62 N.Y.S. 673 | N.Y. App. Div. | 1900
The appellants question in this proceeding the testamentary capacity of the testator, and upon this appeal seek to reverse the decree of the surrogate admitting the will of the testator to probate solely upon the ground'that, upon the evidence, his testamentary capacity was not established. In determining this question, we are mindful
DeWitt C. Lawrence, the testator, at the time of the execution of the will, was about fifty-seven years of age. He had been for many years in active business as a member of a banking house in the city of New York, a member of the New York Stock Exchange and a representative of his firm upon the floor of the exchange. During the troublesome time which followed the year 1873, the testator seems to have been left in charge of the business of his firm, his brother and partner being in Europe at the time. Upon the return of his brother from Europe, he resumed his duty as the representative of his firm in the Stock Exchange and continued in active business until the year 1886. In that year two sons of the testator’s nephews were taken into the firm; the testator continued as a general partner, but he ' seems to have abandoned active participation in the business of the firm, and while retaining his interest and a share of the profits, he left the active management of the business to his partners. The testator was married early in life and had six children, one son and five daughters. His first wife died about 1882, and at the time of the execution of the will two of the daughters were minors, two daughters were married and the eldest daughter was an invalid. In the spring of 1887 the testator desired to remarry. His proposals were at first rejected, but subsequently and in May it was arranged that, as his proposed wife was about to visit Geneva, Switzerland, where her family resided, she should consult them, and if their opinion was favorable, upon her return to New York in the fall the marriage should take place. This being the situation, the testator went to his legal adviser, Mr. William Allen Butler, and gave instructions as to the preparation of the will in question, in consequence of which a will was prepared by Mr. Butler and duly executed by the testator. After its execution, May 9, 1887, it was shown to the testator’s intended wife, and upon her asking him whether the provision that was made for her was fair to his children, he replied that it was, as he had a large income
There is no question but that the deceased was insane when he arrived in New York in October, 1887, and so continued until his death. The evidence disclosed that the testator up to the time that he sailed for'Europe, had a large circle of friends, with whom he was in the habit of associating; that he attended to his ordinary business with intelligence and success, and presided over and managed his household affairs. His relations with his children seem to have been affectionate, arid, considering his means, he seems to have made liberal provision for their support. Neither his children nor his relatives and friends testified to any facts before his departure for Effrope which would seriously tend to show any impairment of his reason; and while the testator’s brother and Ms son-in-law have testified in opposition to the probate of the will and detailed certain facts from which some conclusion of mental impairment is sought
There is another phase of mental disease when a person having a strong delusion makes a will controlled by such a delusion, or so under its influence that the testamentary disposition of his property is affected thereby, which it is not necessary to consider-in this case, as. there is no evidence that the testator had any delusion as to his property, or that could; affect its - disposition. It is quite apparent that if this testator had died on August eleventh, the date of his arrival in Paris, there would have been no suspicion that lie lacked testamentary capacity. Up to that time his memory appears to have been entirely unimpaired, and his brother, who was called as a witness for the contestants, in speaking of the date of the- execution of the will, testified : “ No doubt he knew of the amount of his property at that time. ITe had a very acute memory and could state figures and circumstances with great precision. His memory never failed.” And the testimony of Mr. Butler in relation to the instructions given by the testator for preparing the will, shows conclusively-that the testator had at the time a clear appreciation of the situation, and understood exactly what disposition he wished to-make of his property. He clearly understood and appreciated the amount of his property, and appreciated the fact that his children would be entitled to a considerable property over which he had no control. He appreciated the fact that during his life he would be able to provide a suitable support for his children from his income, and he no doubt anticipated that before his death his children would inherit the amount to which they would be entitled upon the death of their grandmother; and considering this quite natural presumption, his desire to make a suitable provision for the woman whom he wished to make his wife and any children that ■ she should have as a consequence of the contemplated marriage, was not at all unreasonable. Counsel for the contestants frankly stated upon the argument that the will itself was not so unjust as to afford a presumption that it was the result of an insane mind, prompted by delusions or the undue influence of others, and certainly, con
We have, therefore, only the testimony of the experts from which testamentary incapacity can be inferred. The substance of their testimony is that the testator on October 16,1887, was in a condition of acute melancholia, with delusions; that the onset of that disease had been of a slow and steady character, and that the condition that he was in at that time was the culmination of a progressive disease which had continued from four to six months.
Dr. Starr was asked: “ In your opinion, was his mental condition such that he was at that date, May 9, 1887, capable of making a rational selection among the members of his family as the objects of his bounty ? ” A. “ I don’t think anyone could say definitely yes or no to that question, but my impression would be no. A man does not become insane on a certain date. He becomes gradually insane, and the probability is as to the degree of that insanity depends upon the length of time of the onset. The probability is that at that time his mind was deranged.” On cross-examination he was asked : “Nevertheless, there is a possibility that it might have been in such a condition that he might have made such a disposition which was rational and proper?” A. “There is a possibility.”' He further testified that the time of the onset of such a disease was. never to be determined absolutely in a case like that. ' There was usually a slow onset of the disease, extending through several months. “My testimony was that he was insane at the time I examined him, but that it was a matter of opinion whether he was insane at the time that the will was made. I did not swear that he was insane at the time the will was made. ■ * * * My opinion is that in all probability he was mentally affected at the time he. made his will; ” and then when asked whether in his opinion it was the marriage which caused his insanity, the witness answered: “ I think it is very difficult to state. I think the chances are that this man was a very nervous man, approaching insanity, and that marriage may have been just the exciting thing that sent him off.”
Dr. Allen, xxdro had been the testator’s medical adviser up to about June, 1886, less than a year prior to the execution of the will, was also examined. He testified that the testator had been worried about his xvife’s illness for txvo or three years prior to her death in 1882; that he prescribed for the testator after his xvife’s death; that the testator spoke to the witness frequently about his business and his troubles in his copartnership affairs, and with his brothers, his brothers’ children and his oxvn children ; that he was- fearful that he had some, serious disease of his heart that would terminate his life, and xvas also fearful that he had other diseases of which the doctor could find no indications. But during all this time it does not seem, that the xvitness had any suspicion that the testator was mentally diseased. The testator’s brother testified that he asked Dr. Allen if he thought there was any danger of softening of the brain, to which the doctor replied, no, that he did not think it was anything more than a nervous trouble. Dr. Douglas was also called as a xvitness. He testified that the testator consulted him professionally on the fourteenth of June, four days before sailing for Europe; that his manner and appearance, his conversation and conduct were rational; that his conversation xvas intelligent, and that the witness never observed any evidence of an irrational character about the ■testator. That was after the xvill xvas made.
It follows that the decree of the surrogate admitting the will to probate must be affirmed, with costs.'
'Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.
Decree affirmed, with costs.