1 Pow. Surr. 579 | N.Y. Sur. Ct. | 1894
Objections were filed by the father of decedent to the admission to probate of the paper propounded as his will. The first question that arises affects the validity of its execution. The subscribing witnesses, Hollings and Kelly, prove compliance wdth all the formalities required by the statute except that Hollings does not recollect a declaration by the testator that the paper was his will, or a request for him to sign it as a, witness. He admits, however, that he was requested to sign by the proponent, Mr. 'Drake, who superintended the execution of ■.the paper. It is evident that Hollings did not regard the event as of sufficient importance to charge his memory with all the details connected with the execution. He did not recall the fact that on the same occasion he had signed another will—that of the testator’s sister—and his memory was at fault in respect to the time of the execution. His recollection was that it took place between nine and ten o’clock in the morning, whereas, it was not until late in the afternoon. Kelly’s testimony is sought to be discredited, because inconsistent with statements in a certain affidavit that he made long after he had signed the will as a subscribing witness, and also because of contradictions in the testimony he gave upon collateral matters.
The execution of the will having been established, the issues as to testatomentary capacity and undue influence will be considered.
Joseph F. Johnson was still a young man at his death. He had been addicted to the excessive use of intoxicating liquors for many years; had come to be a drunkard, and had suffered from delirium tremens, and some months after the execution of the will he was an inmate of the Inebriate Home. His mental powers were probably never robust, and had been weakened by his excesses.
Drunkenness may so becloud the mind as to make it incapable
It is not necessary to refer to the many cases in this State in
I will only cite the leading case of Peck v. Carey, 27 N. Y. 9, and the recent decision in the Matter of William A. Reed, 2 Connolly, 403.
The fact that Johnson had an epileptic fit does not raise a presumption of disability after he had recovered from the attack. ■Contestants claim that it occurred on the morning of the day the will was signed. If so, I am satisfied from the evidence that it did not affect his capacity in the afternoon. The opinion expressed by Dr. Lines, who was called as an expert, but who never had seen Johnson, and that of Hollings, the subscribing witness1, that the testator was incompetent to make a will, are ■outweighed by others, who proved acts and words that showed his capacity.
Nor is the allegation of undue influence sustained by the proof. On the morning of the day on which he signed the paper Johnson sent for Mr. Drake, not once, but twice, and, after his arrival in response to the second call, he stated to Mr. Drake his wishes in respect to the disposition of the property, and asked that a deed should be prepared by which his estate should go to his sister. After discussion he acquieced in the suggestion that a will be also prepared. Late in the afternoon Mr. Drake returned with the papers. Both were read to Johnson, who stated them to be in accordance with his wishes. On the same occasion a reciprocal will and a reciprocal deed were executed by his sister to him.
Certain previous declarations are shown to have been made by Johnson that his estate was. to go to his father. If he had executed a will containing that provision, it was his right, even capriciously, to revoke it. But his. declarations never took the form of a will or other legal paper. They'probably expressed his feelings at. the time they were made, but- had no further significance. There is abundant proof of other declarations by him showing indifference, if not hostile feelings, for his father.
On the question of undue influence exercised on a drunkard in the procurement, of a will, the rule laid down in Gardner v. Gardner, 22 Wend. 526, is still the law. It was held there that “the act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him by the inmates of his family, where the influence arises from kind offices springing from attachment or affection, and that, to vitiate the act the influence must be shown to have arisen from threats, force or coercion destroying free agency, and the boon to have been obtained by such coercion or by importunity that could not be resisted producing compliance for the sake of peace.” In Williams’ Will, 19 N. Y Supp. 778, 46 St. Rep. 791, the General Term in the third department held that the fact that the will disinherited kindred was not alone evidence of undue influence, nor the fact that the memorandum for the will was prepared by the person who was to be largely benefited thereunder, and who was active in procuring its execution. Hor was the fact, that the will was not in accordance with the testator’s previously expressed intentions, 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 in making a testamentary disposition would not invalidate the will.
Much of the testimony adduced on both sides on the trial refers to matters more or less remote from the day of the execution of the will, and was of such a character as to justify the suspicion that the question of Johnson’s mental soundness on that day was not free from doubt, but it did disprove the statements of other
It may be admitted to probata