2 Bradf. 261 | N.Y. Sur. Ct. | 1853
The first question that arises in this case is, whether the will was executed in the mode prescribed by statute. All the witnesses testify to the subscription of the testatrix in their presence, and their attestation in her" presence. One of them, Mr. Searle, on his direct examination said, that Mrs. Moore acknowledged it as her will, and requested the witnesses to attest it. On his cross-examination he stated that when he went into the room Alfred Moore and Mr. Sandford said they wished him to sign his name—the precise words used he did not recollect —no one else spoke to his knowledge—nothing more was said while he was in the room. He immediately qualified this statement, however, by adding “ I did not hear any thing more. I don’t recollect Mrs. Moore saying much. I think she said it was her wish he should have that sum of money. If my memory serves me right, those were the words she used. I think I can be positive she said so. I have an indistinct recollection of what was said at that time. That is all I recollect hearing Mrs. Moore say while I was in the room. I am not able to say whether she said anything else or not. She addressed no remark to me, nor asked me any question nor gave me any direction. I am positive of that.” * “ I don’t recollect any thing else that was said or done while I was in the room. I can’t recollect whether the will was read while I was there. When I came in, the will was on the table.” He then testifies to the signature of the wifi, and proceeds: “We were all round the table—we could hear all that was said. * *
Mr. Searle’s wife, one of the other attesting witnesses, states that she was present at the execution. She says, “ I saw Mrs. Moore go to the table, and make her mark. I think so. I cannot be very sure—I did not take any notice. She said it was correct. I think I heard some part of the will read before I signed it. I cannot say what part—I do not understand these things. I did not take any notice. * * * I think Mr. Sandford asked her, when she signed it, if it was satisfactory; and she said, Quite so, or to that purport.” On cross-examination the witness said, “The decedent said nothing to me while I was in the room. She made no other remark except what I stated on my direct
The will bears date November 7th, 1848, and these witnesses were examined three years afterwards. The instrument is very brief. The testatum clause is full and formal. Mrs. Searle thinks she heard some part of the will read before execution, while Mr. Searle states more positively his recollection that the whole was read, including the testatum clause. The reading of the instrument in the presence of the testator and the subscribing witnesses, and its subscription by all the parties in the presence of each other, is ordinarily sufficient evidence of a testamentary declaration, and of a request to the witnesses to attest the instrument. The minds of the parties meet on those two essential points, through the medium of the reading, and acquiescence or ■consent to the attestation. No particular form is requisite; all that the law requires is that the testator shall communicate to the witnesses that it is his will, and he desires them to attest it. This can be done by reading, and other acts performed by a third person, provided an intelligent assent on the part of the testator be shown. Indeed, not a word need of necessity be said. A deaf mute might go through all the ceremony, by means of a written communication. Besides, there is generally large room for inference, that the will has been' duly executed, from the recitals of the testatum clause, where the transaction has not been recent. In the present case, taking in view the lapse of time, the inexperience of two of the witnesses in matters of this kind, the “ treacherous memory ” of one, if not of both of them, and the fact that the testatum clause of the will was read aloud
But in addition to the evidence I have examined, we have the testimony of the counsel who prepared the will, attended its execution, and became a subscribing witness. He states that he read the instrument to the decedent, and then requested Alfred Moore to send for two persons to witness it. He left the room, and returned saying Mr. and Mrs. Searle would attend; and they shortly after came in. He requested the decedent to sign the will, and she asked him to write her name. This was done, and she then made her mark in the presence of the witnesses. He says, “ I then asked her if she published and declared .this as her last will and testament, and wished ns to subscribe it as witnesses. She said, Yes, and made some remark, I don’t recollect precisely what. I then read the attestation clause, and the witnesses signed it in her presence.” This evidence is explicit and positive, and removes any question as to the testamentary declaration and the request to the witnesses to attest the instrument. Thus, besides the reading of the testatum clause and the act of signing by all the parties in the presence of each other, here is precise testimony to a formal inquiry of the testatrix by the attending counsel, and the answer in the affirmative. The witnesses all agree that some part of the paper was read aloud; and if, in regard to other circumstances, Mr. and Mrs. Searle’s recollection does not accord with that of Mr. Sandford, I think greater reliance may be placed on his statement of the transaction than on theirs. Their recollection was evidently indistinct as to what was said; they no more agree with each other on that point, than they do with him. But in regard to acts—the reading of a part of the will, the signatures, and that the testatrix said something in relation to the instrument, to Mr. Sandford—they all concur. I think the facts
I next proceed to review the testimony in respect to the capacity of the decedent. She was an old lady, who had resided with her husband at his house in Batavia street until his death, June 23, 1848. Shortly after that occurrence she went to live with her son Alfred, at his residence in the Third Avenue, where the will was made in November, 1848. In April, 1849, she removed to a new house built by Alfred in Twenty-second street, where she remained until her decease.
Mrs. Conover, of Rahway, states that in the summer of 1846, she had frequent opportunities of seeing Mrs. Moore, who was then on a visit at the house of her son Joseph. She saw her daily, and says she was very childish—forgot who the witness was—did not know one of her grandsons— had her food cut for her—was never left alone.
Mrs. Trembly, of Rahway, was in the habit of seeing Mrs. Moore, some years before her decease, when visiting her son Joseph in the summer season. She considered her conversation like that of a child, though she did not recollect any thing said by her that was foolish. “ She would imagine she saw things—think she would see some one coming, and would call Frances. She had her basket, with little rolls, and would lose some of them and would call Frances to look after them. * * w When she imagined some one was coming out doors she would not be satisfied it was nobody, till Frances came and looked out. * * * That was about four or five years ago.” The witness last saw Mrs. Moore in May, 1848, at her house in Batavia street. She says, “She knew me when I came in; she inquired about Frances and her son Joseph. * * "x" She was the same as she was before; she appeared to be a child in her conversation and actions.” On cross-examination Mrs. Trembly, said that at this visit
Eliza Dunham saw the decedent at Rahway, when visiting her son Joseph. She also called on her, with Mrs. Trembly, in May, 1848. She says, “ She asked me my name three times over, when I was sitting at the table; she ought to have known me. * * * She would take hold of her dress, and say it was pretty; it was not any thing fine. I recollect her saying she and her husband were poor. She had a basket, and would take a little roll up, undo it, roll it up and put it back again. She had her glasses in her hand, and would ask for them.”
Mr. Zabriskie, the stepson of William Moore, was in the habit of seeing the decedent two or three times a week, in 1845, and subsequently to that period, three or four times a week. He says she talked in a childish manner, and was checked by her husband. He states that on the sixteenth of October, 1848, he and his stepfather visited Mrs. Moore at the house in the Third avenue; that William “ shook hands with his mother, and she did not know him; she wanted to know who he was ; he said he was her son William. Then I went in and shook hands with her, and she did not know me; William told her who I was; then we sat down on the sofa. Then she asked William where father was—when he would be back, and if we had seen him that day; and William told her, Ho; that father was dead. Mr. Moore had died June 22, previous. She said she could hardly believe it; but, as he said it, it must be so. Mrs. Alfred Moore was there at that time, and present at this eonverversation. She said that mother—Mrs. Moore—often asked about father; where he was; what had become of him, she did not see him.” This witness called on Mrs. Moore after-wards, in 22d street, and states that she did not know him, but when she was told who he was, inquired and talked about his father and the members of his family.
Sarah O’Donnell visited the decedent in May, 1849, and says, “ She bade me look at things in the yard—geese:
John Carter lived in the same house with Mrs. Moore, in 1833 and 1834, for eighteen months, and called to see her two or three times afterwards. At a visit in 1846, he states that she appeared to be childish; did not know him; and it took her husband some time to make her understand who he was.
This is the substance of the testimony against the capacity of the decedent:
1st. Memory.—Mrs Conover states that, in 1846, she forgot who she was, and did not know one of her grandsons who came to make a visit at Rahway. 2. Mrs. Trembly says, that she knew her when she called at her house in 1848. 3. Mrs. Dunham testifies that, on the same occasion she did not know her, and asked her name several times; and that she asked for her spectacles, when she had them in her hands. 4. John Carter says, she did not know him in 1846; and 5. Sarah O’Donnell, that she did not know her in August, 1849. Mrs. Conover was an acquaintance of a few months, in 1846. Mrs. Moore had seen her grandson two months before; but how long a time had elapsed before that, since she had seen him, does not appear. Mrs. Trembly, whom she had only known when visiting at Eahway, was recognised by her in 1848, after a lapse of two years since they had met. Eliza Dunham whom she did not know in 1848, had seen her at Rahway in 1842 and 1846, half a dozen times on each occasion. John Carter had not seen her over two or three times, the dates of which are not fixed, since 1834. Mrs. O’Donnell never saw her but three times, prior to August, 1849. The decedent was about eighty-four years of age when she executed the will, and we are to look for some loss of mental activity and vigor at that advanced age. At that period, the memory, in respect to recent events and new acquaint
2d. Childishness. This is a convenient phrase for questioning the mental vigor of aged persons, though perhaps it is the only mode of indicating a state of the mind peculiar to a certain period of life. It expresses, however, merely the opinion of the observers, and unless supported by facts, has weight only as an opinion worthy of more or less attention in proportion to the opportunities enjoyed for observation. Ho circumstances have been stated, showing unsoundness of understanding in the decedent; her turning over the rolls and work in her basket, and calling her dress pretty, are hardly substantial enough indications of imbecility, even were there no other proof in the case respecting her mental condition.
3d. Optical Delusion. Mrs. Trembly testifies that in 1846, two years before Mrs. Moore executed the will, whilst visiting her son at Eahway, she imagined she saw some person coming to the house, and would not be satisfied until her daughter-in-law, Frances, came and looked out. As I shall examine this subject further hereafter, it is sufficient at this point to say, that such delusion may exist in a sound state of mind.
On a review of the evidence for the contestants, then, the only important fact tending materially to an impeachment of the capacity of the testatrix, is that stated by Mr. Zabriskie. It undoubtedly shows a weak and failing mem
Mr. Searle, one of the subscribing witnesses says, he considered Mrs. Moore “perfectly sane and capable of carrying on and transacting any business.” He never saw her transact any business, but she had lived in the same house with him over four months before the will was executed. He says, “ I saw her daily, and spoke to her daily; I never knew her confined to her bed during that period; * * * during that period I never perceived anything irrational or exhibiting a want of mind on her part. When the will was executed she was in about the same state of health as before. She continued to reside there till May, 1849; her health and habits continued about the same; I saw no difference. I was in the habit of calling in to see her and converse with her, almost every day.” “Her memory appeared to be good.” About a year after she removed from his house, he states, that he first observed any indications of her being irrational.
Mrs. Searle states, that the decedent’s “ mind was quite
Ann Moore, an old lady residing with Alfred Moore, and the half sister of the husband of the decedent, lived with old Mr. Moore in Batavia street, for several years, till after her brother’s death. She again lived with the decedent at
Dr. Wilsey, who had been taught by the decedent when a child, renewed his acquaintance with her in June, 1848, when he was called in to attend her husband in his last sickness. At that time and in the ensuing September, he saw and conversed with Mrs. Moore several times. On December 30, 1848, he commenced attending Alfred Moore’s family, and made seven visits in January, 1849, four in February, six in March, three in each of the months of April, June, July and August. Eighteen visits were afterwards made at various intervals, until March 15, 1850, when he was requested by Alfred Moore to attend his mother, which he did till her death. As to the state of her mind in 1848, he says : “ I did not perceive anything out of the way, as to her mind or recollection. * * I did not talk upon general events more than regarded relatives, and circumstances of early life. Her recollection in that respect was accurate; she had been a teacher at the period I first knew her; her conversation was entirely rational ; I did not perceive or mistrust anything at that time.” In respect to her mental condition in 1849, he says : “ I perceived nothing peculiar in her mind or conversation. "x" "x' I never knew her to be sick at that time, and she was a woman of good constitution.”
In November, 1850, the decedent was seized with a fit of apoplexy, from which, however, she partially recovered; and she lived until October, 1851. The Doctor states explicitly, that prior to March, 1850, he “ did not mistrust any aberration of mindthat from 15th March, to No
Mr. Phinney became acquainted with Mrs. Moore, at the funeral of her husband; saw her once in three or four weeks from that time, till April, 1849 ; and then for about eleven months lived at Alfred Moore’s house in Twenty-second street. He describes the decedent as conversing fluently and intelligently, and states, that he first observed a change in August or September, 1849. He says, “ It was an optical illusion more than anything else; ■ she saw a great many children, persons, horses and carts, where they were not. At the same time, if I told her they were not there, she appeared to be satisfied. Before that, I had, I should think, that kind of intercourse with her which would enable me tb judge as to the soundness of her mind. Down to that period, I saw nothing to indicate unsoundness or aberration of mind. I wish to be understood, that when the optical illusions passed off, her mind was as clear as ever; they were only for a short time.” * * ' “ Her memory was good; I never saw any indications of absence of memory; she always recognised me. I never saw, before the optical illusions occurred, the least failure to recognise persons.” Mrs. Phinney, the wife of this witness and
Mr. Trowbridge, who formed an acquaintance with the decedent when visiting her son at the house in the Third avenue, and who saw her once in Twenty-second street, states that she always knew him and called him by name, and that he “ perceived nothing like a failure of mind.” Robert Reeder was agent for the decedent’s husband fourteen years. He knew Mrs. Moore very well, and was in the habit of seeing and conversing with her frequently, while she lived in Batavia street. From the time she left there, he did not visit her until May, 1849, when he called at the house in Twenty-second street. She knew him then “ perfectly well,” and inquired about their old neighbors. He saw her again in the fall; had some conversation, and testifies that he observed no failure of “ mind, memory or recollection,” on any of these occasions.
Mrs. Blount was a pupil at the school of the decedent, in 1806, and visited her two or three times a year, some years ago. She saw her in the Third avenue but once, in the spring of 1849 ; and although they had not met for two or three years, was recognised by Mrs. Moore, who inquired after her mother and sister by name, conversed with her for some time, and stated that she was going to reside in Twenty-second street. Mrs. Blount subsequently called on Mrs. Moore, two or three times that summer, after she had moved to Twenty-second street. She states that she per
Mrs. ¡Robertson, sister of Mrs. Blount, who had once been a pupil of the decedent, and had continued her acquaintance, visited her in company with her mother and sister, in October, 1849, and also a number of times subsequently. On the first occasion, she says, “ It was the first time my mother had seen her since Mr. Moore’s death.— She spoke of her husband very affectionately, and wished us to go up stairs and see his portrait, to see if my mother would recognise it.e She followed us through the entry .and tried to go up stairs, and could not; she fell in the entry and partially fainted ; she came to ; she was perfectly rational. * * I observed nothing like wandering of mind then ; I never did ; * * I never observed any wandering or deficiency of mind; I did observe a failure of memory.”
Besides the opinions and circumstances thus given in evidence, there are some other facts tending to show the state of her mind. Dr. Wilsey states that she showed him some plants and told him the names of several of them ; that he often saw her reading; she showed him passages in the Bible; and that she recollected previous conversations. Mrs. Searle saw her at work with her needle. Mr. Birch, saw her reading. Mr. Cook says, in August, 1848, he found her reading a book and newspaper, and that in the morning she would take up “The Sun.” Mrs. Reeder testifies that, to the death of her husband, she was in the habit of doing her own sewing, mending and washing.—
On the whole, unless fraud, undue influence, or imposition be established, I do not think the will should be rejected. Alfred was one of the administrators of his father’s estate, and, May 13,1850, received a power of attorney from his mother. Before that, however, the real estate was sold, Mrs. Moore joining in the deeds with the knowledge of her sons, and the accounts were settled, she receiving one-third of the proceeds both of the real and personal property. In these accounts, she was debited with a large sum of money paid to her; and the balance on the settlement was paid over to her, and the whole matter closed with the privity of all the parties. It does not appear that in that important transaction her competency to act was ever questioned. hTor is there any proof that Alfred exerted any influence over her mind by any abuse of his position as administrator. We are left, therefore, to determine whether the facts, that the will was executed while she resided with him, that he is a beneficiary to a large amount, and gave the instructions for drawing the will, are sufficient to invalidate the instrument. These circumstances, in the case of an aged lady, certainly require vigilant examination, in order to see that the testatrix acted freely and with intelligence. Mr.
Mrs. Searle says, “ Mrs. Moore had spoken to me before