133 N.Y.S. 1062 | N.Y. App. Div. | 1912
Daniel Sheehan died in St. Vincent’s Hospital on the 20th of March, 1907, at the age of seventy-seven years. Five days before his death he made what is claimed to be his last will and testament. He was a bachelor and had accumulated an estate of about $60,000. His next of km were five nephews and nieces. To two nieces he gave the sum of $10,000 each, one niece he gave $500, and to one nephew he gave $250. The
We are unable to discover anything in the course of the trial to suggest that the alleged undue influence of said O’Beirne was an issue in the case, until it came to the charge of the court. He was called as a witness by the plaintiff to testify to the instructions given him by the testator and the circumstances surrounding the execution of the will. But there was nothing in that circumstance to suggest that the plaintiff was asserting that he had exercised undue influence upon the testator. It is said that it was sufficient to serve the answer of Francis X. Sheehan upon the plaintiff with whom he made common cause. It does not even appear in this record that that answer was served on the plaintiff. It was produced at the trial by the attorney of record of Francis X. Sheehan, who was the plaintiff’s trial counsel. Assuming that the exercise of undue influence by O’Beirne was an issue in the case, we think that the order setting aside the verdict was improper for the reason that there was absolutely no evidence whatever to support that charge. O’Beirne was a stranger to the testator. He had no personal interest whatever to serve. The testator, who was evidently a Roman Catholic, requested the defendant Sharkey to procure a lawyer who was also a Roman Catholic. Sharkey had known the testator for some years, and had made an arrangement with him to bury him and erect a headstone at his grave. Upon Sharkey’s request O’Beirne called upon the testator at the hospital, received the instructions for his will, and two days later called again, when it was executed. He was called as a witness for the plaintiff, and frankly disclosed all that occurred on both occasions. Apart from his testimony there is nothing in the case upon which to base a charge of undue influence exercised by him, and, according to that testimony, the testator gave intelligent reasons, the truth of which no one disputes, for treating his nephews and nieces as he did. He desired to divide the bulk of his property among Catholic charities, and he requested O’Beime to obtain information and to give him advice on that head. But compliance with that request did not constitute the exercise of undue influence. Having received that information
While the will was made hut a few days before the death of the testator, the evidence plainly shows that he was in possession of his mental faculties, and even if there was evidence to go to the jury on the question of testamentary capacity or of undue influence exerted by others than O’Beirne, a finding of the jury in favor of the contestants on either of these issues would be so clearly against the- weight of evidence that we should not hesitate to set it aside. A verdict, therefore, in favor of the will should not be disturbed except for some substantial reason.
The jury were directed to find either (1) “that the writing produced is the last will of Daniel Sheehan,” or (2) “that the writing produced is not the last will of Daniel Sheehan.” Their verdict was announced thus: “We, the jury, find that the writing produced is the last will of Daniel Sheehan; ” and, while that verdict conformed to the issue to be tried, it is claimed that it is illegal for being neither a general nor a special verdict. It is sufficient to say on that head that if the plaintiff desired special findings on specific questions of fact an appropriate request should have been made.
What we have already said disposes of the alleged errors in the admission of evidence bearing upon the issue as to testamentary capacity. The plaintiff was given the widest latitude throughout the trial; she has had one chance before the surrogate, another in the Supreme Court before a jury, and we think it is time the contest ended.
The order appealed from should be reversed and the verdict of the jury reinstated.
Clarke, McLaughlin, Scott and Dowling, JJ., concurred.
Order reversed and verdict of jury reinstated. Order to be settled on notice.