4 Bradf. 311 | N.Y. Sur. Ct. | 1857
The decedent died, on the 24th day of January, 1855, and the will propounded for proof bears date on the sixth of the same month. The subscribing witnesses prove the formal celebration of the will, in conformity with the requisitions of the statute, but it is alleged on the part of some of the next of kin, that the-instrument was procured to be made by means of undue influence, when the decedent was in a state of enfeebled mental capacity occasioned by sickness and intemperance. The instrument provides for the payment of the decedent’s debts and funeral expenses; the erection of “ an appropriate tombstone, to he not less in
I shall first consider the evidence directly bearing upon the mental and physical condition of the decedent, before and at the time of the performance of this act.
The contestants produced four witnesses, and but three of these testified adversely to the decedent’s competency. Thomas Gilroy, a second cousin of the decedent, and'well acquainted with him and his connections, testified that McKeon was habitually a “ pretty hard” drinker; he saw him frequently, and for about two months previous to his death, visited him once or twice a week; was there on the 27th or 28th of December, the 6th of January, and again about a week after. He says McKeon was always under the influence of liquor. At his first visit he was intoxicated, was lying in bed, “ did not say much;” at the next visit, “ he was in the same way;” the witness took him brandy out of the store twice, at his request. He says, generally, that there were decanters and glasses on the table by the bedside, said to contain wine: “ I used to help him out of these decanters, three or four times while I would be in the room, putting my hand under his head, and holding the glass to his mouth; he was not able to help himself.” Gilroy states that on the 27th of December, McKeon “ was more intoxicated than usual;” that on the 6th of January, Mr. Reynolds removed some glasses from the table, as he went into decedent’s room; McKeon, he says, “ was intoxicated on the 6th of January,
Margaret Degan, whose maiden name was Gilroy, a second cousin of the decedent, saw him three times during his illness:
Mary Stubbs, the sister of the last witness, visited McKeon on Christmas Eve. She states that liquor was ordered three times in four hours—brandy for McKeon, and hot stuff for her and a companion; McKeon drank all of his, but she only tasted her glass; that he was intoxicated, but she was not.
This is about the sum of the direct evidence on the part of the contestants, in respect to the intemperate habits of the deceased during his sickness. It proceeds from one family, who agree that McKeon was intoxicated on every occasion but one, when they severally visited him; and yet, for the last month of his life, they show but two or three occasions when he drank in their presence. Nor does the intercourse between the decedent and these witnesses contain any intrinsic- evidence of inebriation. McKeon’s declarations that he was Reynold’s “ best customer,” that he had a bill against him “ as long as his arm,” he could not eat, “ he was drinking too much,” together with the other proofs in the case, doubtless lead to the conclusion that he was in the habit of drinking ; but I am not satisfied that either generally, or at the times mentioned by these witnesses, it was carried to the extent of intoxication.
Now let us look at the other side. The Rev. Mr. McAleer saw him on the 10th and 11th of November, and on the latter
Dr. O’Reilly attended the decedent, professionally, during his last sickness, six or seven visits. He defines the disease as debility, consequent upon old age, and chronic bronchitis. Except on two occasions, when he was asleep, he describes the state of his mind as “ clear,” and says, “ he was always a man of clear mind—he was a shrewd, clear, intelligent old man. He appeared to be a good deal above the sphere of life in which I found him.” * * “He was just as sound of mind the last visit I spoke with him, as he was before, as I ever knew him before. This might be about ten days before his death.” The physician testifies that he prescribed nourishment and wine for the decedent, three or four glasses in the twenty-four hours; that he never perceived any appearance of the effects of liquor, and McKeon never drank anything in his presence. Francis Reynolds testified that he saw the decedent once or twice a week, while he was sick; that he observed no change in his mind, and, though physically debilitated, “ he had his mind to the last.” He states that they sometimes drank together, McKeon taking wine, but not more than once on any single occasion. Mary Reynolds deposed, that she visited McKeon frequently, and “ never saw him in liquor after he was taken ill,” though she had observed him in that condition some time before. She stated that on the evening of the 6th of January, she took a glass of wine at Reynolds’ house, and gave McKeon a few teaspoonfuls from another glass. Sarah Honahan, who saw the decedent several times during his sickness, says, “ he talked as sensible when I saw him, as when I saw him first when he
I pass, in the next place, to the evidence of the subscribing witnesses, in relation to the circumstances attending the execution of the will. James Robinson, one of the parties who attested the will, states that, “ from the decedent’s manner and behavior,” he thought he was “ rational,” and he adds, “ there is no doubt at all upon my mind about that.” * * “I should suppose he was perfectly sober and sensible; he may have been under the influence of liquor, but I did not observe it.” It appears also from his statements, that on his entering the room, McKeon recognized him, although their acquaintance had been but slight; that, during the ceremony, the door of the room was closed, and Reynolds came in twice upon call, but left as soon as the object of his attendance was accomplished; that the decedent sat up in the bed, signed the will without assistance, and that whilst in the act of finishing his signature, the ink failing, he remarked, “ I tried to make a flourish, and could not;” and finally, on being told it was necessary to destroy the old will, he set fire to it himself, and it was destroyed.
Mr. Hart, who drew the will, testifies that he was called upon by Reynolds, the day the will was executed; at his request attended the decedent, drew the instrument in McKeon’s presence and pursuant to his instructions, and that
Such are the leading facts of the case, bearing upon the question of testamentary capacity, and it is obvious that there is no proof whatever detracting from the decedent’s general competency to make a valid disposition of his property. In consequence of his previous habits, his debility, and failing health, some degree of stimulus was indicated, medically, and was prescribed by the attending physician. But with the exception of three witnesses produced by the contestants, not one out of a large number of persons who visited him frequently during the course of his illness, including the physician and two clergymen, observed any marks of intoxication. There is not sufficient ground, therefore, to presume inebriation at the time of the factum of the will, nor to throw
It is proved that the decedent had executed a will some time previously, in which the Rev. Mr. McAleer was named executor. By this instrument his property was distributed among his relatives, except a legacy of $50 or $100 to Terence Reynolds, and $400 for the benefit of the poor in Ireland. On the 10th of November, 1854, he sent for the Rev. Mr. McAleer, who finding him unwell, advised him to go to the hospital. To this McKeon agreed, but the next day when his friend called with a carriage, according to arrangement, he was “ very unwell,” and declined going, but “ for fear he should die,” placed in the hands of the priest a box containing his will and bank books. Two or three weeks before this,
The Rev. Mr. O’Callaghan testified, that at first the decedent spoke to him “ about his affairs, and said they were in the hands of the Rev. Mr. McAleer.” He adds, “ about a week after, I believe, he said he wished to make a change or something of the sort. I suggested he ought to have it arranged immediately, I was desirous his mind should be at rest. I don’t remember any particular change he proposed. I never heard from him what he had, or how he intended to dispose of it. I think he once mentioned about making some compensation to Mr. Reynolds, if that were not in his former , will. He never said anything to me about his godson. I saw him afterwards, when his lawyer had been there in the mean time, and he told me it was all arranged—his worldly matters—I asked him if his mind was at rest, he told me yes, everything was arranged, the lawyer had been there.” Again, “ two or three visits subsequent (to the first) he said he wasn’t pleased with the first will, wished to make a change.” * * “ On the second or third visit, I asked him again about his affairs, and he said he wished to make some return to Mr. Reynolds, as far as I can remember * * the rest that was said during that interview was on spiritual affairs. He said that was the only thing annoying him, and I have some indistinct idea he said something of the ingratitude of a niece.”
Francis Reynolds states that McKeon, shortly before his death, speaking of Terence Reynolds, “ said he would leave that child something that would carry him through life, and