80 A.D. 599 | N.Y. App. Div. | 1903
Lead Opinion
On the 30th of May, 1896, William Ivison, upwards of eighty years of age, died leaving a last will and testament, which, after a contest, was admitted to probate by the surrogate of the county of N ew York and letters testamentary were issued to the executor therein named. The testator left him surviving no widow or children, his heirs at law consisting of numerous nephews and nieces. He gave the greater part of his estate to his nephew, David B. Ivison. The. plaintiff, another nephew, feeling aggrieved, brought this action under section 2653a of the Code of Civil Procedure to test the validity of the will, charging, in substance, that the same was invalid in that it was procured by undue influence and that the testator at the time it was executed did not have testamentary capacity. At the trial, after both parties had rested, a verdict was directed sustaining the will, and from the judgment thereafter entered plaintiff has appealed.
By the terms of the section of the Code under which the action was brought, the decree of the surrogate admitting the will to probate is prima facie evidence of its due attestation, execution and validity (Cook v. White, 43 App. Div. 388; Heath v. Koch, 74 id. 338 ; S. C. affd., 173 N. Y. 629), and the burden of overcoming the same is upon the one asserting the invalidity. (Dobie v. Armstrong, 160 N. Y. 584.)
It seems unnecessary to review at length the facts set out in the voluminous record. Concerning the issue of undue influence, no
The appellant, of course, is entitled upon the appeal to the most favorable inferences deducible from the evidence and all contested facts are to be treated as established in his favor ( Waldron v. Fargo, 170 N. Y. 130), and if it be assumed, as it must be under this rule, that the testator did what the testimony of the plaintiff tended to show he did — that he was eccentric, and upon certain subjects irrational — that fell far short of his sustaining the burden which rested upon him, viz., of showing that at the time the will was made the testator did not have testamentary capacity. To establish that fact it was necessary to produce proof which would have justified the jury in finding that the testator, at the time he made his will, did not know what property he had or how he desired to dispose of it. (Delafield v. Parish, 25 N. Y. 10; Matter of Martin, 98 id. 193; Dobie v. Armstrong, 160 id. 584.)
In Delafield v. Parish (supra) it is stated that a person to have testamentary capacity must “ have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able tq> form some rational judgment in relation to them. A téstator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”
The burden of proving lack of testamentary capacity, as already indicated, rested upon the plaintiff. The law not only presumed that the testator had such capacity, but the decree admitting his will to probate, prima facie, established that fact, This presumption, coupled with the prima facie case of the party in favor of sustaining the will, had to be overcome before there was any question to submit to the jury. It was not overcome, and, therefore, the verdict was properly directed. This, as I understand it, is precisely what was held in Dobie v. Armstrong (supra). There, as here, a verdict was directed at the close of the testimony and the ruling of the trial court was sustained on appeal, the court saying: “ The trial court was not required to submit the question of the testator’s mental capacity to the jury merely because some evidence had been introduced by the party bearing the burden of proof. * * * The Legislature never could have intended and the statute does not compel the construction, that courts should hold that every case which is brought under section 2653a of the Code must be submitted to the arbitrament of a jury. * * * Their verdict should proceed upon such evidence as would warrant the court, in its review of the facts, in holding that it actually tended to prove
Upon the whole case, therefore, I am of the opinion that a question of fact was not presented at the trial, for which reason the court properly directed a verdict, and that the judgment is right and should be affirmed.
Judgment and order affirmed, with costs.
Van Brunt, P. J., and Ingraham, J., concurred; Hatch, J., dissented.
Concurrence Opinion
I concur in result. The rule in Dobie v. Armstrong (160 N Y. 584) has been modified by McDonald v. Metropolitan Street R. Co. (167 id. 66), as pointed out by this court in the recent case of Philips v. Philips (77 App. Div. 113), wherein we held : “ Upon the law as now authoritatively laid down by the Court of Appeals, therefore, a verdict cannot be directed for a plaintiff or defendant, no matter how great the weight or preponderance of evidence may be in his favor, where, on the other side, evidence has been given which presents an issue of fact, and upon which the jury could properly proceed to find a verdict.”
We then discussed the evidence presented by the plaintiff and reached the conclusion that it was not of such a character, regarded separately and apart from that of the defendant, as would justify its submission to the jury. Similarly, in this case, I think that the plaintiff failed to present evidence “ upon which the' jury could properly proceed to find a verdict,” and that the court was, therefore, warranted in directing a verdict in favor of the defendant.
Dissenting Opinion
If we are to follow the rule announced in McDonald v. Metropolitan Street R. Co. (167 N. Y. 66) which we have held applicable to this class of cases (Philips v. Philips, 77 App. Div. 113), then I think that the appellant in this case presented a question of fact which required its submission to the jury for their determination. The question does not now rest upon the weight of the testimony, but bears solely upon whether there was any question of fact for the jury. It seems to me that the evidence was sufficient upon the question of the testator’s testamentary capacity to call for its submission to the jury within the rule of these cases.
The judgment should, therefore, be reversed and a new trial granted.
Judgment and order affirmed, with costs.