2 Keyes 229 | NY | 1865
Lead Opinion
Sarah Kexsen, the testatrix, was a single woman, and previous to April, 1852, had resided in a house in Brooklyn with her sister Catharine. In this month her sister died, and she soon thereafter removed to the house of her brother, William Kexsen, in whose family she continued to reside until her death, in January, 1862. She was possessed of personal estate of the valué of about $15,000, and some real estate, the value of which does not appear; and,
On the 8th of March, 1855, a codicil wa's added to the will, declaring that, in case the respondent should die before she did, then the devise and bequest in the will to him she gave to his three children therein named, share and share alike; and, in case the respondent should not be living at. the time of her death, then she constituted and appointed his two sons executors in his place and stead.
The testatrix was in the eighty-ninth year of her age when she died, and the respondent was over eighty years of age. He had acted as her agent in the management of her property for nearly thirty years before her death. The testimony shows that she possessed ordinary intelligence, could read and write and mixed in society as much as ordinarily by a person of her advanced age. It is abundantly established by the testimony that, at the time of the execution of the will, she was competent to make it, and the simplicity of its provisions indicate that it could be easily comprehended by a person of even feeble intellect. The disposition of her estate is such as might naturally be anticipated.
The deceased had two brothers of the full blood, William Hexsen, the respondent, and Walter Hexsen, deceased, who left three daughters, named as legatees in the will, and three sons, and also a brother of the half blood, George W. Hexsen. He, with Walter Hexsen and Oscar Hexsen, sons of Walter Hexsen, deceased, are the appellants, and her next of kin, and the contestants before the surrogate. Catharine Hexsen, her sister, with whom she lived and kept house, died in April, 1852,' and immediately after her decease the testatrix broke
By the will offered for probate, the testatrix gave to her brother George a legacy of $1,500, and $500 each to her three neices, the daughters of her deceased brother, Walter Nexsen, and the residue to her brother, the respondent. She therefore gave to her half brother, and to the daughters of her deceased brother, $3,000, and the residue to the brother, with whom she undoubtedly expected to spend the residue of her life, and upon whose- kindness and care she relied. Her age at this time would naturally lead, her to infer that she would be dependent on him and his family, for those attentions and that care so imperatively demanded by her infirmities and advanced age. It was therefore quite in the ordinary course of things, that, soon after her removal to her brother’s house, and settlement there, she should make such a disposition of her estate as this will contains, nothing appears to indicate any reason or ground for supposing that her half brother, or the sons of the deceased brother, had any peculiar claims upon her bounty, or to share in her estate. The facts disclosed by the testimony would lead an impartial mind to the conclusion that the disposition she made of her estate was peculiarly wise and just to all concerned, and the one most calculated to promote her own happiness and comfort for the residue of her life.. Nothing appears to warrant an inference, that her just expectations in this regard were not fulfilled, or that the recipient of her bounty failed in the discharge of any duty to her.
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
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, an.d nearly up to the time of her
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. It 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
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 Coffin v. Coffin (supra), the circumstance that the person who prepared the will was appointed one of the executors, and was also a legatee, was urged as a consideration why the court should infer fraud and undue influence in procuring the execution of the will. It was justly said, in that case, that facts of this kind may and do often very justly excite the suspicion of courts, when fraud and undue influence are alleged. But it is not a rule or principle in the law of testaments, that the draftsman of a will cannot be an executor, or cannot take a benefit under it. There seems nothing unnatural, therefore, in the selection of the respondent as the executor, but, on the contrary, he seems peculiarly to be the most proper and obvious person to be selected for the performance of the duties incident to that office. The same remark might apply with equal force to his being selected by the testatrix as the beneficiary of the .bulk of her estate. The'considerations most likely to have influenced her mind in making such a disposition, have already been adverted to. They are obvious and natural, and such as would be most likely to influence and govern persons in the disposition of their estate. We' see no facts disclosed in the testimony, or any force in the considera
Dissenting Opinion
'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 soundness, upon the truth or correctness in degree of the others; and this case belongs to that class of cases where the duty of examining the facts belongs to this court, and in this regard they are not aided by the findings of the courts below any further than that respect which one court is bound to pay to opinions from so respectable a-source, but which are in no wise to be regarded as controlling.
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 different 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 the 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 (reported in 26 Wend., 255), and Blanchard v. Nettle (3 Denio, 37), are instances of this class. And, if any standard of capacity to
• In the case of Delafield v. Parish (supra), which is one of the latest cases, a quorum of that 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 icompos mentis,’ or 'non compos mentis,’ in the fixed legal meaning of those terms.” If this is a general rule, applicable to wills of both real and personal estate, then the fixed legal meaning of those terms is also a controverted question, and then an impaired memory, and an impaired mind, are held to be equivalent terms in determining the question whether the testator is compos mentis, or non compos mentis. Our statute contains the following provisions (2 Eev. Stat., § 1, pp. 56, 57, marg. paging): “All persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate by a last will and testament duly executed according to the provisions of this title.” By section 20 of the same title (p. 60), “ Every male person of the age of eighteen years or upward, and every female not being a married woman of the age of sixteen years or upward, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing.” The language of these two sections excluding persons of “ unsound mim,d ” in devises of real estate, and allowing persons of “ sound mmd and memory ” in personal estate, to make wills, would, from the language employed, seem to recognize a distinction between
Among-the cases cited in the very able opinion of Judge Davies in the same case, is that of the Marquis of Winchester (6 Rep., 23 A). In that case the court granted prohibition to probate, on the ground of non-sane memory. It was said, “ that by law it is not sufficient that the testator be of memory when he makes the will, to answer familiar and usual questions; but he- ought to have a disposing memory, so that he is able to make disposition with understanding and reason, and that is such a memory as the law calls a sane and perfect memory.” There is also the case of Harrison v. Rowan (3 Wash. C. C., 385). Judge Washington said: “ He must, in the language of the law, have a sound and disposing mind and memory; in other words he ought to be capable-of making his will with an understanding of the nature of the business in which he is engaged—a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and of the manner in which it is to be distributed between them.” Also, the case of Clark v. Fisher (1 Paige, 171), in which Chancellor Walworth held as follows: “The testator must be of
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 $16,623, besides some household furniture and wearing apparrel, and a house and lot on Pearl street, the value of which is not given. She devised to her brother, George W. Eexsen, $1,500, to three nieces $500 each, and all the rest and remainder of her estate, real and personal, without stating its amount, she gave and bequeathed to her brother William, the executor, leaving other brothers and sisters, nephews and neices, ordinarily the object of affection and bounty, without any bequest whatever. The fact whether she had sufficient mind to dispose of her estate, is to be determined from testimony in direct conflict; is of great weight and strength against as well as in favor, and, to a court of review, of great difficulty of determination, without reference to the question of memory. Upon the question of memory, the contesting evidence is without contradiction. I do not propose to enter into a careful and critical analysis of the whole evidence in the case. The view I have taken
On the subject of the memory of the testatrix, one witness, the wife of her brother, Walter Hexsen, who had known her sixty-two years and saw her as often as once a fortnight, ■ sometimes stayed all day and all night, says, “ Her memory was-poor; I asked her about her friends, she had forgotten them all; I observed her memory was failing, and after she had the paralysis her memory was still more gone.” This witness also testified to the state of her mind, which I do not insert.
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.”
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 doxibtful, I think did not have due consideration in the court below. Taking the question of memory into consideration in detei'mining
I am still less satisfied with the decision on the question of undue influenee. 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 casts 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 other, instruments obtained will be set aside as presumptively arising from the exercise of improper influence, and as being against propriety and public policy. In Evans v. Ellis (5 Denio, 640), a case in the Court of Errors,- a security taken by a solicitor from his client was held to be presumptively void and unfair, and the onus of proving its fairness was on the solicitor. Beardsley, J., said, “ that no security given by a client to his solicitor should be allowed to stand ■in any case- unless its fairness in every respect be shown by
In Sears v. Shafer (6 N. Y., 268), Judge Gridley 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 Denio, 607; Hill on Trustees, 156 to 162 ; Story’s Eq. Jur., §§ 308 to 324; 16 N Y, 285; 13 Barb., 524; 31 id., 9; 2 Bevan, 75; 7 Simons, 539; 15 Vesey, 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 it. “ The law demands that where confidence is reposed, it must be faithfully acted on, and preserved from any intermixture of imposition. If influence over another is acquired, it must be kept free from taint of selfish interests and cunning, and overreaching practices.” (Story’s Eq. Jur., §308.) The respondent has failed to relieve himself from this presumption.
All concur in opinion of Davis, J., except Potteb, J., whose dissenting opinion is given.
Judgment affirmed, with costs.