126 N.Y.S. 699 | N.Y. App. Div. | 1910
Sara A. McCarty, a resident of the county of Kings, died at Goshen, Orange county, on the 17th day of August, 1909, leaving a last will and testament relating to both real and personal property, in which she nominated and appointed Joseph F. McClean and Everett Greene, the latter an attorney at law, as executors. This will attempts to dispose of a large estate, and has been admitted to probate, the contestants appealing to this court from the decree of the Surrogate’s Court admitting the same to probate, it being the contention of the contestants, certain heirs at law and next of kin, that the paper propounded as such . last will is void, being tainted with undue influence amounting to fraud. ;
The will in question bears date of March 5, 1906, and the testatrix lived until the 17th day of August, 1909, or more than three years aft.er making the will, during which time, so far as the evidence discloses, she retained possession of the instrument. At least ' the evidence in relation to the possession of the will goes no farther than to show that at the time of the execution of the same it was delivered to the testatrix, and possession having been shown in her, it must be presumed to have continued until the contrary is-made to appear. The grounds of objection asserted originally on behalf of the contestants were: (1) That the propounded instrument is not the will of the testatrix; (2) that the propounded instrument is not properly executed according to law; (3) that the testatrix was not of sound mind, memory and understanding, and capable of making a will; (4) that the propounded instrument' was not freely executed by the testatrix ; (5) that-the execution, if any, of 'the propounded instrument was procured by fraud and undue influence upon the testatrix by the executors and residuary legatees, or their privies, and (6) that the propounded instrument is illegal and void in respect to the residuum. -Upon the hearing before the surrogate, after some evidence had been introduced tending to show that the testatrix was of sound mind, counsel for the contestants"suddenly abandoned this phase of the case and asked to amend the answer, so that it should be conceded that the testatrix was of sound and disposing mind, which was done, and all of the other objections, with the exception of the one relating to undue influence, were practically
• We áre of the opinion that the relations of the executors, were such as to warrant the court in closely scrutinizing the will and the surrounding circumstances^, but that there were no facts disclosed by the will, itself, or by any of the conditions surrounding its execution, which give rise to" the presumption of fraud'; that is an issue which must always be proved, and cannot be assumed. “A person of sound inindj acting with- full knowledge of her 'affairs, competent to understand her relations to those whom slié 'wished to benefit, may bestow her bounty as-she likes and no presumption of unfair' dealing can arise, although one of the beneficiaries happens, to. be her attorney. -Undue influence,, when relied upon to defeat a testamentary disposition-,' must. be. proved, and not merely assumed to exist. (In re Smith, 95 N. Y. 516.). It was the duty of the contestants to prove, if 'they .could,-that the will was.- other than the-free act of the. testatrix, and until some, impediment was' shown, there was.no need of further testimony from the proponent upon the point. * *• * The evidence discloses a complete knowledge 'on the part of the testatrix of tire contents of the will, a full legal capacity and the absence of restraint.” (Loder v. Whelpley, 111 N. Y. 239, 250.) The contestants rather reluctantly admit this general rule, but it is urged' that the fiduciary relation, coupled
It sounds well to declaim about the exclusion of those who are the natural objects of one’s bounty, but before we assume fraud as against reputable citizens, we should inquire who these “ natural Objects” are, and what claims they had upon the testatrix’s bounty. The .contestants who appear here are Mary E. Butler, a first cousin of decedent, Bose F. Kane, a second cousin of decedent, and' Mary Kane, who occupied . the same relationship as the • latter. There were twenty-eight other, cousins and one second cousin of the decedent, and perhaps others, who have not sought to interfere with the probate of the will, and these" cousins and second cousins of the decedent are the only ones embraced within the group of “ natural objects ” of the testatrix’s bounty, and who are relied upon to afford the evidence of fraud to overthrow this Avill. Fifteen of these cousins, so far as known, live in Ireland, the most of them in County. Down; one of them was last heard of in Australia and another in Alaska; one of them resides in the Isle of Man ; four' of them in Glasgow, Scotland ; three of. them, legatees under the will, live-in Brooklyn, Bosendale, Ulster county, and Brooklyn, respectively; one hi San Francisco and another in Liverpool, England, and the póníestants Mary E.-Butler, Mary Kane and Bose Kane, as well as Arthur Kane; a second cousin, live either in Greater Mew York or Mount Vernon. The decedent.was at least'sixty years of age, find had resided in this country for many years, and it is easy to see how she could have been oblivious to the claims -upon her of these cousins in Ireland, Australia, Alaska, Glasgow and Liverpool, .whom, she had probably never seen or heard of except as a mátter of family record ; and it might even be guessed that she was not recklessly unmindful of the duties of kinship in not keeping track
Having placed these “ natural-objects of the testatrix’s bounty.” in their proper light,' as they appear in .the la'vr, let us examine .briefly the will, that we may discover whether it does, in fact, disregard the claims of those who had a fight to expéct from lief. First she gives to each of two priests the sum of $5,000, with a. request for masses for the repose of her soul..- Then she gives to her’executors' $50,000 .for a memorial for her deceased brother, John McCarty,, “according to my. wishes expressed-to them.”.' Mext she gives $i,000’each to a day nursery: and to a hospital, each of them identi.fled with the Roman Catholic church, in which it appears from the testimony she was much interested. This is followed by a bequest .of $1,000 to a certain bishop and his successors'- for the purpose of caring for her family lot in the cemetery. Following this is a bequest of $15,000 to the widow of her deeeaséd brother, and like- ■ wise the-life use of the family home — for it appears from the testimony that.the decedent and her brother and" his wife had\all.lived together at 267 Berkeley place, Brooklyn, and that the widów still resided there at the time of the limiting of the will —,to the .vvidow: . Added to this is-a trust fund of. $50,000, the in come, of WhicnJs to be paid to the. widow of her deceased brother. Clearly there is ■ nothing unnatural or inhuman in these provisions. John-McCanv was her only brother;' it is intimated, rather than proven, that some^ .part of her-estate came from this brother, and in making these pro
What is there about this will which justifies a presumption that it was fraudulently procured V FTo fact is shown which casts suspicion upon it. The subscribing witnesses were persons personally selected by the decedent; Mrs.- McCosker was asked by the decedent to become a witness to her will more .than a month before its final execution, and on the day of its execution Mrs. McCosker was at the home of the decedent, and the two of them went -to the office of the decedent’s attorney, one of her executors, for the purpose of executing the will, and when they arrived there decedent took the will from a bag which shé carried and declared the same to be her will and asked Mrs. McCosker and William J. Buttling (former sheriff of. Kings county), whom she had sent for, to sign the same as witnesses. Mr. Buttling testified that he had known the testatrix from the time that he was a boy; that he knew her well enough so that he addressed her as “ Sara Ann,” and Mrs. McCosker testified that she had known her intimately for many years ; that they visited at each other’s houses, and that at the time of the original
We think the disposition made of-the matter by the learned surrogate was in harmony with tlie law, and that tlie decree should be-affirmed, with costs., - -' "
■ HirsohrErg,. P. J., Burr,. Thomas and Carr, JJ., concurred. •
' Decree, of the Surrogate’s Court of Kings county affirmed, with . costs. '