, and that friendly relations existed.
The marriage was’solemnized in August, 1894, and the couple'
The evidence given upon the part of the proponent tended to establish that the will, as made and executed, was the voluntary act of the testatrix, and that she was uninfluenced by any other considerations than a desire to leave all of the property then at her disposal to her husband. A jury upon a trial of such issue would be justified in so finding, upon the testimony now before us. The question, however, in cases of this kind does not depend upon the consideration as to whether the surrogate might have found, from the evidence, that thé will was the free and voluntary act of the testatrix, or that a jury might so find. But rather is it to be solved by a consideration of the whole evidence as a de novo question, and if upon such consideration the mind of the court is in doubt upon the question of whether the will is the free and voluntary act of the testatrix, it,becomes a question of fact for the determination of a jury, and it is the duty of the court to .set aside the probate and direct a trial of the issues. (Matter of Van Houten, 11 App. Div. 208; Howland v. Taylor, 53 N. Y. 627.)
Beyond the statement already made we do not deem it necessary to discuss in detail the evidence given by the respective parties in support of their positions. We have already said that the evidence would warrant a -finding, by a jury upholding this will as a valid
We have not overlooked the evidence given by the proponent in rebuttal of the contestants’ case, which tends to contradict the evidence given by the contestants and to show that the parties lived together happily after their marriage, and from which a jury may find complete answer to contestants’ case. But within the rule above referred to the evidence raises a doubt as- to whether this will was' the free and voluntary act of the testatrix sufficiently strong and well founded to call for a reversal of the decree of the surrogate.
A trial, before a jury at a Trial Term of the Supreme Court, held in the county of Kings, is, therefore, ordered of the following questions:
First. Was the instrument, purporting to be the last will and tes
Second. Was the execution by the testatrix of the instrument purporting to be her last will and testament, under date- of March 23, 3 895, procured to be executed by fraud, coercion or undue-influence practiced upon her ?
Costs of the appeal to abide the final award of costs.
All .concurred, except Bartlett, J-., not voting.
Decree of surrogate reversed and a trial directed to be had of the issues, at a Trial Term of the Supreme Court held in and for the county of Kings, of the following questions : First. Was the instrument, purporting to be the last will and testament of Lena Brnnor, deceased, dated the 23d day of March, 1895,. freely and voluntarily made by her? Second. Was the execution by the■’testatrix of the instrument purporting to be her last will and testament, under date of March 23, 1895, procured to be executed by fraud, coercion or undue influence practiced upon her ?