199 A.D. 405 | N.Y. App. Div. | 1921
Lead Opinion
The testatrix died May 28, 1919, at the age of seventy-nine years, leaving an estate of about $280,000, which came from her father and her husband. The will was made February 9, 1915, and after giving to contestant, who was her first cousin and nearest relative, a daughter of her mother’s .brother, $10,000, and to each of said cousin’s two daughters $1,000, and leaving bequests to certain friends and charities, her residuary estate, amounting to about $216,600 (subject, however, to the payment of several life annuities to various persons aggregating $2,300 and payment of taxes and expenses of administration), was disposed of as follows:
*408 “Item twenty-sixth. All the residue and remainder of my estate, both real and personal and wheresoever situated, I give, devise and bequeath to my friend, William C. Pike, of Plattsburgh, New York, in recognition of his faithful friendship and careful attention to me and my affairs.”
Undoubtedly the statutory requirements were observed in the execution of the will, and we will not question the competency of the testatrix to make a will if she knew the condition of her property and was left free in the matter. The real question is whether the will is the will of the testatrix or the will of Mr. Pike, the chief beneficiary. The contention was that by virtue of the trust and confidential relations between them, he was using her estate for his benefit and improperly imposing upon her from time to time in transactions made entirely for his benefit, and that the will is a part of a scheme he was carrying out to obtain her property by means of his power over her. It is urged that the case falls squarely within Matter of Smith (95 N. Y. 516) and Matter of Kindberg (207 id. 220). We will not pass upon the facts, but will refer to some conclusions which the jury could have found which require a reversal of the decree upon exceptions taken with reference to the charge.
Mrs. Carter was reared in luxury, well educated and of fair ability, but had no knowledge of business affairs. In 1871 she married John C. Carter. Their relations were most happy; he had the entire management of the household, her property and apparently herself. He bought her shoes and clothing, directed as to the household, and her greatest pleasure in life seemed to be to do what he wanted done, and in a business point of view, with her large fortune, she only signed papers that he presented to her for signature. He died October 2, 1912; she showed a friend a pair of shoes soon after and said they were the first she had ever bought. She stated that she had never drawn a check until after his death. She appeared only once in the bank, where she had a very large deposit, and wanted to draw twenty-five dollars or forty dollars, to meet a purchase she had made. The cashier prepared the check, she signed it and he said “we do not see you often,” and she said, “ I. leave those matters to Mr. Carter.” She told a friend Mr. Carter did everything; every
Mr. Pike, as a boy, worked for her husband, and upon Mr. Carter’s death he was called, made all the arrangements for the funeral, took charge of the business of the household and visited her almost daily. He was the chief factor in selecting the monument to be placed at the husband’s grave. There is no doubt that he made life easy for her, attended to her every want, and perhaps she had as much pleasure in carrying out his wishes and signing papers presented by him as she did in doing that service for her husband. Apparently he did all her business; she never went to the bank after her husband’s death and the bank business and the other business was entirely in his charge. She did, however, from time to time receive small sums from rents and gave receipts therefor. She depended upon him for everything. She was asked over the phone to contribute some sheets and pillow cases to the Red Cross, and to a friend present she said she would have to ask Mr. Pike about it. A woman friend ordered two gowns for her at her request, but she countermanded the order, saying that Mr. Pike would send for samples. She borrowed trivial sums of money from her friends who were calling upon her and stated she would get the money from Mr. Pike. The friend asked her why she did not go to the bank for the money and she replied, “ I couldn’t do that, Lucy, I never went to the bank and drew any money.” She wrote a friend, “ Mr. Pike is very kind; he takes charge of all my affairs just as Mr. Carter used to do, so that I don’t have to do anything.” She said, “ Mr. Pike looks after all business matters and is also very kind and efficient about other matters pertaining to home matters, looking after coal, wood and other supplies when I cannot get about; a brother could not be more attentive. I am thankful.” The residuary clause in the will speaks of his “ careful attention to me and my affairs.” Apparently
Immediately after her'husband’s death she drew four checks, aggregating $1,000, to the order of Mr. Pike. All other checks signed by her were drawn by Mr. Pike. Five of them were payable to the order of several other persons, aggregating $2,487.34. The other checks were prepared by Mr. Pike, payable to his order, and aggregate $66,000. The appellant contends that some $27,000 of the money so drawn by Mr. Pike remains unaccounted for. The respondent contends that some of the money so drawn and claimed to be unaccounted for was probably paid for taxes, and presents figures which, if found correct, would show that a great part of the money has been accounted for. Either computation is bad enough. The respondent’s computation involves speculation and guess work. Mr. Pike could have made it clear to the jury just what he did with her money.
After Carter’s death her property was not difficult to handle. It consisted of $100,000, face value, New York city three and one-half per cent registered stock, with interest payable semi-annually; $40,000 United States three per cent registered bonds, interest payable quarterly; $53,820.50 deposit
October 5, 1912, she began to keep a cash book in which she placed her receipts in one column and her expenditures in the other. The expenditures always exceeded the receipts, and the book gives a very fair view of her want of business ability and experience. From that time until the making of the will in question she records receipts amounting to about $1,516, and expenditures of about $5,886. Five hundred and ninety dollars and forty-seven cents of the receipts were from Mr. Pike, in small amounts; the balance was for rents or matters not named. The expenditures were for the general expenses of the household, the servants, groceries, provisions, work upon the place, clothing, and apparently were the general expenses of the household and improvements on the place. If the account is at all reliable she must have lived in a manner entirely out of keeping with her circumstances, while her business man was using large sums of money for purposes undisclosed. It is not surprising that she expressed regret to a friend that eggs were selling so high that she could not buy them and that she could not afford to keep up her grounds in the manner she would like. If we disregard the receipts mentioned in the little red book, her cash book, and consider that the total expenses paid by her were received from income, it leaves a large part of the annual income unaccounted for. Taxes and coal bills may account for a part of it; Mr. Pike had it in his power to show the facts.
Mrs. Brown, the contestant, and her children often visited the testatrix, and their arrival was an event in the family. Mrs. Carter also visited her in Vermont, and had great affection and great interest in her, as she was her nearest relative, and she stated how glad she would be to have Mrs. Brown come and live with her, but of course Mrs. Brown owed her duty to her family.
There is nothing in the case to show that at the time of the making of the will in question the testatrix knew that she had a large fortune and realized the manner of its investments or the income it would produce. We have seen that she felt cramped for money and lived in a very small way. Did she realize that by the residuary clause she was giving
Four important transactions stand out and give much color to the appellant’s contention that Mr. Pike was using his fiduciary and confidential position to absorb her fortune, and was doing it with apparent success. They bear directly upon his intent and upon the question whether his mind was controlling her’s.
(1) The Smith will, so called. Nine days after her husband’s death Judge Booth drafted a will for Mrs. Carter, which was executed. Its contents do not appear. February 3, 1913, a little over three months after her husband’s death, the Smith will, so called, was executed. It was prepared some days before. Mr. Smith, who drew the will, is an able, painstaking, conscientious lawyer. The will was typewritten, but as prepared, the name and residence of the residuary legatee and devisee were left in blank. On February third the will was executed by the testatrix, at Mr. Smith’s office, in
(2) The powers of attorney. May 19, 1913, a few days after the Smith will was executed, Mr. Pike went to his personal attorney, who apparently had never acted as attorney for Mrs. Carter, and told him that she wished him to prepare powers of attorney to him, and directed that the powers given be as broad as possible, and the attorney prepared, without consultation with Mrs. Carter, one power of attorney, as
This transaction falls within the condemnation of Matter of Smith (95 N. Y. 516) and Matter of Kindberg (207 id. 220, and the cases there cited). The powers of attorney were invalid and may be considered the act of Mr. Pike rather than the act of Mrs. Carter. We quote from the Smith case: “ This rule does not proceed upon a presumption of the invalidity of the particular transaction, without proof. The proof is made in the first instance when the relation and the personal intervention of the party claiming the benefit, is shown.” There is no evidence explaining this transaction and no evidence in the case that Mrs. Carter ever understood that she had given the powers of attorney. As it stands the transaction must be treated as fraudulent in law and void.
n bath Evening, Oct. 12, 1913.
“ I wish to explain the reason of the change in the appointment of the executors of my will. When Mr. F. E. Smith was chosen, I thought that he alone would be concerned in it, when on sending" in the bill for drawing the will I found that the entire firm of Weeds, Conway and Smith were concerned in it. I withdrew Mr. Smith’s name and let Mr. Pike’s name remain alone. „ (Signed) ELIZA A. CARTER.”
There is no evidence when this paper was prepared; all we know about it is its production by Mr. Pike on the trial. The contention is that after the codicil was made some one thought that the removal of Mr. Smith and leaving the entire matter to Mr. Pike might call for criticism and perhaps affect the validity of the will, and this paper sought to remove objection on that point; possibly it might have been thought that Mr. Smith had peculiar knowledge about the original will, and the blank he left in it, and that it was unwise to have any friction with him, and that the explanation made in the paper would satisfy him; that it is not probable that an old woman, with the little business experience and knowledge of Mrs. Carter, would have thought of such a paper months after
(4) The deed from Mrs. Carter to Mr. Pike. March 14, 1914, Mr. Pike requested his said attorney to draw a deed from Mrs. Carter to him of some land in or near Plattsburgh, worth $11,500. The attorney prepared the deed without any conference with Mrs. Carter; the consideration is stated at one dollar and other valuable considerations. The deed reserved the use of the property to Mrs. Carter for her lifetime. He delivered the deed to Mr. Pike and afterwards he called on Mrs. Carter and she executed it. He made no explanation to her with reference to it. He says that she said she had had it in mind for a long time and that she wanted the matter closed and disposed of; that Mr. Pike had been very good to her and that she asked him to deliver it to Mr. Pike, which he did. Her statements to the attorney would indicate that she understood she was transferring some property to Mr. Pike for his services, but she conveyed no information as to its value. So far as he knew she might have thought that she was conveying some little piece of real estate worth a few hundred dollars. If she had seen the consideration in the deed, “ one dollar,” it would have conveyed no information to her mind what was being conveyed. She was executing deeds, papers and checks at his request. If she had read the deed, with her small knowledge of business affairs, it is quite improbable that she could have located the premises as the most valuable real estate she had. The deed was not recorded during her lifetime, and shortly after its execution a party applied to her to purchase a part of the property conveyed; she replied that she did not want to sell
We now come to the will in question, the bill for which was made out in Mrs. Carter’s name, rendered to Mr. Pike and paid for by his personal check. The attorney swears that some one, he cannot tell who, arranged with him that Mrs. Carter was to be at his office. His version of the transaction is that she came alone. She brought with her a will which she said she had prepared; she said she had made a will which she was dissatisfied with in some respects, because some parts of it seemed rather peculiar, and there were some changes she wanted to make. She wanted him to look at the paper she had produced and tell her if it was all right and in proper form for her to execute as her will. He looked it over and told her there were some things that he thought should be changed as to wording. They talked the matter over some and then she asked him to draw her will from the paper which she had produced and the suggestions they had made, and it was understood that she was to call at a future day when the will would be ready for execution. He dictated from the paper she produced to his stenographer, and says that he kept the stenographer’s first draft of the will, which
(A) Perhaps it shows that it is not in her handwriting and that the attorney who only had seen her write her name was mistaken. She might well have said she prepared it if it had been written by Mr. Pike or some one at his dictation, or with his assistance. (B) The attorney says that he is sure there was a provision in the original draft about a trust fund, but he cannot tell what it was. He gives no intelligent statement of any discussion between him and the testatrix about the trust fund and the framing of it in its present form which only benefited Mr. Pike. Was the trust fund entirely omitted from the original will as the stenographer’s draft would indicate? And did the attorney, in comparing it with the Smith will, feel that it was taking too many chances and that it would be wiser for Mr. Pike to have the trust fund reformed and inserted? He was asked if he had seen Mr. Pike between Mrs. Carter’s two visits at his office and he cannot remember. (C) There is also a possibility that Mr. Pike and his representatives may have forgotten to produce
It is urged that the attorney was careless in protecting the interests of Mrs. Carter, if he considered her his client, in the matter of making the deed to Mr. Pike, the powers of attorney and the codicil to the Smith will; that it is quite evident that he did not consider' himself as acting as the attorney for Mrs. Carter; he expected Mr. Pike to pay him and Mr. Pike did pay him; that he did not exercise the care which an experienced attorney would exercise for the protection of a feeble old woman who was conferring benefits upon the man who stood in the closest confidential and trust relations to her and was managing her affairs and that the manner in which these matters of business were transacted, the connection of the attorney with them, and his testimony, raised a fair question as to what effect should be given to his testimony; that the fact that he did not closely scrutinize and guard the rights of Mrs. Carter, with other facts, might be considered as impairing his credibility. His credibility was a question of fact for the jury.
On the 11th of August, 1916, Mrs. Brown, the contestant, had an interview with Mr. Pike and told him that Eliza (meaning Mrs. Carter) had agreed August eighth, when she paid the $1,500, that the remaining $200 on the note was to be given to her, to which he replied, in substance, “ we are giving you the interest on this and that is a great deal.” She gave him a check for the $200 payable to Mrs. Carter’s order.
It is urged that Mrs. Carter appears to have been under the control and power of Mr. Pike; that she had no one representing her interests or caring for her. The question comes up, under all the circumstances, was this her will or his will? Did his mind control in the making of it, or was the will the product of her mind uninfluenced and unbiased by the delations which he had towards her? As we have said, the important question is, has the fiduciary and the managing mind shown that the will was the free, untrammeled and intelligent expression of the wishes and the intentions of the testatrix? The burden of proof of course is with the contestant to prove undue influence, but all these facts, if proved, present a condition which requires some further proof or explanation on the part of the proponent. (See above cases.)
With the statement of facts which might have been found we come to the charge, which is able and well covers the ground of an ordinary will' contest. We do not find in it any reference to the fact that the jury must closely scrutinize to see if the will was the testatrix’s free act on account of the close, confidential and fiduciary relations existing between the parties and on account of the influence which Mr. Pike is shown to have had over her, or any suggestion that such relations and the other facts shown required any explanation. The crucial question upon which the case must turn was not presented to the jury in a way to enable it to act with the intelligence which the situation required. The contestant asked the court to charge the jury: (1) That it appearing that the relations between Mrs. Carter and Mr. Pike were confidential and fiduciary, that the will was prepared by Mr. Pike’s attorney, witnessed by his attorney and his brother-in-law, paid for by him — that this is a circumstance which requires explanation on the part of the proponent, and that the burden is on the proponent to satisfy the court and jury that the will was “ the free, untrammeled and intelligent expression of the wishes of Mrs. Carter,” to which the court replied, in substance, that the general rule applied to probate cases does not mean that the burden of proof is upon the proponent to show
(2) That the fact that Mr. Pike did not testify as a witness may be considered by the jury in considering whether any suspicious circumstances have been explained. “ The Court: I think I will not charge that; of course Mr. Pike could have been called as a witness, but he could not have testified.” The contestant excepted. This was clearly error; there were many important things which he could have sworn to if the facts warranted it. Many circumstances required explanation, as to which he was a competent witness.
(3) That if Mr. Pike had within his control evidence to explain any suspicious circumstance, and that evidence was material to the issue, his failure to produce the evidence raises an unfavorable presumption as to him. “ The Court: I don’t know that he has any evidence; I don’t know.how I can say that he has any. Mr. Tierney: I say, if he has. The Court: You examined him. Mr. Tierney: It is not in this
Clearly, the attorney being unable to say whether or not Mr. Pike asked him to draw the will in question, Mr. Pike could have sworn upon that subject. He could have explained for what purposes he used the various checks drawn in his favor and which remain unaccounted for, and what he did with the moneys which never reached the bank, thus showing that he was acting in good faith towards the, testatrix and that he was not systematically wronging her. This bore upon his intent to defraud and her inability to take care of herself as against him.
We infer from the briefs, and the remarks of the court, that an examination of the proponent was had before trial. The presiding judge did not know the evidence taken, but whether he did or not, it was no part of the trial. If suspicious circumstances were shown against Mr. Pike, and he refused to go on the stand, it was error for the court to make a suggestion to the jury which might cause it to believe that the facts had already been explained in court and, therefore, no further explanation was necessary. The ruling in both respects was wrong. Needless to say, the court could have had no such intention, but clearly the remarks were prejudicial.
(4) That the instructions for drafting the codicil having been given by Mr. Pike, the codicil must be regarded as having been prepared by him. The court refused to so charge and exception was taken. I think, as a matter of substance, that it made no difference whether he wrote the codicil or told his attorney how to write it. The charge was erroneous.
(5) That instructions for drafting the deed from Mrs. Carter to Mr. Pike, in March, 1914, having been given by him, that that deed must be regarded as having been prepared or drafted by him. “ The Court: I do not think that is in this case at all.” The contestant excepted. We have the history of this deed and the refusal to charge was prejudicial. If the deed was wrongfully obtained, it had a direct bearing on the control which Pike exercised over the testatrix and his willingness to benefit from that control.
If, as the contestant contends, the powers of attorney, the
Why was the will made? The appellant answers that the attorney says that Mrs. Carter told him, when she produced the draft of this will, that she was dissatisfied with her will because some parts of it seemed rather peculiar and there were some changes she wanted to make; attention has not been called to any parts which she deemed peculiar. The changes made were solely for the benefit of Mr. Pike, with small changes in bequests which would give some color to the new will. It reduced the trust fund from $85,000 to $40,000; it intended to excuse him from filing the inventory, so that the amount of the gift to him could not be ascertained and so that no comparison could be made between the property left by her and the property she had when Mr. Pike took control. It had the added clause that the gift to Mr. Pike was “ in recognition of his faithful friendship and careful attention to me and my affairs.” That might have been deemed important as a reason for so large a gift. The appellant infers that Mr. Pike was suspicious about the Smith will (1) because the name was not in the original draft and (2) the brother-in-law was not sure that his name was in the will when it was executed. He had obtained a codicil taking Smith’s name out of the will and reaffirming and republishing the will itself, which seemed at the time to remove any question about the Smith will; but Mr. Smith might be unfriendly, and perhaps he had dangerous knowledge. He had been taken out of the will, and Mr. Pike may have thought it wise to take the will out of the Smith office and to have real friends for witnesses. Without passing upon these questions, or the merits of the controversy, we may say that the facts shown justified the contest, and made it necessary, and that it was error to impose any part of the costs against the contestant. The decree should be reversed upon the exceptions, and the questions retried before a jury, with costs to the appellant to abide the event.
Woodward, Cochrane and Kiley, JJ., concur; Cochrane, J., with a memorandum; Woodward and Kiley, JJ., vote to
Concurrence Opinion
I concur in the result on the sole ground that the jury were not sufficiently instructed as to the effect on the evidence of the confidential business relations between the decedent and her chief beneficiary. I do not, however, indorse all the arguments or suggestions of the presiding justice. Those arguments were proper considerations for the jury and they have passed on them adversely to the appellant. The vice is that in doing so they did not properly appreciate the necessity of an explanation by the proponent satisfactory to them that the will was the free and intelligent expression of the wishes of the decedent. Justice, therefore, requires a new trial.
Decree reversed upon the exceptions taken, and ordered that the questions be retried before a jury, with costs to the appellant to abide the event.