45 Barb. 86 | N.Y. Sup. Ct. | 1865
This is an appeal from the decree of the surrogate of Clinton county, denying probate of .the will of James Pilling, deceased.
All the requisite formalities in the execution of the will were observed, and it was refused probate on the ground, solely, that the testator at the time of its publication was not of sound and disposing mind and memory and was therefore incompetent to make a last will and testament.
The instrument offered for probate was executed on the 11th January, 1862, in the presence of four persons, three of whom signed as witnesses ; and by its terms made disposition of property, real and personal, amounting to about forty thousand dollars. The. deceased died July 1, 1863, aged about seventy-five or seventy-six years. It seems that he had an attack of paralysis, or “partial paralysis,” a few weeks prior to the' execution of the will, and his health was somewhat disturbed for a long time by a general constipa
The persons who witnessed the will had known the deceased for many years, and were well acquainted with him. They regarded him as of sound mind and- memory, at that time. Mr. J. D. Kingsland, one of the witnesses, states that he had been well acquainted with Mr. Pilling for thirty or forty years, and they were as intimate as two men well could be, and that he had had business transactions with him, more or less, for over twenty years. Mr. Cleaves, another of the witnesses to the instrument, says that he had known him for ten years and' saw him quite frequently during the last three years of his life. These, with the third witness, Mr. Scribner, and also Mr. Ames who drew the will, and Mr. Hewitt who was present and heard him direct its terms and provisions, all deemed him of sound and disposing mind and memory, and- on their examination before the surrogate declared their opinion to that effect.
It appears, also, that the deceased had long contemplated the making of a will, and had selected Mr. Ames as the one he wished to draft it. This purpose he had repeatedly expressed, and he had, too, avowed his intention, in a general way corresponding with the terms and conditions as they now appear in the instrument. After it was executed he made allusion to the fact, showing a recollection of what he, had done.
His directions to Mr. Ames, as stated by the latter, were given specifically, clearly and understandingly. He had previously made an appointment with Mr. Ames for the purpose, stated his general design to fix his property so that his sons could not use it up, and with deliberation and careful thought dictated the terms and conditions of the instrument. ■ It was
On this point it may be well to see how the statements of these witnesses stand on the record. Mr. Kingsland says the instrument was carefully read over to the deceased, and he was ’ especialy interrogated by Mr. Ames, in reference to all the legacies, bequests and particulars contained therein; that he was particular to inquire in relation to the effect of every part of the instrument he did not fully understand, and after the same and the entire contents seemed by him to be fully understood, he signed it. The witness adds: “ The reason why I became certain that he knew the instrument as his will was because every part of it was fully considered by him in my presence, and after such consideration he signed it.” Again: “ He seemed fully to understand what he wanted the instrument to contain, and when any of its provisions were read over that he did not fully comprehend at first reading, such provisions were read over to him, and he expressed himself satisfied with the instrument, when he signed it.” Mr. Cleaves says : “ The will was read over to him in my presence particularly. He seemed to understand it—the different parts of it. He made some expressions as to different parts of it. I think he requested one clause to be read the second time-.” Mr. Ames states particularly the circumstances under which the paper was prepared, the general purpose of the deceased as expressed by him, his particular dictation of all its parts, his discussion of its provisions and its deliberate consideration and execution. In all this he is corroborated by Mr. Hewitt. So, Mr. Scribner, while he thought him a little forgetful, says he made comments when the will was being read over, in regard to its contents, and finally expressed himself to the effect that the will contained the best 'that' he could do. ■
These witnesses speak of the circumstances attending the
Other witnesses give general evidence tending to show a retention of capacity and mental vigor. Mr. Edmund Kings-land, Mr. Whitney, Mr. Tomlinson, Mr. Payne, Mr. Thomas M. Hustis, Mr. Page, and some others, frequently saw him, conversed with him, and many of them had business transactions with him during the latter ■ period of his life. They all speak of him as possessing his usual faculties and powers of mind, except perhaps, as some expressed it, he seemed at times a little forgetful. The purport and strength of their evidence is to the effect that he was 'capable of making a valid will. According to their evidence his mental faculties could not have been seriously disordered or impaired, certainly not to an extent to render him incapable of reasoning upon matters requiring the exercise of prudence, discretion and judgment; or incompetent to judge correctly of surrounding circumstances. Is the case made by the proponent met and overcome by the contestants ? Doctor Weston testifies that he had been well acquainted with the deceased for upwards of twenty years, and was his family physician. He attended him before and at the time the will "was executed. He says he was not possessed of his usual vigor of
This is the substance of the evidence on the part of the contestants. In my judgment it fails to overcome the case made by the proponent in favor of the mental capacity of the deceased. There is a strong .preponderance of evidence in favor of the position that he, at the time the will was executed, possessed capacity and' understanding sufficient to
In my judgment the decision of the surrogate was clearly against the evidence, and the decree refusing probate of the will should ,be reversed.
The next question is whether a feigned issue should be awarded to try the question of fact in regard to the mental capacity of the testator, at the time of making the will; or whether this court should now direct such judgment and decree as the surrogate should have made when the case was before him.
Prior to the judiciary act of 1847, appeals from orders of the surrogate admitting or denying probate of wills were
In the case under consideration, we are of the opinion, most clearly, that the deceased was competent to make the will presented for -probate. We'think the evidence before us quite conclusive of this question. Nor do we deem it at all probable, after a very careful examination and consideration of the whole case, that the contestants, on a retrial before the surrogate or before a jury, could establish the allegation that the instrument offered for probate was invalid' as a will, by reason of the testator’s imbecility and incompetency.
We must therefore order a reversal of the decree appealed from, and direct, as was done in Coffin v. Coffin, (23 N. Y. Rep. 9,) that the will stand as a valid instrument, and that the surrogate of Clinton county admit the same to probate and enter it of record, and issue letters testamentary thereon.
All the costs in the case, from tire first, should be paid from
the estate, except that the respondents, and contestants, George Pilling-, Henry Pilling and Bichard Pilling, should have no costs of the appeal.
Judgment accordingly. ,
Bockes, James and Rosekrans, Justices.]