35 How. Pr. 336 | NY | 1867
By the Court.
[After stating the facts above.]—The bulk of the property, it is true, is given to the testator’s brother, and it may be conceded, that the will is a will inofficious, so far as regards his son. But if the son had been wholly disinherited (which he is not, but a moderate competency given to him), not in favor of the brother, hut of parties, strangers in blood -to the deceased, it would be no ground, of itself, for avoiding the instrument. The doctrine •of inofficious testaments, invoked from the civilians, has no place in our law. A man has a light to make whatever disposition of his property he chooses, however absurd- or unjust. If capacity, formal execution and volition appear, his will must stand. A “ disposing mind,” said Creswell, J., in Earl of Sefton v. Hopwood, 1 Fost. & F. 578, “ does not mean that he should make what other people think a reasonable will or a kind will, because, by the law of this country, he has absolute dominion over his own property, and if he, being in possession of his faculties, thinks fit to make a capricious, harsh or cruel will, you have no right to interfere; that would be to make his will for him, and not to allow him to make it.” “ The right of a testator to dispose of his estate,” said Porter, J., in delivering the -opinion of this court in Clapp v. Fullerton, 34 N. Y. 190, 196, “ depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capa
1. As to capacity. The evidence as to the general capacity of the deceased is but one way. The case is not a balanced one, or one where the evidence greatly preponderates on that subject. The deceased, as has been stated, had been actually engaged in lumbering in Virginia for over thirty years, and, according to all the the testimony, was an unusually shrewd and energetic business man. His mind was clear, vigorous, and strong. He was also a firm man, decided, self-reliant. A witness characterizes him (and this was the tenor of all the proof) as a man of “great capacity for business, remarkable for his firmness, self-reliance, and tenacity of purpose.” That clearness, solidity and strength, were the general mental characteristics evinced by him throughout inosc of his life, is not questioned by the appellant. "But it is insisted, that disease and intemperance, within the two years prior to his death, effected a change in his mental condition, and that when the will was made he was insane, or, if not properly insane, was imbecile. The suggestion, that insanity existed in any form, or that the testator’s mental faculties were perceptibly impaired at the time of the factum, is wholly unsustained by the proof. On the contrary, the proof establishes the fact, that, at that time, his mind was as vigorous and sound as it had ever been. The instrument was prepared by Lot C. Clark, Esq., for many years his legal adviser in relation to his affairs at the north. Mr. Clark was alone with him, in his room at his brother’s house, some'two or three hours, conversing in respect to his property; receiving his instructions; getting his exact views
The will, then, is, not impeachable on the ground of testamentary incapacity. There is no room to doubt that when it was executed, the testator was fully competent. Bodily disease may have abated soma of the former elasticity of his mind, but it was in no way diseased or even in an incipient state of decay.
2. There being capacity, was the will the free act of the decedent, or was it the result of undue influence, exercised by his brother, the principal beneficiary? This latter question-was not argued with any apparent confidence, by the appellant’s counsel, and I cannot well see how it could have been. Undue influence must be an influence exercised by coercion, imposition or fraud. It must not be such as arises from the influence of gratitude, affection or esteem, but it must be the ascendancy of another will over that of the testator, whose faculties have been so- impaired as to subject him to the controlling influence of force, imposition or fraud. Gardiner v. Gardiner, 34 N. Y. 162; Dean v. Negley, 41 Penn. 312; Small v. Small, 4 Greenl. 220; Trumbull v. Gibbons, 2 Zab. 117. Moreover, the exertion of the influence upon the very act must be proved, and it Will not be inferred from opportunity and interest. Carroll v. Norton, 3 Bradf. 291, 320; Clapp v. Fullerton, 34 N. Y. 190. I can discover nothing in the record that brings the case within the rules. The circumstances anterior to and attending the execution of the instrument are inconsistent with any other hypothesis than that it was the product of the decedent’s own will, and not of the force, fraud or undue influence of any other. The fact is unquestioned that he was a man of more than ordinary vigor of intellect, of great firmness, self-reliance and tenacity of purpose, and it is clear from the evidence, that he retained his unusual powers of mind down to the period of making the will. He was not, therefore, in a condition to be exposed to undue influences. But the case is barren of evidence of any direct influence—much less that improper influence which will vitiate a testamentary act
In view of this state of facts, there is no ground for alleging that the decedent, in publishing the instrument and dictating its contents, was not acting of his own free, uninfluenced will and wishes.
There is much evidence in the case of matters transpiring at
I am of the opinion that the questions of fact involved were rightly decided by the surrogate, and that the judgment should be affirmed.
A majority of the judges concurred.
Judgment affirmed, costs to be paid out of the estate.