6 Dem. Sur. 244 | N.Y. Sur. Ct. | 1888
This is a motion to dismiss the proceedings of the proponents, for failure to prove the mental competency of the alleged testatrix. The motion was first made at the close of proponents’ case, and was denied off-hand, without examination of the testimony given on the hearing, and with the expectation that the production of witnesses on both sides would follow; but the fact that counsel appeared between the time of the informal argument and the day fixed for taking testimony, and requested that further arguments be heard and that briefs might be submitted, leads me to infer that the parties wish the whole matter disposed of by the decision of this motion.
, The proponents’ position on the motion is, that they are only required, in the first instance, to prove the formal execution of the will, and that, such proof being made, a legal presumption of the sanity of the testator then arises, on which proponents may safely rest until the contestants have given evidence tending to show the insanity of such testator; to which evidence the proponents may then oppose such evidence as they may have, in support of decedent’s soundness of mind. The contestants insist that this position is
This precise point has seldom been discussed in the reported decisions of this State. The usual practice in will contests, involving the sanity of the testator, in our Surrogates’ courts, is for the proponent to prove the formal execution of the will, and to show prima facie, by the attesting witnesses, the decedent’s age, mental competency, and freedom from restraint. The contestant then offers his evidence in support of his allegations of unsoundness of mind, and the proponent closes with testimony' in reply, and in support of the allegations which he is bound to maintain. On the whole issue, made as just stated, the, courts of this State have frequently declared that the burden of proving a decedent’s unsoundness of mind is on him who asserts the existence of that unnatural condition. This doctrine is formulated in Delafield v. Parish (25 N. Y., 97), and has been often reiterated by all of our courts.
It must be observed, however, that this is a very different question from the one here presented; for the contestants have as yet offered no testimony, and maintain that the proponents must fail for the lack of proof of a material fact. This distinction is clearly drawn, in the opinion of the General Term of the Third
Again, in Miller v. White (5 Redf., 321), it is said : “ The burden of proving unsoundness of mind is on the contestant, but it is expected of the party offering a will for probate that he will examine the subscribing witnesses as to the condition of the testator’s mind.” In the Matter of Cottrell (95 N. Y., 336), the Court of Appeals say: “ The proponent has the affirmative of the issue, and if he fails to convince the trial court, by satisfactory evidence, that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will.” In the only recent work on Surrogate’s Practice in this State (Redf. Surr. Prac., 3d ed., 216), the matter is put as follows: “ On the question of probate, the orderly and proper course for the introduction of evidence is, first, to prove the requisite formalities attending the execution, publication and attestation of the will, and then show that the testator was, at the time, of the proper age and mental soundness, and was not unduly influenced in the testamentary act.” The necessity for observing this order of proof is now emphasized by the provisions of the Code of Civil Procedure, §§ 2622, 2623. As to the former, Surrogate Rollins says, in Cooper v. Benedict (3 Dem., 136), that it has lent a new sanction to the doctrine, enunciated in Delafield v. Parish (supra), that the proponent of a will must prove to the satisfaction of the court that the supposed testator, at the time of the execution of the alleged will, was of sound and disposing mind and memory.
The same principle has been laid down in numerous cases, decided by the courts of last resort, in many other leading States of the Union (Brooks v. Barrett, 7 Pick., 94, 98; Crowninshield v. Crowninshield, 2 Gray, 524, 532; Gerrish v. Nason, 22 Me., 438, 441; Perkins v. Perkins, 39 N. H, 168; Taff v. Hosmer, 14 Mich., 309; Aikin v. Weckerly, 19 Mich., 482, 502, 503; Comstock v. Hadlyme, 8 Conn., 261; Renn v. Samos, 33 Texas, 760; Williams v. Robinson, 42 Vt., 658).
I conclude, therefore, that the law is that the proponents, in addition to proof of the due execution of the will, must show affirmatively, before resting their case, that the testator was of sound mind and free
In the present proceeding, after a careful examination of the testimony given by the single witness examined, I cannot say that I am satisfied as to the competency of the decedent at the time of the alleged testamentary act. It is true that the witness says that Mrs. Bamsdell conversed intelligently, and understood the contents of the instrument, and the nature of the transaction, but he says further that he did not think her mind was sound. He says: “ Her natural affections seemed to be perverted. Instead of having that feeling of kindness and consideration for her children that a mother would naturally have, she seemed indifferent to them and to dislike them. Her natural affections were blunted. She seemed to have no conception of the fact that she was owing certain duties to those children, or that they were objects of her bounty. That conclusion I arrived at, after talking with Mrs. Bamsdell for an hour. Our conversation left the impression on my mind that her mind was not right. She didn’t seem to comprehend the proper objects of her bounty. A portion of her conversation impressed me as rational and a portion as irrational.”