69 A.D. 481 | N.Y. App. Div. | 1902
■ At the close of September, 1900, the testator fell ill of the typhoid fever. He made his will on October eleventh, at two o’clock in the morning, and lived for eleven days thereafter. Hypo-static pneumonia manifested itself within a week or ten days of lii's death, but his physician testifies that he appeared to improve until a short time before it. The testator Was sixty-eight years old, and left a widow, but no heirs, except one brother. He made- his wife his sole beneficiary. The testator -was a former policeman, who owned the house wherein he and his wife lived. It does not appear that he left any other property. The brother, who is the contestant, is a fireman in the service tif the city of . New York. He attempted to show, mainly by the testimony of experts, first, that the subscription of the will was not the act of the testator .; and, second, that the testator coiild not have been competent under the physical and mental conditions attendant upon his disease.
First. Dr. Welty, the attending physician, says he made a. visit to the testator after midnight of October eleventh, which he would have made earlier but for detention; that he found a marked change in the symptoms, especially as to the pulse ; that he told the wife of the change, and that then, for the first time, he learned that his patient had not made a will. Thereupon, he fetched Daniel O’Reilly, Esq., a lawyer whom he knew, but who was a stranger to both the'patient and his wife. The lawyer drew the will and he and Dr. Welty became the witnesses. Dr. Welty testifies tliat the pen waa in the hand- of the testator, who attempted to handle it without assistance,” making one effort, but that “ he did not succeed very well,” or not at all. The witness saw that the patient was
If a testator is physically unable to sign his name, but requires assistance, he may call in another to his aid, even to the holding of his hand and guiding it. The extent of that aid, so long as it is assistance, does not make the signature invalid, if the signing was in any degree an act of the testator, acquiesced in and adopted by him. For in such a case he simply summons outside physical power to supplement his impaired strength. The question whether the signature is the act of the testator does not turn upon the extent of the aid, but whether the aid was assistance or control. If, against the wish of the alleged testator at the time, or without his consciousness as to the purpose, another writes the name with a pen which is merely in physical contact with the hand of the alleged testator, then the signature is not recognized as made by the latter. (Butler v. Benson, 1 Barb. 526; Campbell v. Logan, 2 Bradf. 90, 97; Vandruff v. Rinehart, 29 Penn. St. 232; Fritz v. Turner, 46 N. J. Eq. 515; Wilson v. Beddard, 12 Sim. 28; Den ex dem. Stevens v. Vancleve, 4 Wash. C. C. 262.)
The contestant called an eminent expert in handwriting, who had compared the signature of the will with two normal signatures of the testator. He testified that he failed to see “ a particle of his handwriting ” in the signature, and that in his opinion, although he would not pretend to say that the testator’s hand did not touch the pen, the testator had no superintendence, either mental or physical, in the act. The grounds for his opinion were that when two hands are trying to make a signature with two mental conceptions, they run riot, do not act in unison, and the result is a sprawl and comparative illegibility. If, in seeking to make a joint signature, the
Second. The contestant also called a medical expert who testified as to the character of the disease of the testator and of its effect upon the subject. He did not answer a hypothetical question, but he testified that he had heard the evidence, which at that stage consisted of the testimony of Dr. Welty and of several lay witnesses who had at times visited the testator. Upon such foundation he was permitted, without objection, to give his opinion that a man at the time of the execution of the will would not have testamentary capacity. Another medical expert, in answer to a hypothetical question, agreed with his brother physician. He admitted that if there were no delirium the testator would be competent, but said that in view of the time of the history of the disease, and of the temperature of the patient, delirium must have existed. Opposed to these experts is the testimony of Dr. Welty and the consulting physician, Dr. Ford. The former testifies that at the time the will was executed the mental condition of the testator was good ; that he responded favorably to the suggestion that he had better make a will; that he named without any suggestion his wife as a beneficiary, saying “ My wife, who else ? ” (which was in effect a rejection that any other could be considered); that the testator’s mind was very clear for a man under the' circumstances, and that he seemed to be of sound mind and memory, without sign of mental aberration. As seen, the patient was not in extremis, for he rallied and lived for eleven days thereafter. Mr. O’Reilly testifies that in answer to qxiestions the testator expressed a wish to make a will, named his xvife as sole beneficiary, said moreover, in answer to a specific question, that he wished to provide for none other, and further testifies that the will was then prepared, by him as directed, read over to
The testimony of. the contestant and of the contestant’s son, and Cf others who visited him as to his listiessnéss or state of apparent indifference, and his refusal .to talk. with them, may be fully explained by the factj which they observed, of his suffering. These facts are not necessarily inconsistent with an ability to rouse and to address himself to the important matter of making his will. I find no evidence of undue influence, and surely the provision made for his wife .to the exclusion only of a full-grown man, with assured income aboiit as great as that, enjoyed by the testator when in active life, does not lend any force to the contention of the contestant.
The decree of the Surrogate’s Court should be affirmed, with costs.
All concurred.
Decree of the Surrogate’s Court of Kings county affirmed, with costs. •