3 Abb. Ct. App. 360 | NY | 1865
Lead Opinion
By the Court.
[After stating the facts.] — By the will offered for probate, the testatrix gave to her brother George a legacy of fifteen hundred dollars, and five hundred dollars each to her three nieces, the daughters of her deceased brother, Walter Nexsen, and the residue to her brother, the re
The testimony in the case leaves no reasonable doubt on the mind that at the date of the execution of the will the testatrix was of sound and disposing mind and memory.
The opinions of the witnesses from which a contrary inference might be drawn are unsustained by any facts; nay, the whole current of the testimony and the facts developed lead to the conclusion that these opinions have no substantial basis. Opinions of witnesses can only be entitled to weight, and be of any value, when accompanied with the facts upon which they are based, and, having the facts, it is for the jury or the tribunal called upon to scan and consider the testimony, to ascertain if the conclusions and opinions of the witnesses are sustained by the facts detailed by them, and from which they have drawn their conclusions. Opinions without facts are of but little importance. Delafield v. Parish, 25 N. Y. 9, 37; Clarke v. Sawyer, 3 Sandf Ch. 351; Cilley v. Cilley, 34 Me. 162: De Witt v. Barley, 17 N. Y. 340.
It would, therefore, have been more satisfactory to my mind if it had appeared, unequivocally, that the will had been read over to the testatrix before execution, or that she had read it herself. The latter may, I think, fairly be inferred from all the circumstances. It appears that she could write and read writing. That for several years after the execution of this will, and nearly up to the time of her death, she was in the practice of writing and reading, and that she was of sufficient capacity to transact business. It appears from the testimony of one of the attesting witnesses (the other being absent from the State, and his handwriting having been proven), that those witnesses were requested by the respondent to proceed to his house, and there witness the execution of the will. That they found the deceased in her room at her brother’s house, with the will drawm, and all ready for execution, except placing thereon a seal. That this was done by the witnesses, and the same was then signed by the deceased, and the attesting witnesses then signed as such in her presence and in the presence of each
The clue execution of the will was sufficiently established. All the statute formalities were properly and fully observed. The testimony of Judge Johnson as to those formalities is clear, and sufficiently distinct to answer the requirements of the statute, and is more full and ample than evidence which this court thought adequate in Coffin v. Coffin, 23 N. 7. 9. It was said in that case, that all the statute requires is, that the act of publication and the act of requesting the witness to sign shall both be performed. These acts are distinct in their nature or quality, but their performance may be joint or connected. It a testator should say to the witness, “ I desire you to attest this instrument as my last will and testament,” the language would import not only a request, but a clear publication of the will. In the present case, the two acts of publication and re
It is a matter of no particular moment to inquire whether the testatrix had testamentary capacity at the time of the execution of the codicil. The respondent having survived the testatrix, it became wholly inoperative, as it was not designed to have any effect unless upon the contingency of his dying before the testatrix, tt was a natural and obvious disposition of the property to give it to the children of her brother if he should die before herself. They occupied the same house with her, and were daily ministering to her wants and comforts. It 'was, therefore, reasonable and proper that she should desire to secure her estate to them, in the event of its not being received by their father. And it was eminently discreet in her, considering the advanced age of her brother, and the uncertainty of his surviving her, that she should make provision for another executor or executors in case of his decease, before her death.' And no inference of undue control can be predicated of the the fact that in such a contingency, she designated his two sons as her executors. One of them, it appears, lived in an adjoining house to that occupied by her, and frequently transacted business for .her.
But even if her mind was feeble at the time of the execution of this codicil, and undue influence had been exerted to procure it, these circumstances would not necessarily show or establish want of testamentary capacity at the time of the execution of the will, in July, 1852, or that that instrument was procured by the exercise of undue influence or control. In the case of
All the judges except Potter, J., concurred in this opinion.
Dissenting Opinion
[Dissenting.] — The appellants present three points of objection to the judgment of the general term and of the surrogate, to the admission of the will and codicil in question to probate: First, that they were not properly executed; second, that the testatrix was not of sound mind or competent to execute a will; third, that the execution of the will and codicil was obtained by undue influence over the mind of the testatrix.
Each of these positions depends, for its correctness, upon the .facts of the case. And each point so raised depends, for its
If we look into the books for authority to direct us in our duty on this review, we cannot find it. The cases all depend upon a peculiar state of facts, and each case upon its own, which has no parallel; and opposite opinions between the most distinguished judicial minds are found drawn from the same facts in a given case. The case of Delafield v. Parish, in this court (reported in 25 N. Y. 9), is an instance of this kind. So, too, cases reported from the highest court of authority in this State, in which rules seem to be laid down for the government of courts in future, are either overruled or so discredited by subsequent decisions that they are now disregarded as authority. Steward v. Lispenard 26 Wend. 255, and Blanchard v. Nestle, 3 Den. 37, are instances of this class. And, if any standard of capacity to make a will has been established by statute or common law in this State, still, the question whether a particular case comes up to that standard, depends, after all, upon the facts, which are generally conflicting, and upon which judges, also, equally distinguished for legal wisdom and discrimination, arrive at entirely opposite conclusions as to that capacity. No mere judge has yet been found, I think, capable of drawing a precise and definite line, which shall be adopted as a rule of law to distinguish between idiocy and mental power; and, if this could be done, no two cases could be found in which, in their facts, there would not be such important differences as to bring it back to the question of fact, whether it did or did not come up to the established line.
In the case of Delafield v. Parish, supra, which is one of the latest cases, a quorum of this court held it to be law “ that the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was ‘compos mentis,’ or ‘non compos mentis,’ in the fixed legal meaning of those terms.” If this is a general rule, applicable
Among the cases cited in the very able opinion of Judge Davies, in the same case, is that of the Marquis of IVInchcs
It is undisputed that the testatrix was a maiden lady, and at the time she made her will was of the age of seventy-nine, and was eighty-two when the codicil was made, was a person of quiet and reserved habits, and of weak mind, and died at the age of eighty-nine. Before April, 1852, she had resided for years with a blind maiden sister. At the sister’s death she removed to the house of her brother William, the respondent; the sister died in 1852. Before making her will, she had been residing with her brother, the executor, and principal beneficiary in the will. She left in personal estate about sixteen thousand six hundred and twenty-three dollars, besides
On the subject of the memory of the testatrix, one witness, the wife of her brother, Walter Nexsen, who had known her
Barbara Bogart, who, after testifying to her state of mind, says, “ I don’t think her memory was strong at any time; the death of her sister had a powerful effect upon her, it confused her.” On cross-examination, she says, “ for the last five years I could not bring myself to her recollection. I first discovered that she did not remember me at all about six years before she died. . . After the paralysis her mind failed her rapidly.”
Catherine M. Hexsen, wife of one of the contestants, age fifty-nine, had known testatrix from childhood of the witness, she testified as follows: “Katy (the other maiden sister) died in March, 1852. Sarah failed very rapidly after her sister’s death, both mentally and bodily; the idea of her sister’s death seemed to fill her mind. . . She seemed to lose her mind gradually altogether; she would sit alone, and walk up and down; she forgot her old friends; I would try to recall her old friends, and found she had forgot one after another, even her brother and sister; I observed that her failure of memory increased as she advanced in age.”- To the question put to her, “Was she, from your observation, from the death of Katy to the time of her own death, of sound mind and memory ? ” she answered, “ She was not of sound memory certainly, and her mind was always weak.” On further direct examination, she stated as follows: “ Just after Katy’s death she talked intelligently, her mind was not wandering or delirious at any time, she was oppressed at the idea of Katy’s death; I was surprised that she forgot John, because Katy brought him up, and she left alibis property to them; she forgot my children except my eldest daughter; this was not long ago — ten years.” On further cross-examination: “ The conversation about her brother John took place in the parlor of her brother William; I afterward referred to her brother John, but she had forgotten him; can’t say how long before she went to her brother William’s that I
These uncontradicted statements' of the impaired memory of a person of naturally weak mind, so weak indeed as to render her capacity for making .a will doubtful, I think did not have due consideration in the court below. Taking the question of memory into consideration in determining whether the testatrix was compos mentis, I think the weight of evidence was not fully regarded.
I am still less satisfied with the decision on the question of undue influence. Taking into view the state of mind and memory of the testatrix; the relationship between her and the principal legatee and devisee; the fact that this beneficiary was her agent, that she lived with and was supported by him; the form of the will, omitting to name any sum given to the respondent; the omission to name her blood relatives equally near to her; the fact that the will was drawn by and prepared by her said confidential agent, with no evidence of its being read to her, with no evidence of directions from her as to its dispositions; the agency of the respondent in obtaining legal witnesses to its execution but not to its preparation; his liberal gifts for such service to witnesses ; these are a combination of circumstances creating not only great suspicion of unfairness, but are such constructive evidence of undue influence as casis upon the respondent the onus of proving fairness and integrity on his part, in relation to the instrument produced by him, which he claims to be her will and codicil. This, I understand to be a rule of law applying to all instruments creating estates in favor of a party standing in confidential relations with the person from whom the instrument is obtained. Whether it be attorney and client, agent and principal, physician and patient, pastor and parishioner, parent and child, brother and sister— whatever the confidential relation may be where the influence that is obtained by habitual confidence, where the one is dependent or relies upon or reposes in the confidence of the
In Sears v. Shafer, 6 N. Y. 268, Judge G-ridlby sums up the whole doctrine as follows: “A court of equity interposes its benign jurisdiction to set aside instruments executed between persons standing in the relations of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations in which one party is so situated as to exercise a controlling influence over the will and conduct and interests of another. In some cases undue influence will be inferred from the nature of the transaction alone, in others from the nature of the transaction and the exercise of occasional or habitual influence.” The following authorities are to the same effect. Howell v. Ransom, 11 Paige, 538; 10 Id. 352; 2 Den. 607; Hill on Trustees, 156 to 162; Story Eq. Jur. §§ 308 to 324; 16 N. Y. 285; 13 Barb. 524; 31 Id. 9; 2 Beavan, 75; Simons, 539; 15 Ves. 120.
These, with a series of cases uniform in their tendency, are irresistible in their authority in casting the presumption against the good faith of this will and codicil; they not only throw the onus upon the respondent as to the state of the mind of the testatrix, but more than this, the onus is cast upon him of showing that this will was read to the testatrix, or that she dictated and understood its terms. He has failed to do this. The advantages of the will to him are so decided, that they must be held to cast this legal presumption of fraud and breach of confidence upon the respondent. He has not met
If this is a correct view of the legal presumption in this case, then, even the execution of the will fails of proper proof. I am, for these reasons, for reversing the judgment of the supreme court, and of the surrogate, admitting the will to probate.
All the judges, except Potter, J., concurred in affirmance.
Judgment affirmed, with costs.
Compare Marvin v. Marvin, and Mason v. Ring, in this volume.