78 N.Y.S. 1001 | N.Y. App. Div. | 1902
The action was brought to determine the validity of the will of plaintiff’s brother, F. Stanhope Phillips, who died January 12, igoi. The will was dated September 24, 1900, and was admitted to probate on April 8, 1901. It gives to his wife, the defendant, Martha B. Phillips, all his estate, real and personal, and appoints her his sole executrix. The questions for our determination are whether or not, upon the evidence given at the trial, the plaintiff had the right to go to the jury on the subjects of testamentary capacity, undue influence, and proper execution of the will. Section 2653a of the Code of Civil Procedure provides that “the issue as to the validity of a will shall be tried by a jury”; and in construing this section it was held in Dobie v. Armstrong, 160 N. Y. 584, 55 N. E. 302, that, whether evidence was sufficient to warrant the submission of any of these questions to the jury, is a question of law for the court, the opinion stating that:
“The trial court was not required to submit the question of the testator’s mental capacity to the jury merely because some evidence had been introduced by the party bearing the burden of proof. The legislature never could have intended, and the statute does not compel the construction, that courts should hold that every ease which is brought under section 2653a of the Code must be submitted to the arbitrament of the jury. * * * Their verdict should proceed upon such evidence as would warrant the court, in its review of the facts, in holding that it actually tended to prove such mental unsoundness in the testator.”
The opinion concludes with this language:
“Such cases are fraught with the gravest consequences, and I do not believe that a solemn testamentary disposition of property should be left to the decision of a jury upon mere surmise, or upon inferences from facts which are as consistent with the one view as with the other.”
And the conclusion reached in that case was that the evidence produced by the contestant “was not of a nature that the jury could have properly proceeded to find a verdict upon it in his behalf, and, further, that, if such a verdict had been rendered, it could hot have stood the test of a motion addressed to the court to set it aside.” The force of this last statement has been destroyed by the later case of McDonald v. Railway Co., 167 N. Y. 66, 60 N. E. 282, wherein-it was held, as correctly stated in the syllabus, that:
“Tbe court cannot, in every case where the right of trial by jury exists, and the evidence presents an actual issue of fact, properly direct a verdict. If, in such a case, it is dissatisfied with the verdict against the weight or preponderance of evidence, it may be set aside; but a new trial must be granted before another jury, and the direction of a verdict under such circumstances is reversible error.”
Upon the law as now authoritatively laid down by the court of appeals, therefore, a verdict cannot be directed for a plaintiff or defendant, no matter how great the weight or preponderance of evidence may be in his favor, where, on the other side, evidence has been given which presents an issue of fact, and upon which the jury could properly proceed to find a verdict. With this rule in mind, we have examined the voluminous record presented on this appeal bearing upon the various grounds upon which the plaintiff assails the validity of his brother’s will, and for the reason that upon the subjects
“Ordinarily, the burden of proof is upon the party propounding the will; hut section 2053a of the Code of Civil Procedure, which is the authority for the maintenance of this action, places the burden upon the defendants who contest the validity of the will of establishing the testamentary incapacity of the testator. The probate of the will by the surrogate is made prima facie evidence of its due execution and validity.”
The burden at the outset of the trial rested, therefore, upon the plaintiff of meeting the legal presumption in favor of the will arising from its probate; and to what extent he was successful we will briefly refer. The plaintiff produced three medical experts, upon whose testimony he relies as presenting a prima facie case showing testamentary incapacity, one of whom alone (Dr. Dana) had ever seen the testator, and he had seen him only during the latter part of November and the first of December, 1897 (some three years prior to his death and the making of his will), when, from the symptoms he then observed of the man’s condition, he diagnosed his illness as the initial stage of paresis. Upon the conclusion thus formed by him that the testator at that time was suffering from incipient paresis, as a foundation, were built up hypothetical questions propounded to the other two experts, and upon which alone were based their opinions of his incapacity when the will was executed in September, 1900. The plaintiff’s case, therefore, rests entirely upon the opinions of the experts, and the force and weight to be given to them must necessarily depend upon the truth or falsity of the facts embodied in the hypothetical questions upon which such opinions are founded. If it was demonstrated at the close of the evidence — as on this record we think it was — that the diagnosis in 1897 that the testator was then in the initial stage of paresis was erroneous, and if there was no sufficient evidence upon which the jury could find that it was true, and if, in addition, we find that assumptions were included in the hypothetical questions which had no basis in fact, then, clearly, as the plaintiff’s case rests alone upon the answers to these hypothetical questions, there was not sufficient evidence upon the issue involved requiring its submission to the jury. As said by Judge Finch in Griswold v. Railroad Co., 115 N. Y. 64, 21 N. E. 726, 12 Am. St. Rep. 775:"
“Medicine is very far from being an exact science. At the best, its diagnosis is little more than a guess enlightened by experience. * * * And the wisest physician can do no more than form an opinion based upon a reasonable probability.”
Attaching, however, to the diagnosis here involved such weight as it is entitled to in the first instance as a diagnosis or a guess as to
“Mr. Phillips, three years after the diagnosis of general paresis, should '"save exhibited certain physical signs, — certain signs of the body. He should saaturally have had some interference with his speech, — his articulation. It should have been upon the spanning order. He might have elided syllables -or final letters of words here and there. He Should have had certain irregularities of the pupils. He should have had a slight paresis of the corners >a£ the mouth. He should have had a certain interference with his reflexes. SHis handwriting should, had he followed the average course of a general rearetic, shown certain characteristic changes. His mental condition should Slave been apparent by a variety of manifestations. He should have exhibited ithe changeable and fitful delusions which the general paretic is filled with. He should have had the emotional conditions characteristic of that disease. He should have had the flickering and unstable attention which is indicative ■of that disease; and, had he passed on to what is known as the second stage, when there is a still greater degradation of the mental organism, he should •Save been approaching or giving indications of the course of the disease toward dementia, in which he was practically irresponsible.”
The doctor further added that, if paresis existed, and cancer subsequently developed, it would not aid the recovery from paresis; and She admitted that paresis is one of the most dramatic and easily recognized forms of insanity in its outspoken stages. Dr. Dana, recalled, testified, referring to his diagnosis, that, if there were never any -symptoms after that, it would, of course, be affected, and he should consider he had made a mistake; and that, assuming that Mr. Phillips showed during the last months of his life no mental lethargy, •or stupor, or lack of mental concentration, or interference with the train of thought, or failure of memory, and that there was continuity in his thought, that he had a good memory on various subjects, and impressed those with whom he talked as rational, that would ■snake a difference in his opinion, and he should consider him sane.
It appears, therefore, without contradiction, from the testimony cf every physician or other person who was in a position to observe She testator during the three years prior to his death, that the development of the ailment from which he suffered, and the causes •which brought about his death, were inconsistent with the diagnosis made in 1897 that he had incipient paresis, or the theory that he subsequently suffered from any such disease; and it will be further no