193 A.D. 362 | N.Y. App. Div. | 1920
Lead Opinion
A fair statement of the facts in this case which are supported by evidence rather than the assertion of counsel leads irresistibly to the affirmance of the decree of the surrogate.
Wesley Hall and his wife never had any children of their own. Laura Kerwood, the residuary legatee under the will which has been probated, was taken into the Hall family when about three years of age. There appears to have been some pretense at adoption, but the proceeding was informal and whatever papers were executed were destroyed by Mrs. Hall before her death in 1917. Mrs. Kerwood was known as Laura Hall and lived with the family until her marriage, and for a period of twenty years. Frank Hall, one of the contestants, in his petition to intervene on the ground that he was the legatee under former wills, says that he “ was apprenticed to said Wesley Hall by the superintendent of the poor of Saratoga county on or about the month of December, 1885, at which time he was less than one year of age, and was reared by and resided with said Wesley Hall and his wife, Helen Hall, continuously, until the death of said Helen Hall on or about the 14th of December, 1917. That shortly after her death your petitioner was married, and the said Wesley Hall made his home with petitioner and his wife until on or about October 20th, 1918.” The premises occupied by the Hall family consisted of two parcels operated as one farm. Helen Hall appears to have had some differences with Mrs. Kerwood and some time before her death deeded her portion of the farm to the contestant Frank Hall, who was not related to her in any way, as Mrs. Kerwood was not. Subsequent to the death of Helen Hall, and while Wesley Hall was living in the home of Frank Hall, Wesley Hall deeded his portion of the farm to Frank Hall, the latter giving back a purchase-money mortgage for $1,500, and Frank Hall and his wife giving a joint note for $3,000, making the consideration for the farm, including some
The evidence which was furnished by the contestants indicated that there had been an estrangement between Wesley Hall' and Mrs. Kerwood. Apparently this was more particularly with Mrs. Hall, shared in some measure by the husband. There was evidence that Wesley Hall spoke well of Frank Hall and of his wife in the summer of 1918, and that in October of that year the testator, who had been living with Frank Hall, went to live with Mrs. Kerwood. Emma Hall, Frank Hall’s wife, testifies as to this alleged kidnapping that “ on Wednesday he [testator] was out in the yard and Charles Kerwood [Mrs. Kerwood’s husband] came by; he got in with him. This was in the morning, * * * and then he came back that after
This is the strongest testimony adduced in support of the assertion of counsel that this testator was kidnapped. The positive testimony of the witnesses is that the testator was a vigorous man of seventy-five to seventy-seven years of age, one witness expressing a vague guess that he was eighty-two. A wagon in charge of a woman and a girl drives up to the Hall house in broad daylight, with both of the Halls within calling distance, and this vigorous old man, in the possession of all his faculties, comes out of the house and gets into the wagon and goes away, and this is called kidnapping. Counsel, after quoting this testimony, adds: “ From that day until he died the testator stayed at the Kerwood farm,” although the undisputed evidence is that he was at various places unattended by any one during the months that he lived at the Kerwood home, and not a syllable of evidence is adduced that Mrs. Kerwood or any one in her behalf ever made a suggestion as to what the testator should do with his property. We are asked to hold, however, that the surrogate erred; that it was his duty to permit the jury upon this kind of evidence to guess that he was improperly influenced in the making of his will. Mrs. Kerwood, if she had been an entire stranger, might have induced Wesley Hall to- come to her home to five without violating any rule of law with which we are familiar. She might, as a stranger, have suggested any claims to his bounty which might occur to her without any legal transgression. It is only when the suggestion is made under circumstances which in law are deemed to operate as a suppression of the judgment or desires of the testator, and to substitute those of the person exercising the power, that there is that undue influence or fraud which the courts condemn, and nothing of the kind is pointed out in
August nineteenth George D. Hall appeared in this proceeding and filed his petition. He thus became a party to this proceeding. The jury was then present. On his petition a citation was issued to next of kin, and the proceeding adjourned. He made no objection to the jury or to their being brought back. Had he objected that jury could have been discharged and a new jury drawn in his presence. This constituted a waiver.
The surrogate having taken the case from the jury, it is entirely immaterial whether the jury was properly impaneled or not, there being nothing to submit to it.
The decree of the surrogate should be affirmed, with costs.
All concur, except Kiley, J., dissenting, with a memorandum in which H. T. Kellogg, J., concurs.
Dissenting Opinion
I dissent upon the ground that the fifing of a new petition and asking for a jury upon his initiative was a new proceeding. George D. Hall had no notice of the drawing of a jury as provided under section 2540 of the Code of Civil Procedure. He could not be forced to trial before a jury drawn in another proceeding; he never had any notice as provided under section 2540 of the Code of Civil Procedure, and no order was made as required by sections 2538 and 2540 of the Code by the surrogate in his proceeding.
H. T. Kellogg, J., concurs.
Decree affirmed, with costs.