17 Mills Surr. 536 | N.Y. Sur. Ct. | 1916
Peter B. Moyer died in the town of Minden on March 16, 1916, at the age of eighty-two years. He-had been twice married but left no widow, his second wife having died upwards of sixteen years previous thereto. He left surviving him as his only heirs-at-law and next of kin Uathaniel 0. Bleekman, George M. Bleekman, Helen Ethel Bleekman Bailey and Clara Pearl Bleekman, his grandchildren, they being children of a deceased daughter by his first marriage, all being of full age except the last named who is a minor upwards of seventeen years of age.
On March 27, 1916, there was filed for probate an instrument, bearing date January 26, 1914, purporting to he his last will and testament, which instrument was drawn by Harry D. Walts, a nephew of the deceased^ and witnessed by said Walts •and his law partner, Samuel L. Toung. One Charles W. Bowers was named therein as executor. This instrument
This will further provides that -said legatees or the wife or husband of either shall not present any bill, claim or demand against his estate except promissory notes, or other obligations, given under his hand, and, in case said persons should present such claim, that the devise or legacy to such person should be forfeited to the other devisees or legatees.
Thereafter and on the 12th day of April, 1916, there was filed for -probate an instrument bearing date January 5, 1916, purporting to be the last will and testament of said deceased. This instrument was drawn by Henry M. Eldredge, an attorney, and was witnessed by said Eldredge and one Elfonzo Green. One Frank W. Bander, a nephew of decedent’s first wife, was named • therein as executor. This instrument directs the disposition of decedent’s ¡oroperty as follows: “ Unto my grandchildren, the children of my daughter Olara, all of my property, both real and personal, which I now have or may have at the time of my death; except that I will, .devise and bequeath to John Van Auken, the one-tenth part of the -residue of my estate.” He authorizes, empowers and directs his executor to sell any and all real estate. Ho provision- is made in this instrument regarding the presentation of claims by any. legatee or devisee.
• Objections to the probate of the last named will were filed by Háthaniel 0. Bleekman, Jr., George M. Bleekman, Helen Ethel Bleekman-Bailey, said grandchildren, and John Van Auken, the legatee named therein, through .Walts & Young, their attorneys, - who were'also the- attorneys representing the executor in filing the first named will-for probate.
Shortly after the commencement of the proceeding for the probate of the last named instrument, there was served upon the executor named therein a written request signed by each adult heir and next of kin and by the general guardian of the said minor, and also by the said John Van Auken, requesting that said executor offer no more than formal proof of the subscribing witnesses to substantiate said last named instrument, requesting him further not to oppose the probate of the first mentioned will and expressing it to be their desire that the first named instrument be admitted to probate.
This case presents a novel situation; that of the heirs at law and next of kin opposing probate of the instrument which, according -to its terms, .appears to ■ be most favorable to them and asking that a prior instrument, under which it appears they would receive less of decedent’s estate, be admitted to probate. On the trial of the issues raised, the special guardian, following the apparent wishes of his ward, joined with the contestants in opposing the will under consideration and conducted the examination of the witnesses produced and made the oral argument before this court on behalf of all of the contestants, the record accordingly making it appear that the minor, after all, was the active contestant.
If I could consider first and only the wishes of all of the parties directly interested herein, I would be inclined to accede to their wishes and deny probate of the instrument against which they have opposition, and admit the prior instrument. The law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of .sufficient- mental capacity and observed in the .execution of-the instrument the required legal formality and
Recognizing my duty to be to consider first and only the will of the decedent and see that the same prevails, I must eliminate entirely from any consideration herein the wishes of the contestants and direct my attention only to the questions of fact presented by the evidence and to applying the law governing in such cases. In view of the slight difference in the testamentary provisions of the two instruments mentioned, and of the fact that all of the parties directly interested are so completely in harmony as to the manner in which they would distribute the decedent’s estate, and having knowledge of the fact, as well, that the executor under the will opposed felt it his duty to endeavor to establish its validity and see that the decedent’s wishes as therein expressed were fulfilled, I cannot refrain, in passing, from expressing it to be my opinion that the trouble and the expense to which the parties in interest have been put in this contest were hardly warranted.
The objections filed raised the issue of due execution of the instrument and that of undue influence as well as that of testamentary capacity, yet no testimony was presented by contestants directed to the first named issues, and from all the evidence presented I am satisfied that the instrument was signed, sealed, published and declared by the deceased in conformity with the requirements prescribed by statute, and that he was at the time under no undue influence or under any restraint, and so find.
There is left for further consideration the only remaining issue, that of testamentary capacity of the deceased at the time of the execution of such instrument. It appears from the evidence that decedent’s property at the time of his death aggre
Many witnesses were produced and examined on the part of the contestants, some of whom were wholly disinterested and others were members of the family of John Van Auken. From the evidence of such witnesses it would appear that decedent, during the last two years of his life, had a defective memory, complaining at times, himself, thereof and often complaining that he was not competent to do business, complaining about his head in connection therewith; that he did many things that impressed such witnesses as being irrational and which to the average individual might appear to have been irrational and the acts of .a person of unsound mind; that during the last year of his life he did not talk much, often sitting about the house saying little and acting in a way which impressed the witnesses as being irrational; that he was careless about his person and clothing and did many things which showed the loss of ethical feelings and the ascendency of the grosser instincts; was uncleanly in his habits and dress. As to his physical condition and appearance, he was described as being stooped in figure, walking with a shambling gait, tongue hung out of his mouth,
The physician who attended him from time to time from May, 1914, until his death, described his physical and mental condition and said his physical condition was that of a senile individual, decrepit and showed, considerable evidence of general physical weakness, and that physically and mentally he was gradually growing weaker from June, 1915, to the time of his death; that he was suffering from chronic Bright’s disease, hardening of the arteries and chronic valvular heart disease. He said decedent called at his office on occasions during said period, having made two calls in January, 1916, unaccompanied by any person, and answered questions put to him. On cross-examination, he said a few of the, decedent’s actions were rational and a good many were irrational; that in his talk with decedent in January, 1916, he did not remember what was said but that decedent answered questions put to him and that he did not recall anything that indicated on such visits one way or another as to rationality; that there was nothing irrational in his answers to questions. He gave the cause of death to he from the final stage of Bright’s disease — uremic coma.
Another physician examined as an expert on the part of the contestants, testifying upon a hypothetical question propounded, gave his opinion that decedent was insane.
On the part of the proponents several persons who had known decedent for many years of his life testified to meeting him from time to time during the last two years and to conversations had with him and his conduct and appearance, giving their opinión that his conversation and conduct impressed them as being rational; that his clothing did not appear dirty, tongue did not hang out; that he did not drool at the mouth, and that his conversation could be easily understood. From all of the testimony it appears that decedent, with the exception of a couple of periods of sickness for a short time, on each occasion,
Senile dementia is defined to be that peculiar decay of the mental faculties which occurs in extreme old age, whereby the-person afflicted is reduced to second childhood. I think there -can be no doubt but that the decedent was afflicted with senile dementia in some stage of its progress on January 5, 1916, but whether it had reached that last .stage wherein he might, by reason thereof, have become wholly incompetent to enter into a binding contract or even to execute a will, is a more serious qutesion. If I should rely wholly and only upon the testimony of the lay and medical witnesses and disregard entirely the testimony of the subscribing witnesses, I would entertain a doubt as to the question of his testamentary capacity, and such a doubt as would make this case, no doubt, one where there should be no straining after probate. In the case of Miller v. White, 5 Redf. .320, however, the learned surrogate held on the issue of sanity: “ If upon the, whole case the fact remains doubtful, the will cannot be rejected.” This rule is sound, to my mind, where the doubt existing is equally balanced as to
The statute provides that a will to be valid and entitled to be admitted to probate must be executed in the presence of at least two persons who shall be selected by the testator and by him requested to be subscribing witnesses thereto, and that they shall subscribe the instrument as such, in his presence, after hearing him declare such instrument to be his last will and testament. This provision, required to be followed with such detail, is not only to prevent fraud and the exercise of undue influence, but for the further and as important purpose of having present at the time of the act of execution persons of the testator’s own selection who can testify as to his mental condition as of that time. That the court, which may be called upon to pass upon the competency of the testator, may not have to depend largely or only upon a recital of conversations with and description of conduct by, nor the opinions of persons who may be produced by either side to a controversy over the question, many of whom may, through interest in behalf of the side by which they are examined, be biased; or be unable from lack of proper opportunity to observe or of ability to give a reliable opinion at or about the time of the execution of the
Another reliable source of evidence, and one that must be taken into consideration in connection with the evidence of all of the witnesses, is that furnished by the testamentary provisions of the instrument in question, considering in connection therewith the persons who were the natural objects of the testator’s bounty. Turning for a moment to a consideration of the circumstances connected with its, making and execution and to the provisions of the instrument in question it cannot be said that its terms are the product of any mind other than that of the testator, nor can it be said the attempted disposition of his property was such an unusual or unnatural testamentary disposition as to raise a suspicion that testator was of unsound mind, particularly as to its provisions, when a comparison is made with the terms of the prior alleged will. It appeal's that decedent, referring to said prior will, stated that he wanted to make a change therein, not being satisfied with it, and that he also gave certain other reasons why he wanted to make a new will. Whether the reasons given were sound or not is of no import, so far as the act in making the will, itself, is concerned, and there is no satisfactory evidence to warrant a finding that he was at the time laboring under any delusions which entered into the testamentary disposition of his property thereunder.
Coming now to the day and time of the execution of the
There is no doubt as to the fact that decedent was an old man Who had lost much of his physical and mental strength; And neither can there be any doubt as to the fact that decedent did visit the office of Mr. Eldridge on the 5th day of January, 1916, unaccompanied by any person, and, considering the terms of the instrument in question, no doubt that he did dictate such terms and did sign and execute the instrument. I am not warranted in disregarding, or failing to give due weight to the testimony of the subscribing witnesses, and, unless I should wholly disregard such testimony and rely only and entirely upon the evidence of the other witnesses, I must find that testator, on the day and at the time of the- execution of said instrument, was possessed of sufficient mental capacity to make and execute a valid will. Taking into consideration all of the evidence before me, I do find and decide that Peter B. Moyer was, at the time of executing "the instrument in question, possessed of sufficient
Probate decreed.