101 N.Y.S. 313 | N.Y. App. Div. | 1906
This action is brought under the provisions of section 2653a of the Code of Civil Procedure to have the last will and testament of the late John Henry Underhill declared null and void, the defects urged being lack of testamentary Capacity on the part .of the deceased and undue influence. Upon the trial of the issues the court took this latter question from' the jury, and the only question submitted was in reference to the testamentary capacity of the deceased, the jury finding in favor of the plaintiff. Appeal comes to this court.
■The will bears date of December 13, 1904, the testator dying on the twenty-eighth day of the same month, and while there are some
The will now before us has been admitted to probate, and under the provisions of section 2653a of the Code of Civil Procedure the record of the probate is'primatfacie evidence of the “due attestation, execution and validity of such will or codicil.” That is, the plaintiff comes, into court, in this action, alleging the invalidity of the will which the law holds prima faoie to be valitj, and she; is thus to sustain the burden of proof. She must establish the fact against the presumption. She is bound to show, on the question of the testator’s testamentary capacity, that he was not able to comprehend the condition of -his property, his relations to those having natural claims upon hié bounty, and the scope and bearing of the provisions -of liis will. It is not enough to show that he might not have had this
It is conceded that the estate left by the testator was of the value of $10,000, and there being no evidence of' undue influence, no evidence of fraud in the making and executing of the will, no evidence of any prompting on the part of any one in the scheme of the will, it is important to consider what the testator’s expressed intentions are, that we may judge of his capacity from his acts in reference to the particular business in hand on the 13th day of December, 1904, when this will was made and executed. In the 1st clause he directs that his estate be converted into cash. In the 2d he directs the payment of his debts and funeral expenses. In the 3d he makes a bequest of $300 to a church. In the 4th he makes a bequest of $200 to the pastor of a certain church in Yonkers. In the 5th there is a bequest of $600 to one Thomas Hughes. In the 6th, a bequest of $1,000 to the widow of Isaac Roberts of Tuckahoe, where. the testator resided. In the 7th he makes a bequest of $500 to Joseph Carson Underhill, a relative. In the 8th there is a bequest of $500 to the widow of William Roberts. In the 9th he gives to his broker, Thomas W. Thorne, $2,000, and in the 10th he gives to his sister, the plaintiff in this action, Caroline A. McG-own, the sum of $5. These bequests aggregate $5,105, or about one-half of his estate. He was unmarried, and lived with his brother, William James Underhill, and his sister, Mary Ida Underhill, . and to these two latter he gave the remainder of his estate, aggregating about $5,000. There is not the least evidence that the testator was prompted in the slightest degree by any one in reference to the disposition of his property, or as to its amount. Hone of the gifts are fantastic or unreasonable, so far as appears from the evidence. All of them were within his means, and the residuary estate, going to the brother and sister, with whom he resided, was of one-half of his property. Hone of his heirs at law were ignored, and aside from the small gift to the plaintiff in this action there is nothing to indicate even a prejudice as against any of those who might have expected to share in his bounty. “ A man’s testamentary disposition of his property,” say the court in Dobie v. Arm
Here we have a will showing upon its face an intelligent grasp on the part of the testator of his affairs. He has disposed of about one-half of liis property in specific legacies, and the remainder he gives to the brother and sister who have-afforded him a home. No one suggests that this is not the will which he drew or dictated ; there is no evidence whatever that any one made any suggestion as to the'beneficiaries, or. in reference to the- amount, of the property or as to the scheme of the will, which is entirely rational, and yet the jury in this case has determined that the man who made this will; com plying with all of the requirements of an intelligent disposition of property by will, was not of sound disposing mind. ; Where is the evidence to support this conclusion? Certainly it is not found in the will itself, nor in any of the stirrounding circumstances under which it was drawn and executed.
It is true, of course, that the evidence tended to show that the testator was disgustingly dirty and vulgar; that he" was eccentric and miserly in his conduct, and that he was somewhat given to drink, and two physicians testified in á very general way that they regarded the man as demented, as an imbecile, but none of the evidence, as we-read it, goes to the length of saying that the testator did not comprehend the extent and value of his property, or that he-did not, on. the day of making that will, have the capacity to make an intelligent "disposition of his money. An imbecile is neither a lunatic nor an idiot. He is defined “ as one destitute of strength, either of body oi* mind; one who is weak, feeble, impotent, decrepit. Imbecility is defined as the quality of being imbecile; feebleness of body " or mind.” (15 Am. & Eng. Ency. of Law [2d ed.], 1019.) It is not a word of exact meaning, and imbecility is not a disqualification .for making a will, provided the testator has the
It seems entirely clear to us that the court erred in charging the jury that the burden of proof of the testator’s testamentary capacity was upon the defendants; the statute clearly places that burden upon the plaintiff in a case of this character by making the production of the will and the record of its probate presumptive'evidence of the validity of the will.
We are of the opinion, however, that there was no evidence in this case to meet the issue raised by the pleadings; that there w&s no evidence to establish lack of testamentary capacity on the part of the testator, the will itself, unquestioned as to any of the details of its making and execution, showing conclusively that the testator had the capacity demanded by the law; that he was capable of comprehending the amount of his property and of intelligently disposing of the entire estate.
The judgment and order appealed from should be reversed, with costs.
Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.