15 N.Y.S. 828 | N.Y. Sur. Ct. | 1891
The will of the above named deceased was admitted to probate by my predecessor, Mr. Lord, some time in 1889, after a somewhat careful examination and cross-examination of the subscribing witnesses by the attorneys for the respective parties.. Subsequently, and about February, 1890, by consent of the parties, the probate of the will was revoked, upon the stipulation that the testimony already taken should stand; and thereupon the contestants proceeded to offer testimony upon their part. The will before the present Surrogate is contested upon four grounds:
First, that the will was not executed with due statutory formalities.
Second, that the signature to the will was a forgery.
Third, that the execution of the will was procured by undue influence or fraud.
Fourth, that at the time of the execution of the will the decedent was not of sound mind and memory.
This will remained in the possession of Mr. Snyder until after the death of Mrs. Williams. Not long after the death of Jacob F. Hall, which occurred the 28th of February, 1887, Mrs. Williams removed to the house of Norman Carpenter, with whom she resided until her death. Harriet Carpenter, the wife of Norman Carpenter and principal beneficiary in the will, was the adopted daughter of Mrs. Smith Harrington, who was a sister of Mrs. Williams. Mrs. Har
These statements, and many others testified to by the witnesses, show that the relations between these persons, Mrs. Williams and Mrs. Carpenter, were very
The nearest blood relatives of Jacob F. Hall and Mrs. Williams were three cousins residing in the state of Connecticut, who are the contestants herein. There had been some visiting and some correspondence between them, but, for the thirty years prior to the death of Jacob F. Hall and Mrs. Williams, the visits between them were very few, and the letters were quite infrequent, not to exceed one or two for a period of ten years prior to the death of Mrs. Williams. After the death of Jacob F. Hall, and while Mrs. Williams was residing at Mr. Carpenter’s, on the 28th day of August, 1888, Mrs. Williams executed a deed of the farm which she had inherited from her brother to Harriet Carpenter, for a consideration of $1 and affect tion. This deed was drawn by Jonathan Hoag, a justice of the peace residing some three or four miles from the residence of Mr. Carpenter, who was a stranger to her. He drew it at the suggestion of Mr. Snyder, who was himself informed by Mr. Carpenter that Mrs. Williams wanted a deed of the farm drawn. He prepared the deed, assisted by Mr. Snyder, and visited Mrs. Williams at Mr. Carpenter’s. Upon examining it she called his attention to an error. He had written the name of the' grantee as Harriet Harrington, instead of Harriet Carpenter. Thereupon he erased the name of Harrington and inserted Carpenter, and the deed was executed by her and acknowledged before him. The will of the deceased gives a legacy of $1,000 to Mrs. Carpenter, and $100 each to two other persons, and $50 each to two others, and
Considerable testimony was taken upon the trial in regard to the genuineness of the signature to the will. A large amount of expert testimony was produced upon each side, the contestants claiming that the signature to the will was not that of the deceased. The signature to the will (the Christian name) is written in two parts “ Roxa Lany.” It was usually written by Mrs. Williams in one word, “ Roxalana,” each syllable terminating in “ a ” instead of “ y.” It appeared, however, that she had upon one or more occasions signed her name “ Roxa L. Williams,” and her silver spoons and pillow-cases were marked “ R. L. W.” and “ R. L. H.” In her will she gives certain spoons marked “ R. L. H.” to one of the legatees.
The first question presented for decision in this case is: Was the alleged will executed in compliance with the statute ? The statute contains four requirements, the lack of either of which renders the execution of a will invalid: First, the instrument must be signed at the end by the testator; second, it must be subscribed, or the subscription acknowledged, by testator, in the presence of at least two witnesses; third, it must be declared to be his last will and testament by the testator at the time of the subscription, or acknowledgment of subscription, in the presence of each witness; fourth, it must be signed by each of two witnesses at the end, in the presence of the testator, and at his request. 2 Rev. St. p. 63, § 40.
First. The order, in which the formal acts of execution and publication should be done is not material, except that the testator must sign before the witnesses. Jackson v. Jackson, 39 N. Y. 153; Rugg v. Rugg, 21 Hun 383.
Second. The law does not require a technical and literal compliance with the statute; a substantial compliance with its requirements is sufficient. 1 Redf. Wills, (3d ed.,) *218, and cases cited.
I think the evidence shows that there was at least a substantial compliance with the statute in the execution of this will. First. The will was subscribed by testatrix at the end, in the presence of the witnesses. Second. It was at the time of making the subscription, but before it was signed, declared by her to be last will and testament. Third. The witnesses signed after the will had been subscribed by her, in her presence, and at her request, although the request to the persons to sign as witnesses was made before the subscription of the will. It has been held that the request to sign as a witness need not be actual, -but may • be implied from circumstances; as. “ where persons are called to witness a paper, which they do, in the presence of the testator, he at the same time, subscribing it, and declaring it to be his last will and testament.” Butler v. Benson, 1 Barb. 526; Hutchings v. Cochrane, 2 Bradf. 295. It has been further held that the declaration may be made immediately before, as well as after, the subscription, if on the same occasion, and forming part of the same
The next question, and one which was greatly contested upon the trial, is as to the genuineness of the decedent’s signature to the instrument propounded as her will. The contestants, in support of their contention, produced a number of signatures of the alleged testatrix, made about the time of the alleged execution of the will; notably signatures attached to the papers which Mrs. Williams executed upon taking out letters of administration upon her brother’s estate, signatures to the petition and bond, and also to the deed executed within a few months after the will. In each of these instances the Christian name “ Roxalana ” is signed in one word, whereas in the will it is signed “ Roxy Lany,” in two words, and is also differently spelled, —in the one case with two “ ys,” and in the other with none. And it is insisted that this mode of writing the name to the will affords evidence in itself that it was not written by the testatrix, because not in the usual spelling and form of her signature. It is further contended that, aside from the peculiarity in spelling, the signature, when critically examined, appears to be a simulated signature, and two expert witnesses, Prof. D. T. Ames and Dr.. Hagan, were-called, and testified to that effect; and photographs of the recent signatures of the deceased and that to the will were produced in contrast for examination.
And further, in support of their contention that
■ Upon the part of the proponent several papers and documents were produced, dated many years before her death, in which Mrs. Williams’s name was written “Roxa L. Williams; ” one of which, dated March 28, 1859, and purporting to be a conveyance of real estate by her to her brother, is signed “ Roxa L. Williams.” Another instrument, purporting to be a deed, said to have been executed by Mrs. Williams and her husband, dated February, 1847, the body of which appears to be in the handwriting of her husband, has her name written as one of the parties thereto (the Christian name) “ Roxa Lana,” in two words, although the name is signed by her in one word, “ Roxalana.” In another instrument, dated March, 1859, her name appears as grantee, in a deed from her brother, Jacob F. Hall, and is written “ Roxa L. Williams.” It also appeared that old silver spoons and towels and pillowcases kept at the residence of deceased, and used by her, were marked with the letters “R. L. W.” and “ R. L. H.” It is very apparent that Mrs. Williams, at an early period of her life, at times at least, wrote and recognized her Christian name as spelled in two separate words.
It further appears, from an examination of the will itself, that the name “Roxy Lany Williams,” wherever it appears, which is at the commencement of 'the
And, finally, it is quite unreasonable to believe that a person desirous of simulating the signature of the decedent would have written it in a form and mode of spelling so unlike the one commonly used by her. The proponent also produced a large number of expert witnesses, including Dr. Ward, a professional expert. But the greater number of the witnesses called by the proponent were cashiers and tellers of different banks in this city, who were accustomed to examine hundreds of signatures each day, and upon whose knowledge and skill in that department the safety
The remaining question, and the more serious one, is presented by the contestants’ contention that this will was the result of undue influence or fraud, and not the free, spontaneous act of the testatrix. It is urged that Mrs. Williams was a person of great age, (eighty-two years old,) somewhat feeble in health, shut off from ready communication with the world by reason of her lost hearing, residing with her aged brother, who was himself an invalid, and by reason of his malady, (softening of the brain,) incapable of advising with her; that the memorandum for the will was prepared by Mrs. Carpenter, the principal beneficiary, without the presence or knowledge of any
Upon the other hand, the proponent relies upon the general intelligence and capacity of the deceased -r the absence of proof of impairment of memory, or of the exhibition of mental weakness or loss of will power; her full knowledge of her property, and of those upon whom she desired to bestow her bounty ; the deliberation and care with which the act was done; the affection which prompted the act, and the absence of all proof of fraud and imposition,—to repel any and all presumption of undue influence.
Cases of this class have been before the courts so frequently that certain general rules have been established by which evidence of the character adduced
The courts have also decided what kind and amount of countervailing evidence will avail to repel the presumption of fraud or undue influence raised by such evidence. The general rule as to the capacity and ability of a person to dispose of his property is as follows: Any person of sound mind, acting with full knowledge of his affairs, competent to understand his relations to those whom he chooses to benefit, may bestow his bounty as he likes, although the disposition may appear, and in fact be, unjust and inequitable. Clapp v. Fullerton, 34 N. Y. 190; Seguine v. Seguine, 4 Abb. App. Dec. 191; Coit v. Patchen, 77 N. Y. 533; Hollis v. Drew Theological Seminary, 95 N. Y. 166. The fact that a will disinherits testator’s kindred is not alone evidence of undue influence; nor is the fact that the memorandum for the will is prepared by the person who is largely benefited under the will, and who is active in procuring its execution. Matter of Smith, Id. 516; Matter of Martin, 98 N. Y. 193; La Bau v. Vanderbilt, 3 Redf. Sur. 384; Cudney v. Cudney, 68 N. Y. 148. Neither is the fact that a will is not in accordance with testator’s previously expressed intention, although it may have an important bearing in connection with other facts; but, without such facts of a pertinent and forcible character, a change in purpose of making a testamentary disposition does not invalidate the will. Matter of Phillips, 98 N. Y. 267. “ There can be no fatally undue influence unless there is a person incapable of protecting himself, as well as a wrong-doer to be resisted; ” in other
No presumption of testamentary incapacity arises from old age alone, Horn v. Pullman, 72 N. Y. 269; nor from deafness, Gombault v. Public Administrator, 4 Bradf. Sur. 226; and even feeble and weak-minded people may make valid wills, Matter of Gray’s Will, 5 N. Y. Supp. 464; Matter of Gross, 14 St. Rep. 429. In fine, the rule to be deduced from the authorities may be stated as follows : Undue influence must be an influence exercised by coercion, imposition, or fraud, and not such as arises from gratitude, affection, or esteem, and its exertion upon the very act must be proved. It will not be inferred from interest and opportunity; and if, on the other hand, there is adduced proof of capacity, mature deliberation, settled purpose, and absence of fraud and imposition, the will must be deemed the exercise of personal right, and be respected accordingly. Let us apply these rules here.
The case for the contestants may be summarized as
I will consider these in the inverse order of their statement. As to the alleged admissions of the testatrix and the principal beneficiary under the will, it may be stated that it is a well-settled rule that admissions of the alleged testatrix, not made at or about the time of execution of will, are not admissible, and cannot be received as a statement of facts upon the question of undue influence and fraud, although such admissions may be competent on the question of mental capacity, in connection with the charge of undue influence. Marx v. McGlynn, 4 Redf. Sur. 455, 88 N. Y. 357; Waterman v. Whitney, 11 N. Y. 166; Abb. Tr. Ev. 115.
It may be further stated that the alleged admission of Mrs. Carpenter that no will had been made to her knowledge is not, I am satisfied, she not being the sole beneficiary under the will, competent evidence upon any issue. So far, therefore, as these latter alleged admissions are concerned, they may be regarded under the authorities as immaterial in the decision of this case.
It must be conceded that, if deceased was of substantially unimpaired mind and memory, with such ample opportunity for knowledge and deliberation upon the contents of the alleged will, even if she had no prior knowledge, as was afforded in this case, the charge of implied fraud and imposition would not be sustained. As a further proof of decedent’s intent to convey the bulk of her property to Mrs. Carpenter, the proponent points to the fact that, although the will gave the residue^ of the property to Mrs. Carpenter, yet, after the death of her brother, J. F. Hall, by which she became entitled to a large amount of" personal property, in addition to a farm of 140 acres, her attention was called to the question that the will,
Upon the question of the disinheritance of heirs, the same considerations above stated have equal application, to which must be added the additional consideration that the next of kin were cousins only, and lived in another state, and that there had been no intercourse between the families for years, except a visit and letters at very considerable intervals while, on the other hand, Mrs. Carpenter was regarded by testatrix as a daughter, and the most ardent expressions of confidence and love were indulged in by Mrs. Williams respecting Mrs. Carpenter, which
It has been repeatedly held that an intelligent and deliberate testamentary disposition of property to strangers in blood, when prompted solely by gratitude, love, and affection, will not be set aside in favor of any presumed or even previously expressed intent of a testator not to disinherit his heirs.
The same general considerations will apply upon the question of decedent’s age and infirmities; to which should be added the additional facts that the will was executed more than a year and a half before her death; that she was the administratrix of her brother’s estate, and consequently knew the value and extent of his property, which constitutes the bulk of her estate; and, finally, was not without independent advisers as to the disposition of her property. If, therefore, she was of sound mind and memory, of which there is abundant evidence and substantially no countervailing proof, was able, to know and retain in her mind the value and extent of her property and those who were or might be the proper objects of her bounty, and to choose intelligently between them, and, uninfluenced by fraud, did so choose, then, whatever her age or infirmities, or however completely she excluded her blood relatives from participation in her bounty, or however intimate her relations may have been with the principal beneficiary, or however great may have been the influence of the beneficiary, as the
In conclusion, the evidence discloses a complete knowledge on the part of the testatrix of the contents of the will, ample deliberation, settled purpose, and a full legal capacity; and I fail to find from the evidence that the principal beneficiary, or any one in her interest, so controlled the action of the testatrix, either by importunity which she could not resist, or by deception, fraud, or other improper means, that she thereby procured the execution of this instrument.
The burden of establishing this was upon the contestants, and, they having failed in this, the will must be admitted to probate. Let a decree be so prepared.