1 Gibb. Surr. 127 | N.Y. Sur. Ct. | 1894
The subscribing witnesses, Frederick H. Steinbrenner and Charles A. Appleton, testify to the facts essential to a due execution of a will. The paper is in the handwriting of the decedent, and was brought by him to the office of D. Appleton & Company, with which house the witnesses were connected, was presented to them with a statement that it was his will and the request that they sign it. He did not in their presence sign the paper, nor did he in expressed terms acknowledge
Objections were filed in behalf of decedent’s brother, Johann Nepomuck Lang, alleging that the execution was not a voluntary act of the decedent, and that he was not of sound mind and memory. No evidence of undue influence was produced. The only issue to be determined by me is the question of mental capacity, except that which arises on the validity of the instrument which is called in question on other grounds, and which I will hereafter consider.
Louis Lang was by birth a German, and was unmarried. He was an artist, and had resided for nearly fifty years in New York. By thrift he had accumulated a competence more than sufficient to supply his wants. His surplus'moneys he deposited with Messrs. Appleton & Co., with some of the members of which house he was on terms of intimacy. Against the account he drew checks. Under the advice of Mr. William Appleton he made investments, and the securities were left with the firm for safe keeping. He was a member of the Artists’ Eund Society and of the Century Club. In later years, by reason of increasing infirmities, he visited the club with less frequency. He became untidy in personal appearance, and his memory was somewhat impaired, a condition not uncommon in aged people, and at the age of eighty-one he died.
A competent testator, free from undue influence, may malee whatever disposition, of his property by will that he chooses, though unjust and unreasonable. He may divert his. estate from those who would be regarded- as having a natural claim upon his testamentary consideration, and give it to strangers. If capacity and formal execution and volition appear, the will must stand. Seguine v. Seguine, 4 Abb. Dec. 191. As concisely stated by Rollins, Surrogate, the question of capacity is whether a decedent is capable of sufficient thought, reflection and judgment to know of the property he has and to decide and declare what shall
In 1889 or 18-90' — the date I will consider hereafter — Louis Lang himself wrote the paper now under consideration as his will. He also wrote another in the German language, purporting to be a will, and which in the paper itself he claimed expressed the meaning of the one in English.
He was conscious that he was near the end of life. He stated to Mr'. Roelker, whom he named as one of the executors, that his bonds and valuables were in a tin box in the possession of Mr. Appleton. In the box were also found the will and the German ■copy. He explained to Roelker some of the provisions of the instrument, and gave him instructions, stating that his death might occur at any time. He told him where, in his apartment, other important papers were, that he might readily find them. He further stated to Mr. Roelker that Mr. Ounningham would attend to the details of his funeral. On a sheet of note paper with the caption “ Last memoranda of Louis Lang to Patrick Ounningham,” whom he addresses as his friend, he gives instructions in respect to the disposition of his remains-, to provide an inexpensive headstone for his grave and he designates Mr. Wil
Against this evidence are facts which appear upon the face of the will and other papers produced showing a tendency to decay of memory and of mental power. In the will, as in the two letters written to Cunningham, he refers to Mr. Eitch as one of his “executors,” to whom he had Intrusted the collection and disposal of his pictures for the benevolent fund of the Artists’ Fund Society, though further on in the same instrument he states that “ William W. Appleton and George H. Roelker had volunteered to be his executors.” But “ George H.” is stricken out with the pen, and above in red ink is written the word “Alfred,” but leaving on the next line “George H.” as part of Mr. Roelker’s name, with a statement that he is 'to conduct the correspondence in German. On the fifth page
These anomalies, on careful examination, are accounted for. Some must have been the result of a failing memory, incident to old age. The fact of two different years — 1889 and 1890>— being assigned to May 8th, as the date of the will, is explained
Certain erasures and alterations which appear on the face of the paper are claimed by the contestant to have worked its revocation. The striking out of the “ George H.” as the Christian name of Mr. Roelker and the writing in of “Alfred ” I have referred to. That change does not obscure the intention of the testator. It makes it certain. But he has changed the amount óf a bequest to his nephew, Heinrich Lang, for 5,000' marks to 2,000 marks in the eleventh clause of the fifth page.
The only question remaining is whether the will is invalid upon other grounds set forth in the objections.
Little or no stress is laid by the counsel for the contestants on the question as* to the identity of the legatee provided for in the second and third clauses of the will. The legacy is claimed by the Artists’ Fund Society of the city of New Tork. The rule of law in this respect is concisely stated in St. Luke’s Home v. Association for Indigent Females, 52 N. Y. 191: “A bequest would not be hold void for uncertainty as to the legatee^ except when it is found impossible, either from the words used alone or in connection with such extrinsic evidence as
The sole question remaining for the court to determine is as to the capacity of the council of Charitable Foundations in the city of Walldsee, kingdom of Wurtemburg, Germany, to take the residuary legacy. The law of the legatee’s domicile controls: as to the validity of the bequest, and the courts of this State will' recognize a bequest which, if made to a legatee here, would be illegal, as valid when given to a legatee entitled to take under the laws of his domicile. Estate of Beck, Surr. Decs., 1892, page 16; Chamberlain v. Chamberlain, 43 N. Y. 432; Matter of Huss, 126 N. Y. 537; Hope v. Brewer, 136 N. Y. 126-139.
The evidence adduced on the trial as to the laws of the domicile of the intended legatee and of its ability thereunder to take by bequest, satisfies me that the legacy in question is valid.
Submit decree.