196 A.D. 131 | N.Y. App. Div. | 1921
Lead Opinion
Lucius H. Beers and William Mitchell, executors named in the alleged will of Amos F. Eno, propounded the same for probate. The testator’s next of kin, consisting of his brother, William P. Eno, his sister, Antoinette E. Wood, his nephews, Henry L. Eno, Gifford and Amos Pinchot, his nieces, Antoinette E. Johnstone, Florence C. Graves and Mary P. Eno, to whom and their children the testator in the propounded paper bequeathed absolutely and on contingent trust over four and a half million dollars, filed objections and demanded a jury trial. On these objections the following questions were duly framed for trial by a jury:
I. Is the said propounded paper the last will and testament of the decedent Amos F. Eno?
II. Was said propounded paper executed pursuant to the requirements of .the statute in such case made and provided?
III. At the time when said propounded paper purports to have been executed (if ever executed) was Amos F. Eno of sound mind and memory and capable of making a valid disposition of his real and personal property, and did he have testamentary capacity?
IY. Was the execution of said propounded paper by the said Amos F. Eno (if ever executed) caused or procured by the improper and undue influence of the proponents, or one of them, or some other person or persons unknown to these contestants in behalf and in favor of Columbia University in the city of New York to the end that it was made the residuary legatee therein?
The proponents presented their proof in support of the due execution of the will and of the testamentary competency and freedom from restraint of the testator at the time of the
Amos F. Eno was born on June 13, 1837, and died October 21, 1915. He was, therefore, at the time of his death seventy-eight years, four months and eight days of age. The paper that was propounded as his last will and testament was executed on June 18, 1915. He was the son of Amos R. Ebo, who died in his ninetieth year in 1898, leaving an estate of about $18,000,000, of which Amos F. Eno received $3,161,446. The contestants and the parents of the contestants received from the estate of Amos R. Eno $14,561,759. For many years prior to his father’s death Amos F. Eno’s occupation was assisting in the care and administration of his father’s property. The fortune which he inherited when he was sixty-one years of age increased year by year, "and at the time of his death amounted to something over $6,000,000 of personal property and ninety parcels of real estate in New York city assessed for taxation at $4,792,500. He managed his own property, made his own investments, personally made all contracts relating to his property, and engaged in no other business. He made at least eight wills which were put in evidence in this proceeding. In the last one prior to the one propounded for probate, dated January 9, 1914, he named as residuary legatees his brother, Henry C. Eno, and his sister, Mrs. Pinchot, with substitution in favor of their issue if the testator should survive them. During the year 1914 his brother and sister both died, and because of this fact he stated on more than one occasion that he would have to draw a new will. In November or December, 1914, he told Surrogate Fowler that he had something in view in connection with
The sole question, therefore, that remained and which was submitted to the jury was whether Amos F. Eno at the time of the execution of this will had testamentary capacity. As I understand the rulings of the surrogate upon the motions to direct a verdict, he decided that the first question was dependent entirely upon the answer to the third, and did not intend thereby to submit any other or different issue to the jury.
Before entering upon the discussion of the evidence of testamentary capacity, I will consider the exceptions taken to the sustaining of the' objection to the production and identification by Lucius H. Beers of the three drafts of the will, and of certain letters received by him from the testator. Beers was called to the stand by the proponents and asked to produce the second, third and fourth draft copies of the will for the purpose of showing the memoranda and alterations made thereon by the testator. Objection was made and sustained. The proponents claim that this was prejudicial error, as these documents, if produced, would tend to show that the testator took active part in the preparation of the will, and that the various devises and bequests were in accordance with his express desire, and that the residuary legatee, Columbia University, had been selected by Amos F. Eno and not by Beers as had been charged. The rule at common law was that the communications made by a client to his attorney to enable him to draw a will were confidential and could not be disclosed during the lifetime of the client; but after the death of the client the attorney was at liberty to disclose all that affected the execution and tenor of the will, for the purpose of supporting the will. He was not allowed to testify to
By chapter 514 of the Laws of 1892 section 836 of the Code-of Civil Procedure was amended by the insertion of the sentence “But nothing herein contained shall be construed to disqualify an attorney on the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate, from becoming a witness as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto,” thus giving legislative sanction to the rule declared in Matter of Coleman (supra). It may now be considered the settled law of this State under sections
The case of Baumann v. Steingester (213 N. Y. 328), relied upon by the appellants, is not contrary to the authorities above cited. In that case, first, the attorney was a subscribing witness to the will and hence competent within the reason of section 836 of the Code of Civil Procedure; second, when the testatrix called upon the attorney and gave him instructions as to the drawing of her will she was accompanied by a person who lived with her and acted as companion and housekeeper, who was present when the instructions were given to the attorney by the testatrix. The court held that giving the instructions in the presence and within the hearing of the third person was a circumstance indicative of the fact that the communication was not made in confidence, the court saying: “ The communication not being confidential, the attorney is not privileged from disclosing it. Where there is no confidence reposed, no privilege can be asserted. In such cases the attorney is permitted to testify not because the privilege has been waived, but because the communication, not having been made in confidence, was not privileged;”
The appellant argues that Mr. Eno in showing these draft copies to Mrs. Desperrins at the time he received them took them out of the category of confidential communications. The distinction is obvious. The draft returned was a communication from the attorney to the client which the client was. at liberty to disclose. It was not a communication by the client to the attorney. I presume that it would not be contended that if a testator exhibited his will.to a third person he thereby unsealed the lips of the attorney as to the con
The appellants further cite People v. Farmer (194 N. Y. 251, 269) as an authority for the proposition that a voluntary disclosure by the client of the facts relating to a transaction with an attorney waives the protection of section 835 of the Code of Civil Procedure. In that case the defendant procured the lawyer to draw a deed conveying property belonging to one Sarah Brennan to the defendant’s husband. She stated to the lawyer that she was Sarah Brennan and she signed the deed and acknowledged the execution thereof before him as a notary public. The defendant later killed Sarah Brennan. Subsequent to the homicide the defendant admitted' in the presence of the attorney and others that she had stated to the attorney at the time of the execution of the deed that she was Sarah Brennan and had executed and acknowledged the deed. The attorney on the trial of the defendant for the murder of Sarah Brennan was allowed to testify that she said to him at the time that she was Sarah Brennan and that she signed the deed and acknowledged it before him as a notary public. The court gave three reasons why the evidence was admissible:
1. “ After such a voluntary disclosure by the defendant of the facts relating to the transaction the protection of said section of the Code is waived, at least to the extent of such voluntary disclosure'.”
2. “ The section of the Code mentioned was not intended to prohibit the disclosure of a communication so far as such communication is necessary to enable a public officer to act in his official capacity.”
3. “ That the seal of personal confidence can never be used to cover a transaction which is in itself a crime.”
The last reason would have been sufficient to render the ■ evidence competent. It is to be noted, however, that .the communication to which the attorney testified was made to him upon the signing and acknowledgment of the deed before him as a notary public, and it must be that the second reason given by the court meant that a disclosure made to the
The exclusion of the draft copies of the will and of the letters produced by Mr. Beers was the proper disposition of the matter.
An interesting question might have been presented had Eli G. Partridge, who was a clerk in the office of Mr. Beers, been called upon to identify the draft copies as received from Mr. Eno. The inhibition of section 835 applies to a clerk, stenographer or other person employed by the attorney. Partridge was a subscribing witness to the will. Would the same rule which.was applied to the attorney who was a subscribing witness in Matter of Coleman (supra) be applicable to an attorney’s clerk similarly situated? We do not consider this question as it is not before us. Partridge was merely asked to identify the words “ Columbia University ” as in the "handwriting of Mr. Eno, which he did.
The paper was offered in evidence and properly excluded. The mere fact that two words on a paper were in the testator’s handwriting did not render the paper admissible in evidence. Nor were the drafts of the will identified by Mrs. Desperrins as those shown her by Mr. Eno. In this condition of the proof the learned surrogate did not err in'excluding the drafts of the will. We are urged by the appellants to receive these drafts of the will in evidence on this appeal. This power of the Appellate Division in its discretion to receive further testimony or documentary evidence upon an appeal upon facts from the Surrogate’s Court is expressly conferred by section 2763 of the Code of Civil Procedure. There is no new or further evidence offered in this court, nor are we asked to take .such evidence. What we are asked to do is now to receive documents in evidence which were properly rejected by the surrogate. The same defects in proof that prevented their reception on the trial would prevent our admitting them in evidence on the appeal. If we had decided that upon the
The contestants claim that Amos F. Eno in the last years of his life was suffering from senile dementia, which had developed to such a stage that he lacked testamentary capacity. In January, 1914, he had made a will in which all of his bequests, except one of $2,000,000, to the General Society of Mechanics and Tradesmen of the City of New York, were to friends, relatives and employees. The residue of his estate he devised and bequeathed to his brother, Henry C. Eno, and to his sister, Mary Eno Pinchot, with substitution in case of their death before his decease to their descendants. The contestants offer this will for probate, thereby certifying that at the time of its execution he was of sound mind and disposing memory. In our consideration of this case we may assume that up to this time his manner of life, his habits, eccentricities and peculiarities, were those of the normal Amos F. Eno, and by this standard judge his subsequent acts. He managed his own estate, which consisted largely of real property in the city of New York, attending to all the details of repair, negotiations of leases, and paying of bills. He had an office in which were two employees, whose duties were purely clerical. In his business dealings he was exact and exacting. His contracts he performed to the letter, and demanded of others equally strict observance of their obligations; he gave and required no less and no more than the exact terms of the agreement imposed. With those who would submit, he was inclined to be arbitrary and overbearing. In dealing with his real estate, he was averse to expenditure of money in improvements and by reason thereof many of his properties became vacant and unproductive. For his profits he depended more upon appreciation in value than on an increase of rental. He was a shrewd and capable man of business. Inheriting $3,161,446 when he was sixty-one years of age, in seventeen years he had increased his estate to over $6,000,000 of personalty and ninety parcels of real estate assessed for taxation at $4,792,500.
Although a bachelor he maintained a house on the corner of Fifth avenue and Tenth street in the city of New York and
On January 10, 1914, Mr. Eno accompanied by his valet sailed for Europe. With him on the steamer were Dr. Wilmer and his wife and daughter. An intimate and detailed account of Mr. Eno’s life from the date of his sailing to that of his return, June 30, 1914, was given by Bigaut, the valet, a witness for the contestants.
After spending a few hours at Monte Carlo the party went to Menton and stopped at the Westminster Hotel. Bigaut characterized this as a second-class hotel and said that previously Mr. Eno had stopped at a large first-class hotel. This change of grade of hotel at Menton and other places on this trip is relied upon as showing a growing penuriousness in Mr. Eno. While that seems to have been the impression made upon Bigaut, he gave an explanation entirely at variance
On the return voyage from Europe he met with an accident. Bigaut testified that for three years he had walked with a cane tapping the pavement or floor ahead of him, and not lifting his feet, but shuffling them along on account of the impairment of his vision; and at this time he had not recovered his strength after his illness, so was feeble in his legs. In attempting to go down the companionway stairs he fell and rolled down 'two flights of steps, cutting his head, lacerating his leg and injuring three of his ribs. A doctor was called and treated his injuries and he remained in his berth until he arrived at New York, but there he insisted on walking from the boat to the dock. The contestants claim that the illness in Rome and this fall on the steamer completed the mental wreck of Mr. Eno. His business activities, the performance of his social duties, his ability to converse intelligently with friends, are but the meanderings of the mind along beaten and accustomed paths, requiring no mentality. His cunning in being able to conceal his mental condition from friends whom he casually met (the proponents’ witnesses) and to so conduct himself in deportment and conversation as to lead them to think that there was but little change in him, was but a further proof that the man was a senile dement. It would exceed the reasonable length of an opinion to attempt to review the evidence in any detail.
On the other hand, there was presented testimony of friends and intimate acquaintances and persons who came in contact with Mm in business transactions. We have the evidence of the actual operation of Ms mind, as disclosed by Ms business and social letters before and after the execution of the will of January, 1914, and we have the will wMch he prepared in 1918, executed June eighteenth, which is offered for probate. We also have the testimony of medical experts of equal eminence with those of the contestants, based upon hypothetical questions, that Mr. Eno showed no signs of semle dementia, and had testamentary capacity. With tMs conflict of evidence it becomes important to-consider its probative force.
The will was not the result of a sudden impulse but of a definite purpose, formed some months before it was executed. Because of the death of his brother and sister, of whom he was most fond, who were the residuary legatees in the will of January, 1914, he expressed the determination to make a new will and gave this fact as the reason for so doing to several persons. He spoke to Surrogate Fowler of his purpose and of making some charitable disposition of his property. The latter replied that he thought the best disposition the testator could make of his property was to his family. Mr. Eno said he thought that might be so as to the property he had. inherited. The purpose thus expressed some months before he prepared the will was carried out and is reflected in the paper propounded for probate.
He first obtained from his office a memorandmn of the disposition of his father’s estate by his will showing the division of $17,723,205 of that estate among his father’s descendants and the substantial ■ equality of distribution
The residuary estate was left to Columbia University, to which was also given the reversionary interest in case the life beneficiaries of certain of the trusts should die without issue.
For such discrimination as appears in the lack of equality of distribution to certain of his relatives, good and sufficient reason appears. His sister Mrs. Woods was advanced in years, wealthy, widowed and childless. In his wills of 1895, 1900, 1902 and 1906 he had made no provision for her. There had been a dispute between them as to the payment of taxes on improvements that she had made against his will on the Simsbury place of which she had a lease from him fot her fife. His diary shows that he first contemplated giving her $50,000, later increased the legacy to $100,000, and finally placed it at $50,000. This shows care and deliberation. On the advice of Henry Lane Eno, his father, Henry C. Eno, had demolished the Fifth Avenue Hotel and in place erected a large office building against the protest and opposition of Amos F. Eno. While Amos F. Eno was abroad Henry Lane Eno had appealed to him for help saying that they had become so deeply 'involved that to carry the transaction through might necessitate the sale of everything else they had. From this experience Mr. Eno had lost confidence in the business ability and judgment of Henry Lane Eno. But for Amos R. Eno, the son of Henry Lane Eno, he created a trust fund of $1,500,000 and gave to him the old homestead. The reason for this will be considered later.
The General Society of Mechanics and Tradesmen had been given a legacy of $2,000,000 in his former wills. He decided, however, to make them a present gift of certain of his real estate, which he did by deed dated June 15, 1915, and also a cash gift of $25,000. He, therefore, formed the design of this change and the somewhat compensating present gift more than a month before the execution of the will, and executed the deed three days before the will was executed. He had,
As there will have to be a second trial it becomes necessary to consider certain of the rulings upon the admission of evidence, and exceptions taken to the charge.
Edith Eno, the wife of Henry Lane Eno, was allowed over the proponents’ objection and exception to testify to a conversation at a luncheon in Amos F. Eno’s house in which said Eno participated, and to testify to statements then made by Amos F. Eno. The objection made was that the witness was incompetent to testify to personal transactions with the deceased by reason of the inhibition of section 829 of the Code of Civil Procedure. Her husband, Henry Lane Eno, was a nephew and one of the heirs at law of Amos F. Eno. If the contestants were successful in this proceeding and the probate of the will refused, her husband would take, in case of intestacy or under the will offered for probate by the contestants, a very large interest in the testator’s realty and she would have an inchoate dower interest in the land thus acquired. It is well settled that “ an inchoate right of dower in lands is a subsisting and valuable interest.” (Simar v. Canaday, 53 N. Y. 298, 304.) The witness had an interest in the event of the action, and by reason thereof was disqualified from testifying concerning personal transactions with the deceased. (Steele v. Ward, 30 Hun, 555; Matter of Blaine, 143 App. Div. 687, 690; Roche v.
The learned surrogate also committed prejudicial error in permitting questions to be put to proponents’ witnesses Eugene Southaek and W. G. Fowler on cross-examination with a view to impeaching them, and questions to impeaching witnesses, and proponents’ objections were well taken. He also
There are certain well-settled rules in respect to the preliminary questions that may be put to a witness to lay a foundation for contradicting testimony: 1. The contradictory
declarations must be inconsistent with some material statement in his direct testimony. Otherwise, if the witness answers the questions the cross-examining party is bound by the answers as they are collateral matters, and not subject to contradiction. (Kay v. Met. St. Ry. Co., 163 N. Y. 447, 450; Furst v. Second Ave. R. R. Co., 72 id. 542, 545; Carpenter v. Ward, 30 id. 243, 249.)
Southack was asked on cross-examination: “ Did you say to Mr. Pinchot, at the apartment upon the occasion of which we are speaking that you did not know whether his uncle was sane and fit to make a will or not, but that you would think it over and make up your mind, or in substance that? ” Objection was made and overruled. The question was answered in the negative. When substantially the same question was asked of Mr. Pinchot an objection was made. In ruling on the objection the surrogate said: “ I will allow the whole question because of the fact that the jury will draw from it their own inference whether or not Southack was making a bid to sell his testimony, that is the reason I let it in. It affects his credibility to that extent; ” and during the argument on the objection the surrogate said: “I am not allowing this question
Evidence to show corrupt endeavor by a witness to sell his testimony must be direct and positive and not rest merely on inference and suggestion of counsel and the court.
Mr. W. G. Fowler had known Mr. Eno for many years, both socially and in business, buying and selling securities for him. He had been Mr. Eno’s guest at Saratoga for a week in September, 1915. He testified to conversations with Mr. Eno with reference to certain investments and produced correspondence between himself and Mr. Eno upon business matters during 1914 and 1915, and testified to Mr. Eno’s appearance at his dinner table in Saratoga. He was .not asked on direct examination about conversations at the dinner table in Saratoga. He testified to Mr. Eno’s brusqueness of manner; he said “ once or twice he told me to get out of the office.” Mr. Fowler was not asked on direct examination whether Mr. Eno’s conduct on these occasions impressed him as rational or irrational. On cross-examination, referring to the incidents of his being ordered out of the office, he was asked whether Mr. Eno’s act impressed him as rational, and he said “ perfectly so.” He was then asked whether he had not said to Mr. Kohlsaat upon those occasions, “ What is the
Kohlsaat was allowed to state over objection and exception that Fowler had told him specifically each of the above-mentioned things. The questions asked Mr. Fowler as to these matters had not been brought out on direct examination, and the objection should have been sustained. The contestants were bound by the answers of the witness, and the impeaching testimony of Kohlsaat was improperly allowed.
Mr. Merz, a clerk in the office of Lord, Day & Lord, was sent to Mr. Eno’s house after his death to make an inventory, and to act as caretaker during the daytime. Mrs. Desperrins testified that Merz ordered a number of old letters to be burned. He testified that they were social letters, invitations, acknowledgments of gifts and other unimportant matters of that nature. Mrs. Desperrins testified that she had read all
The surrogate in denying the motion said: “ I will not strike from the case under any condition the evidence as to the burning of the papers. They may have a bearing on the case beyond the question of undue influence. They may bear, on the question of .the credibility of the proponents’ case.” As the sole issue then to be submitted to the jury was the testamentary capacity of Mr. Eno it is difficult to see what bearing the destruction of old letters from members of his family, social invitations and other communications to the testator, by a clerk of an executor, after the testator’s death, could have upon that issue.
The counsel for the contestants, although strictly limiting the proof when offered and throughout the trial to the issue of undue influence, on this appeal contends that it was admissible on either of two theories: (1) As affecting the credibility of Merz. (2) As evidence of spoliation of papers by a party to the suit. (1) Except in regard to the destruction of papers, Merz’ testimony was limited to the factum of the will to which he was an attesting witness. The proof on this issue was not questioned' and at the conclusion of the contestants’ case the objection “ that the said propounded
No such evidence was given, nor was any notice given or other demand made to produce any letter or paper, which was refused on the grounds of its destruction.
From all that does appear the papers written by others to the testator would have no relevancy or materiality on the sole issue submitted to the jury, the testamentary capacity of the testator at the time the will was executed.
In reply to the argument that the papers were not secretly destroyed, but that Merz had called in the housekeeper and in her presence had instructed a servant to destroy them, and that if there had been a fraudulent intent this would not have been done, the surrogate said: “ Why does a murderer leave traces of his crime? ” On denying the motion to strike out the evidence he said: “ That may bear on the credibility of the proponents’ case; ” not on the credibility of witnesses or of their testimony, but “ on the case.” From the charge the jury might infer from this fact alone, irrespective of the other testimony, that they might find for the contestants. Eliminating the portion devoted to the reading of the will, extracts from statutes and decisions, the charge covered thirteen printed pages of the case on appeal, of which four were devoted to the incident of the burning of the papers. It would unduly
The surrogate in charging the jury as to the test of testamentary capacity read in substance an extract from the opinion in Delafield v. Parish (25 N. Y. 9, 29) as follows: “We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.” We have heretofore stated that in this case the Court of Appeals was merely considering the sufficiency of evidence on the trial of an issue before the surrogate and was not laying down a rule for the instruction of jurors. (Matter of Barney, 185 App. Div. 782, 795.)
A judge or lawyer reading this extract would appreciate in the light of other decisions that “ a capacity to comprehend perfectly ” did not mean an ability, without reference to his books or 'a list of his investments, to remember with absolute accuracy each item and detail of his holdings, especially where his estate was of the value of many millions, and to recall without mistake the exact name of remote relatives, especially where by reason of marriage the surname had been changed. A jury composed of laymen might very properly infer from the word “ perfectly ” that it must be a comprehension without defect or lack of any kind, requiring no adventitious aids. Such a comprehension is not that required to constitute testamentary capacity. (See Horn v. Pullman,
In charging on the burden of proof as to testamentary capacity the surrogate read an extract from Delafield v. Parish (supra, 35): “ That the heirs of a deceased person can rest securely upon the statute of descents and distribution and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showing that the will was executed by a testator possessing a sound and disposing mind and memory.” From this language a jury might gain the impression that the heirs had a vested or superior right to the property of a testator, of which hostile executors were attempting to deprive them, and think that it required more than a preponderance of evidence to justify the sustaining of a will. There is no superiority as between heirs and legatees. A man has a right to [make such disposition of his property as he desires, and if he has testamentary capacity and is not swayed by fraud or undue influence, such disposition should be recognized and made effective. Where a will is left the heirs have no rights to the property except such as are given by the will. It is only where a man dies intestate, or where a paper is propounded for probate, and probate refused on the ground that it is not his will and testament, that the Statute of Descents and Distribution becomes effective. Because the proponents come into court alleging that the paper propounded is the last will and testament of the deceased, the burden is cast upon them of proving due execution by, and the testamentary capacity of the testator. The burden of proof in will contests is governed by the rule
It is, therefore, better to charge a jury upon the burden of proof in a contested will case in the same language usually employed when giving such instructions in other cases. The reading of excerpts from judicial opinions in other cases is calculated to mislead rather than help the jury. In an opinion 'by the. Supreme Court of Pennsylvania it was well stated: “ Judicial opinions are written to guide judges, not juries, and the judge who presides at the trial is expected to deduce the rules of law applicable to the case from all that has been recorded for bis instruction, and to deliver them to the jury relieved, as much as possible, from the verbiage in which they are found clothed. There is no standard but the discretion of the judge himself to determine how much help he shall render a jury in weighing facts, and applying the law to them. Perhaps the least amount of aid is rendered where the law is delivered in the form of copious extracts from judicial opinions in other cases.” ' (Hood v. Hood, 25 Penn. St. 417, 422.)
The surrogate upon the trial found that as to the due execution of the will, and on the objection that the will was procured by undue influence, there were no contested questions of fact "to be submitted to the jury. We concur in that determination. There was but one objection which he held raised a question for the consideration of the jury upon the evidence, that of the testamentary capacity. We hold that the verdict on that question was contrary to the weight of the evidence, and under the authority of sections 2763 and 2538 of the Code of Civil Procedure we reverse the decree of the Surrogate’s Court and the order denying the proponents’ motion to set aside the verdict and for a new trial, with costs to all the parties who filed briefs in this court payable out of the estate, and order a new trial of this question: At the time that said propounded paper was executed, was the said
Clarke, P. J., and Laughlin, J., concur; Smith and Merrell, JJ., dissent in part.
Concurrence in Part
I concur in the opinion of Mr. Justice Page in the holding that the executors are entitled to a new trial on the ground that the verdict is against the weight of evidence. In the conclusion of the court, however, limiting the right of retrial to the issue of testamentary capacity, in my judgment, such limitation is unauthorized. Two issues were presented, first, the issue of undue influence, and, second, the issue of testamentary capacity. The court excluded from the consideration of the jury the question of undue influence. The contestants could not appeal from that ruling because they are not aggrieved by the judgment. The will was declared invalid. Nor could the contestants sustain this judgment upon any exception to this ruling unless the evidence so far preponderated in favor of the contestants upon the question of undue influence as to authorize the court to direct a verdict. The contestants, therefore, in my judgment have, upon a new trial, the right to litigate the question of undue influence, either upon the same or upon further evidence. (City of Buffalo v. D., L. & W. R. R. Co., 176 N. Y. 308, 311.) I, therefore, dissent from such limitation.
Furthermore, I do not agree that the destruction of the letters by the clerk of the executors was not competent evidence. Its significance was perhaps magnified on the trial, but the relations between the decedent and his relatives were vital and material, both upon the question of undue influence and upon the question of the testator’s competency. If the question of competency depends, as it clearly does, in part upon the appreciation of the moral claims upon his bounty of. those who were in part excluded by the will, I cannot follow the reasoning which would hold that the destruction of any evidence which might bear upon that question was not a subject for the consideration of the jury, as an implied admission that if such evidence had not been destroyed, it might
Merrell, J., concurs.
Decree and order reversed, with costs to all parties who filed briefs in this court, payable out of the estate, and a retrial ordered upon the issue of testamentary capacity.