33 N.Y.S. 968 | N.Y. Sup. Ct. | 1895
This is an appeal from a decree of the surrogate of Kings county denying the petition of the appellant to revoke the probate of certain clauses of the will of the testator in favor of the respondent, on the ground that they were procured by fraud and deceit practiced by the respondent in personating herself as a single woman, while asi a matter of fact she was married. We have no doubt that this proceeding will lie, and that the petitioner, as legatee under the residuary clause, has sufficient interest to maintain the proceeding. At the close of the petitioner’s case, without calling on the respondent for proof, the surrogate denied the application. On this appeal the matter comes before us substantially for a rehearing on the facts, and we must decide whether the case made by the petitioner established a fraud or imposition on the testator; and, secondly, whether the deceit was such' as to avoid the testamentary provisions in respondent’s behalf. The testator was over 65 years old. He had no immediate family, his wife and children having died many years before. He was excessively corpulent, and required many attentions to his personal wants. He kept house, and had had a housekeeper, whom he had discharged in April, 1889, upon her announcement of her intention to marry. The proof on the part of the petitioner showed the discharge of the previous housekeeper for the reason stated, and also declarations of the deceased that he would
“Third. I give, devise, and bequeath to Miss Jessie Belknap Ranken, provided she remains with me up to the time of my decease, the house and lot known as ‘No. 78 Rush Street,’ in the Nineteenth ward of the city of Brooklyn, together with the sum of five thousand dollars, and all the pictures, piano, and household furniture remaining in said house at the time of my decease, to have and to hold the same to her, her heirs, executors, administrators, and assigns, forever. The foregoing devise and bequest are made by me to the said Jessie Belknap Ranken out of respect for her, and for her services and kindness to me, and with the expectation that she will remain with me as long as I live. If, however, the said Jessie Belknap Ranken shall not remain with me up to the time of iyy decease, then the said devise and bequest to her shall be void and of no effect.”
—And also one-third of Ms residuary estate, subject to the like condition that she should live with him till his decease. If the deceased was deceived as to the fact of the respondent being married, we think that that fact itself, considering the circumstances and the relation of the parties, would not avoid the provisions of the will in her favor! The testator was not opposed to marriage in itself, nor did he contemplate any relation with the respondent to> which her marriage would be a bar. He was not her suitor. His objection to having a married woman in his employ was based simply on his belief that a married woman could not give Mm the attention and service that he required. What dictated his bounty towards the respondent he Mmself has stated, not love, not affection, but “out of respect for her, for her services and kindness to me, and with the expectation that she will remain with me as long as I live.” He was careful to provide against her abandonment of him, or Ms dissatisfaction with and discharge of her, by the proviso that the legacy and devise should be void in case she did not remain with him until his death. Therefore, if deceived as to her marriage, that deception, at most, led to her employment. His bounty was due, not to the fact that she was single, but that she served him well, and that she did serve him well appears not only in the evidence in the case, but by the fact that he retained her till his death. The case, therefore, has no analogy to a gift to a supposed wife or to a fiancée, where a previous marriage would be a bar to the relationship, which relationship was the moving cause of the legacy. It is further to be borne in mind that the will in this respect is but a reproduction of similar provisions made in favor of a previous housekeeper.
But we do not believe that the deceased was deceived as to the fact of the respondent’s being a married woman. The evidence to establish this deception and imposture rests principally on the testi