2 Bradf. 133 | N.Y. Sur. Ct. | 1852
This will was opposed by all the adult children of the deceased, except Mrs. Mowry, the wife of the executor, by whom it was propounded. The grounds of contest were, insufficient proof of due execution, and of the identity of thedecedent; and that the will was obtained from the deceased, while in a state of impaired and debilitated mind, by means of undue influence.
In regard to the execution, I think all the proper formalities were observed; and though the witnesses were strangers to the decedent, yet there seems to be no just reason for doubting that the person who executed the will was Martin Silber. The proof of the signature by persons familiar with his handwriting is conclusive on that point, and instead of there being any objection to resorting to evidence of handwriting for such a purpose, it seems to me eminently proper in a question of identity to invoke that class of evidence.
In order to determine the other branch of the case, a large variety of circumstances must be considered.
The deceased was a German by birth, and spoke the English language with difficulty. He had retired from business, and during the last few years of' his life his faculties became impaired; and after the death of his wife, which occurred in June, 1850, he gave himself up to grief and despondency. He had six children, three of whom lived with him at his residence in 16th street until the end of the month of April, 1851, when the family was broken up, and he went to the house of his son-in-law, Mr. Mowry,
Mr. "Whitehead, one of the witnesses to the will, and the professional gentleman who drew it, states chat he received his instructions from the decedent in person; and at a subsequent interview attended the execution of the will. He found him in bed apparently sick, and says, “ I was particularly struck with the clear and, as appeared to me, perfectly sane mind of the testator. No testator that ever executed a will in my presence ever exhibited more signs of sanity than Mr. Silber. I observed no signs of defect of memory or understanding. I could not judge whether his memory was good or not, as I had no means of judging, except this transaction.” “ Decedent expressed himself very clearly and intelligibly as to the provisions of the will. I was particularly struck with it.” “He was feeble. Had to be helped to rise out of bed when he signed the will. Mr. Price and Mr. Mowry both assisted him to the edge of the bed. He did not get out, but sat on the edge. He wrote his name with some difficulty. His hand was tremulous and feeble. Soon as he had signed his name, he was immediately put back in bed.” Mr. Price, the other subscribing witness, states that the decedent “ appeared to be rational and collected;” but he says, “ I had no means of judging of his .mind except what was then said. When I asked him how he was, he said, Very feeble, and he did not expect to live long. He was quite feeble.” Doctor Pennington, who visited the deceased on the 9th and 10th of June, says, “ I found him very weak at my first visit.” “ He was always in bed. He was very feeble.” “ I should think his mind was sound. The question never occurred to me as to there being any want of intellect. I had no conversation with him beyond inquiries as to his symptoms.” “ I discovered no traces of depression but what I could account for from his physical disease. He died of that disease. I saw no evidences of mental derangement, and
Mr. Reed, who lived next door to the decedent for eight or nine years, states that he was in the habit of visiting at his house until a year ago last winter. He says : “ I think he was a man of ordinary mind, so far as I was capable of judging. I saw nothing to make me think differently.” “ I should think he was mentally capable of transacting ordinary business.” “ I never noticed anything strange or extraordinary in his language or conduct, or anything that led me to suppose his mind was weak or imbecile. I saw him occasionally after his wife’s death. That seemed to make an impression on him. He talked a great deal about it. That is the only difference I noticed.” “ He conversed sensibly, as far as I was capable of judging.”
Mr. Denham, who knew the decedent, and saw him occasionally for ten or twelve years before his death, says : “ Shortly after his wife died he came to my office.” “ I think the subject of his conversation then was the death of his wife. That was pretty much all he talked about. He appeared to be much grieved about it. He expressed himself very feelingly. I did not notice that he was not altogether himself.” “I considered him to be a man of ordinary mind. I did not notice anything peculiar.” “ I supposed he was capable of transacting ordinary business at the time of the transactions I had with him. I did not look upon him as a weak, imbecile man, incapable of transacting ordinary business—such business as he was in the habit of transacting. I presumed he was capable. He appeared to understand the price he ought to get for his property. He seemed to have the usual mind of a man in his sphere of life and business. I can’t say I saw anything leading me to suppose his mind was impaired.”
Mrs. Reed, the wife of one of the previous witnesses, who was in the habit of seeing and conversing with Mr. Silber frequently previous to his wife’s death, says he used
Mr. McIntyre states that when he lived in the neighborhood, he had business dealings with Mr. Silber. He esteemed him to be of sound mind, good judgment, and capable of making a good bargain. But he left that vicinity about six years ago, since which period he met him only casually in the street, and exchanged a few words with him. He says: “ I had, after I left the neighborhood, no such communications with him as to enable me to judge of the soundness of his mind, except that when I did see him I observed nothing indicating unsoundness but the effects of old age, and that he was getting feeble.” “ I don’t think I saw him after his wife’s decease.”
John Hilton, who knew the decedent for twenty years, and traded with him when he was in business, states : “ I considered him capable of transacting business six years ago.” “ I considered him a bright man, taking in view the disadvantages he labored under, from speaking English imperfectly.” “ He was in the habit of coming to my store, sitting and talking, may be, quarter or half an hour.” “ The last time I saw him, to talk with him, was about three months before his wife’s death. At that time I observed no failure in his health. I observed no change in the capacity of his mind at that time. He did not seem so bright as before. He was rather dull, and could not comprehend so quick as' formerly. He did comprehend, but not so readily. I rather think he was then affected by his age; but not to such an extent as to make him incapable. He knew very well what he was about.”
This ends the list of the witnesses brought to sustain the capacity of the decedent. It consists of the two gentlemen who witnessed the will—one of whom never was in his company before, and the other had seen him only once previously; of the physician, to whom he was a stranger ; Mr. Reed and his wife, neighbors, who saw him frequently; and Denham, McIntyre, Hilton, and Johnson. Mr. Whitehead formed his opinion mainly from the manner in which the decedent gave the instructions for drawing the will. Mr. Price was not in the room even when the will was read, and had no other opportunity of judging, than was afforded by the few words that passed when the will was executed ; and Dr. Pennington had no conversation with him beyond the usual inquiries in respect to his symptoms. Mr. Reed’s opinion is entirely overborne by that of his wife, and by the facts on which she based her conclusions; and her means of observation were far superior to his. Mr. Den-ham saw the decedent but once after the decease of his wife. Mr. Johnson, to use his own words, “ had little chance to judge ” of his capacity, and conversed last with the deceased a month or two before his wife’s death. Mr. McIntyre did not see him after his wife’s death, and for the last six years had only exchanged a few words with him in the street. Mr. Hilton was in the habit of social intercourse with him to a later period; but had no conversation with him since about three months before his wife’s decease, and then he thought him affected by age, and more dull than formerly, though not to such a degree as to render him incapable.
The evidence on the part of the contestants comes down
Charles Feitner, a brother-in-law of the deceased, and a witness for the executor, says : “ I observed a very great alteration in him after the death of his wife. He gave up to grief.” “ He seemed to sink in health after his wife’s death. He became very feeble. Before his wife’s death, so far as I knew, his mind was sound. His habits were very singular—were German. He became very melancholy after his wife’s death. I did not see him very often. There was no insanity; but after his wife’s death, I should not think him capable of conducting business.” “ His mind became so melancholy and unconcerned that I think he was incapable of doing business.”
John Doyle, who married the decedent’s neice, and knew him for twenty years, says : “ In point of intellect, I should consider him a very plain man indeed—I should think below the medium rate of capacity, in his brightest days, I mean. I saw him after his wife’s death. I discovered a very material change in him. He appeared to be perfectly like a child; had no animation whatever in his manner of speaking. When you would speak to him, he would just answer the question, and seemed hardly to know what was said and what he was saying. His chief conversation was, that he wished to go where his wife was.” “ He appeared to fail both in body and mind; and I think in mind most, from his appearance. He appeared to me to be perfectly stupified—to have lost all animation. When I saw him, he was lying down. He seemed to be perfectly stupid. I should not think he was able to concentrate his mind on any given subject so as to do business.” “ I last saw him some weeks before he went to Newark. That is the only time I saw him after his wife’s death. I should not think he was of sound and disposing mind, and capable of making a will at that time.”
Dr. Nelson, who was acquainted with the decedent for the last ten years of his life, and for a part of that period
Dr. Wells, who knew the decedent over twenty years, says that “ for the last ten or twelve years there was a falling off in his capacity, which, for the last four or five years, became more marked. His bodily and mental vigor were very much impaired by the ravages of time, and the circumstances attending his trials, cares and pains.” The Doctor attended him on one occasion, after his wife’s death, in April last, and states that he then “seemed almost lethargic.” “ He evidently was affected by the death of his wife; for from that time he was worse in body and mind.” “ The last three or four or five years”—“ I should not think he was capable of transacting business. I should think he was childish. He was growing uniformly more infirm as to his mind in the last four or five years.”
Catharine Harsen, a sister-in-law of the deceased, who knew him thirty-seven years, says : “ Before the death of his wife, I discovered a change in his mind. His mind grew duller. I thought his intellect was a great deal weaker.” “ He was very much affected by the death of Ms wife, so that he cared for nothing.” “ His mind was affected by her death. He said, he would as lief die as live.”
Mr. Denman, who knew the decedent for fifteen years, says: “ There was no particular difference in his intellect, that I ever discovered, until the decease of his wife. He then seemed to be failing; and in his conversations subsequent thereto, expressed, as his only wish, a desire to depart and be with her. His mind was then weak and feeble—•
The Rev. Mr. Crawford, the minister of the church to which the decedent was attached, and who visited and conversed with him frequently after his wife’s death, says: “ When I first became acquainted with him, he appeared to me to be in a broken state—not by any means to be enjoying his full strength of mind. He complained to me of failing memory, and of great timidity. This was before his wife’s death. I noticed immediately on the death of his wife, I thought, a very decided sinking in mental power and physical health both—a general giving way of the forces of life. I think his weakness, mental and bodily, rather increased. He seemed less and less collected in his conversations.” “ This sinking appeared to me to continue till I last saw him. It appeared to me he was not of sufficient mental capacity to make a will at any time after his wife’s death.” “ I should have called him a childish old man. The childishness increased very manifestly after his wife’s death.” “ The death of his wife weighed upon him very heavily. His mind could scarcely be diverted from it. That seemed to he the one idea.” “ His mind was very inactive. Sometimes, when I was speaking to him, he appeared to settle away, and not to notice anything around.” “ His incoherence was more discoverable on other subjects than on his wife’s death. It was evinced in stating the same thing over and over again, on different visits and sometimes on the same visit, as if it were quite fresh.” “ When I last saw him, there was considerable change, as to the state of his mind, from what it was when I first saw him. It seemed to be an aggravation of the same difficulties under which he labored when I first saw him—the loss of memory and confusion of mind—added to which there
Without going further into details of this kind, it is enough to say that the same general view of the decedent’s mental condition was taken by several other witnesses, whose means of observation were quite equal, if not superior, to those of the witnesses on the part of the executor. The evidence very clearly preponderates towards the conclusion that for several years the mind of the decedent was failing in vigor and tone. He retired from business, depended more on his family, and when his wife died, surrendered himself to melancholy and despondency. His memory became impaired; he repeated the same thing several times in the course of the same conversation; he . cried when his wife was alluded to; and, to use the language of one of the witnesses, had a “ monomania ” on that subject. These facts are established by persons with whom he dealt, and by his brother-in-law, nephew, and sister-in-law, two physicians who had attended him, and the clergyman of the church to which he was attached. Though a state of absolute legal incompetency is not shown, yet the mind of this old man was so impaired that a testamentary disposition of his property should not be sustained, unless affirmatively proved to have been fairly made, to have emanated from him of his own free will, without the interposition of others, and to have accorded with his testamentary intentions, otherwise expressed or to be implied from the existing state of his family relations.
Several of the witnesses, who enjoyed excellent advantages of observation, state that the decedent never indicated any preference or partiality among his children, unless it were for Mrs. Bogers, William and Theresa; and there is not a breath of evidence tending to show peculiar favor towards Mrs. Mowry. Some years before his decease he gave each of his children, except Theresa, a lot on 36th street. The one designed for Theresa was sold, and he intended to give her another in lieu. Subsequent to that
Under such circumstances, it would be reasonable to expect that a will, if made, would provide equally for all his children, after devising to Theresa the lot designed for her. The instrument offered for proof devises that lot to Theresa, but also gives his dwelling house on 18th street to Mrs. Mowry, subject to legacies of $650 to each of his other five children. These legacies were payable, without interest, at the end of a year. The house is worth some $6,000. Thus, with the exception of Theresa’s lot, almost the entire half of the estate is given to Mrs. Mowry, and the remainder among the other children. This is unequal, and finds nothing to support it in any glimpse we can obtain of his intentions in respect to his property, or of the state of his
Much stress is deservedly laid in cases of tMs kind upon the instructions. But it is not enough that the instructions should proceed formally from the testator to the draftsman. Nothing is easier than to supply such important evidence, by preparing the mind and moulding the will beforehand, so that no trace of the controlling influence need be discovered, except so far as must appear in the nature of the instructions. Hr. Whitehead, the counsel who drew the will, says, “ He simply gave me his directions—gave me no reasons for the bequests he directed. He appeared to have made up his mind previously as to the provisions of the will. That was undoubtedly the case.” “ I made no suggestion, but took his instructions and acted upon them. I think I simply received'his instructions, and did not go into particulars.” Mr. Whitehead states that he was “ particularly struck ” with the clear and intelligible manner in wMch Hr. Silber expressed himself as to the provisions of the will; and he says the “ decedent spoke English well, fluently, so that he could be well understood, but with a slight German accent.” It is certainly remarkable that such instructions should have been so clearly given, and that the decedent should have spoken so fluently as to be readily understood, when the evidence in the case conclusively establishes that Mr. Silber understood English so imperfectly, and spoke it in such a broken manner that it was difficult to understand him, and necessary, in order to hold a protracted conversation, to repeat and explain frequently. I have no doubt of the correctness of Mr. Whitehead’s testimony ; but it is susceptible of reconciliation with other evidence, on the supposition that the decedent had previously made up his mind, which, indeed, Mr. Whitehead says “ was undoubtedly the case.” Very little, if any, weight