1 Redf. 238 | N.Y. Sur. Ct. | 1849
The Surrogate. — Undue influence may be proved by direct evidence of importunity, or the practice of arts upon the decedent, by the supposed agent; or may be presumed from the proof of facts which throws upon the party seeking to establish the will in question, the burden of proving it to have been the result of free agency and complete understanding of the contents ; and this case is put by the contestants on both grounds. But of the former species of evidence, there is little trace in this case, except mere conjecture as to the objects of visits by the party implicated, to the decedent, not sufficient to merit much consideration ; and I shall, therefore, proceed immediately to consider the presumptive evidence which requires countervailing proof to overthrow it.
The testimony of Mrs. Sawyer, Mrs. Knapp, and Dr. Underhill, shows her to have been set in her ways, not easily persuaded, opposed to making a will, and resisting medical directions. The admissions of Mr. Gox show her to have been a woman of considerable mind and a good deal of independence, impatient of advice, leading to mismanagement of her affairs by accumulating idle hoards in banks, amounting at her death to $2700, while she had $1600 loose cash in her house.
This kind of self-reliance is rather opinionativeness than independence, and is not inconsistent with a liability to be governed, if properly approached. Still, it requires some evidence to show that the energy which gave character to this obstinacy had failed, and that nothing remained' but the unreasoning caprice; or, that arts had been practised which turned her strength to her destruction. For this purpose, the
The disease affecting the decedent at the time of her death was lingering and exhausting, so much so as to prevent rest, except in a sitting posture in a chair. Though not likely directly to affect the mind, it still must have greatly impaired its energies at so advanced an age, so shortly before her decease.
This effect was visibly and rapidly approaching towards the close of her life, according to the testimony of Mrs. Sawyer, young Mr. Shepherd, and Drs. Underhill and Hyslop, particularly as regarded her physical strength; her faculty of memory was evidently much damaged, particularly as regarded claims on her bounty and affection; her forgetfulness of Miss Shepherd, Miss-Test, and Mr. Heins, shows this.
At the very time of executing the will, her infirmity and failing strength must have been apparent, for though she expressed no inability, and was not asked if she could write, Mr. Barker, the draughtsman and subscribing witness to the will, suggested that she should make her mark instead of writing her name, which could only have originated from some appearance of great weakness.
The character of her signature confirms this; and the only circumstance relied on by Mrs. G-attey, as proof of her strength, her never lying in bed, is shown to be a necessity arising from her disease. There existed in her case perhaps neither delirium nor absolute torpor: she was able to answer ordinary questions or salute an acquaintance; but this does not establish competency for every act. But, as observed by Sir John Hiohol, “ it is a great but not uncommon error that if a person can understand a question put to him, and can give a rational answer, he is of perfectly sound mind, and is capable of making a will for any purpose whatever; whereas the true rule of law — and it is a rule of common sense — is, the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the ease.” (Marsh v. Tyrell, 2 Hagg. Ec.
This being established, it next becomes necessary to examine her intellection and the origin of the instrument. In regard to the first point, had the case turned upon the question of such proof of the understanding of this instrument as the law requires in case of impaired capacity, I should have hesitated in coming to a conclusion, because something said by her appeared to show a knowledge of part of the contents •of the instrument, inasmuch as she suggested giving a legacy to a person omitted; but this, after all, is rather a perception of what was omitted, an instinctive consciousness, than a per-
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I think it cannot be denied that Mr. Cox is placed in the attitude of a party benefited, or who may derive a benefit from the will, so as to require investigation as to its spontaneous character and the means taken by the counsel employed to ascertain it. The degree of that interest is immaterial, except perhaps as to the weight of evidence required to prove volition.
In the case of Tomkins v. Tomkins (1 Bail. S. C., 96), a mere interest as guardian of certain children was considered sufficient to evoke the application of the principle which I shall apply in this case — that the court is bound to be vigilant in ascertaining that the decedent was acting on her own impulses, where capacity is impaired, and the party directing the preparation and execution of the will is benefited. This is not a modern doctrine, or one unsupported by experience. Swinburne says quaintly (1 Swin., 189), “ Worthily and with great equity and reason is that to be deemed for no testament when the sick person answereth ‘ yea,’ the interrogation being made by a suspected person.” And he puts it . both on the ground of suspected deceit as to the legatee, and want of testamentary intention in the decedent. Under the civil law, a preparation by an interested party rendered a legacy to him void. (Dig. Lit., 34, tit. 8.) Under the modification of that law adopted by English ecclesiastical courts, such preparation only throws the burden of proof of voluntary origination with the testator on the person propounding the instrument for probate. It is true that at common law, where a deed
The additional ground to which I have alluded, why the
Mr. Cox, whose residence was nearly opposite hers, visited her for several years before her death frequently, and latterly almost daily, and it is but fair to presume that his visits, considering her state and his profession, were pastoral. The confidence arising from this must have been very great, so much so that even daily visits were not considered sufficient, and she complained that he did not come more frequently. The comfort therefore of his presence, and the reliance upon his advice, must have been very great; for such is the weakness of human nature, that we come to believe that from the lips whence flows religions instruction, nothing can come less pure. While on the other hand, a religious guide, urged on by the zeal of his profession, and dazzled by the glory of the object, may sometimes be blinded to the means used to obtain it.
Statutes of mortmain are left as evidence of the danger arising from the abuse of a confidential relation, and the precautionary means adopted against it, in the case of ecclesiastics. Different municipal laws in all countries have prescribed the cases in which parties standing in a confidential relation to another can take no benefit from them by a gift, particularly executory or prospective gifts; which rule there has been a constant tendency to extend. Thus the law of France, which in terms only mentions “ tutors,” was by construction extended to schoolmasters, directors of the conscience, and attendant physicians (Pothier, Don. entre Vifs, § 1); and that too where the party was alive. The law of England establishes the general principle only as one of presumptive evidence, and leaves the party claiming to be prepared with evidence, in such case, to rebut it. In Griffin v. Robbins (3 Madd. R., 19), the dependence arose from the in
The burden being thus thrown on this executor of proving affirmatively good faith and a proper use of the confidence placed in him, it becomes necessary to examine the facts tending to show it.
[The-learned surrogate having arrived at the conclusions— 1st, that the faculties of the decedent were so deteriorated as to let in proof of the mode of preparing the will and presenting it to the mind of the testatrix; and 2d, that its preparation under the direction of a party benefited by it, standing in a confidential relation, raises the presumption of undue influence— proceeds to discuss the testimony and the means employed to discover spontaneity. As his cohcltision — that the means which were employed in this case were not calculated to rebut the presumption, and therefore the portions of the will from which the interested party derived his benefit must be rejected — was not concurred in by the general term of the Supreme Court, to which an appeal was taken, though otherwise affirmed, the rehearsal and discussion of the testimony on this point are omitted. The decree of the Supreme Court may be found in the N. Y. Surrogate’s office, in Liber of Wills, 107, at pages 1-30.]
It only remains to inquire if the whole will must stand or fall. If the question were res integra, both on the score of ■ justice and policy, the power of sustaining part and rejecting part should be upheld; — of justice, because it would be hard that those who were voluntary and natural objects of bounty should suffer by the acts of another; of policy, because the fraudulent contriver might throw into the instrument proba