26 N.Y. St. Rep. 240 | N.Y. Sur. Ct. | 1889
The clear impression made by the argument in this proceeding on my mind—that the will of this decedent, probate of which is sought to be revoked, was lawfully executed by a competent testator, without fraud, restraint, or undue influence—has become, after a careful reading of several hundred pages of testimony, and attentive study of the able briefs of counsel, a settled conviction that such impression was sound. On the trial the learned counsel for the contestants abandoned every allegation of the petition, except that of undue influence. This action on his part was fully warranted by the testimony, as no lack of testamentary capacity had been shown; but, on the contrary, it had been proved by contestants’ own witnesses that the testator was, at the time he executed the will, a man of unusual mental strength, and of undoubted testamentary capacity. The earnest argument of learned counsel for contestants, both oral and written, has not persuaded me of the existence of any fact or circumstance, sworn to by any witness entitled to credit, which will tend to establish undue influence on the part of any person over the mind of the testator. If the evidence of Michael Conklin is to be believed, —and I have considered it all; overruling, for that purpose, all the rulings of the learned assistant,—the testator does not seem to have been affected at all by his advice. It does not appear to me, from Conklin’s own story, that he had any influence whatever upon the testator’s testamentary intentions. To my mind, the will was a most natural one and a very just one. The testator’s love for his wife and her children by a former marriage was strong and abiding, and, beyond question, was worthily bestowed. It may be true —I should be surprised if it were not—that his wife and her children wielded an influence over him far greater than that of any other person on earth. The contrary of this would be most unnatural and regretful. The influence of the wife should be paramount to that of all the rest of the world; and human experience proves that it is so. There is no direct evidence in this case that testator’s wife or children attempted in any way to warp his judgment or sway his will, although they had an undoubted right to do both, by appealing to his love for them, and tender solicitude for their welfare after his death, to the extent of making ample provision for them out of his estate, even to bestowing it all upon them.
The court of appeals has again and again defined undue influence which will avoid a will. The rule of decision there laid down not only controls this court, but it is entirely in accord with the simplest principles of sense and reason. The court says in one case, which is but one of many holding the same doctrine, that, in order to avoid a will upon the ground of undue influence, it must be shown that the influence exercised amounted to moral coercion which restrained independent action, and destroyed free agency, or that, by importunity which he was unable to resist, the testator was constrained to do that which was against his free will and desire. Society v. Loveridge, 70 N. Y. 394. It is true that undue influence cannot be proved in the great ma