9 Abb. N. Cas. 326 | N.Y. Sur. Ct. | 1879
The contest in this case covers
John Hancock emigrated to this country from Manchester, in England, about the year 1842, and settled in the city of Hew York. He was at the time married, and left his wife Mary Hancock in England, as difficulties existed between them which probably induced his removal to this country. He, however, provided her there with a home and livelihood for some time. The following year, without his knowledge, consent, or invitation, she also came to Hew York and boarded with a Mrs. Walsh, a sister of Hancock’s ; and after remaining about a year, returned to England, where she remained until her death, which took place in 1876. In all his subsequent life he never voluntarily spoke of his wife or marital relations, as they seemed unpleasant and distasteful to him, and he was always reticent upon the subject in presence of his most intimate friends, and annoyed when referred to. Soon after he came to Hew York .lie engaged in mercantile pursuits, as a
From the time of his retirement from business, and during the balance of his life, he devoted himself to the care and increase of his property, and his chief pleasure seemed to be in assisting those whom he loved and respected, and his chief solicitude as to the final disposition of his estate. He was a moral man, polite, and considerate of his associates and companions, social and friendly in his intercourse and habits, and, withal, a provident and prudent man. This is the estimate of his character, fairly deduced from the proofs on the trial in respect to him personally, and this character he maintained until advancing years, with their attendant disabilities, produced their effect upon not only his health, but upon his mind and disposition.. His solicitude as to the distribution and disposition of his property and estate manifested itself in a desire to carry out his plans and wishes in respect to it, and safely secure it to those who might be the designated objects of his bounty by some valid instrument of disposition which would withstand any attack. In pursuance of this desire he consulted many lawyers and retained them to draw wills. As early as 1865, Mr. Delavan, one of the counsel in this case, swears that he drew a will, and subsequently many—a dozen or more—were drawn by different counsel, some of which were executed and some not. In the language of a former legal adviser, “He had a mania for making wills.”
On November 16,1869, while residing at Orange,- New Jersey, he executed a will in the city of New York, drawn by Judge Hull. In 1873, the judge swears that he drew another will, but whether executed by Mr. Hancock he could not remember. On January 2, 1874, while still residing at Orange, he executed a-will, drawn by his then legal adviser, Mr. James W. Field, a lawyer of that place; and on January 30, 1874, he executed a codicil to the will, drawn by the same counsel. On April 14, 1874, while at the house of John Swenarton, at Clarkstown, New York, he executed another and second codicil to this will, and while at the same place on July 1, 1874, he executed another and third codicil thereto, both of which were drawn by Mr. Walter H. Shupe, a lawyer, who resided a few miles distant from the residence of Mr. Swenarton, in the adjoining town of Ramapo. On September 10, 1874, while still at the residence of Mr. Swenarton, at Clarkstown, New York; he executed two powers, and what is called a letter of instructions, to said John Swenarton, which papers were also drawn by Mr. Shupe, as well as some assignments of stock. During the time he was at Mr. Swenarton’s he - caused to be drawn assignments of mortgages by a lawyer named Hopper and by Mr. Shupe to Mr. Swenarton and others. These papers comprise the wills, codicils and documents relating to the disposition of his estate and property, which were involved in the matter before the court. John Hancock died at the residence of John Swenarton, in Clarkstown, New York, on September 12,1874, in the seventy-fifth year of his age.
The provisions of the will of 1869, drawn by Judge Hull, which was produced and proved on the trial, and marked as an exhibit, and of the will of 1873, which was not produced, but its contents, generally stated, were substantially the same as those in the will of 1874, now before the court; and it is noticeable that the intention of the testator as to the beneficiaries thereunder and the general character and amount of the legacies to them was so little changed, and so uniformly preserved, and that the testimony of various witnesses on the trial, as to declarations of the testator in respect to those who should become the objects of his bounty, proves many of them to be the same as legatees mentioned in the wills.
In the latter part of March, 1874, Mrs. Hannah Thacher, with whom Mr. Hancock boarded at Orange, N. J., broke up house-keeping with the intention of removing to California, whither, in the following summer, she went to reside with her children who had settled in that State. Mr. Hancock then arranged to live with Mrs. Ryder, a sister of Mrs. Thacher, and while his rooms were being prepared went to visit Maria Hancock and Jane Swenarton, his sisters, at the house of John Swenarton, at Clarkstown, N. Y., as was his usual custom in the spring of the year. He remained at Clarkstown during the summer, and while a member of the Swenarton family he executed the second and third codicils to his will of January 2, 1874.
By these instruments radical and extensive changes and alterations were made in his will.
The first revoked the legacies to Alexander Stewart Walsh and James M. Allen, of $5,000 each and their appointments as executors, and also that to Charles
In the third codicil to his will, dated July 1, 1874, and executed on that day, he revoked the legacies, in the will, of Hannah Thacher and Josephine Thacher Lindsley, $5,000 each, and also the legacy to the Protestant Orphan Asylum, of Orange, N. J., of $2,000, bequeathed, to them in his said will, and directed that the sums mentioned, and so revoked, should be included in, and distributed as a remainder or part of this residuary estate. Walter H. Shape, Peter S. Van Orden, Elbert, Clement, are the subscribing witnesses to both of the last-mentioned codicils.
The powers of attorney and letter of instruction hereinbefore referred to, were severally executed by the testator to John Swenarton, his brother-in-law, at his house in Clarkstown, on September 10 following;
These papers were drawn by Mr. Simpé, and witnessed by him and David Benson, and were called for, produced and put in evidence by the, contestants. The powers and trusts conferred upon, and committed to the attorney by these instruments, were never exercised or executed by him, except so far as on the day of their execution; and in pursuance of the authority therein granted, Mr. Swenarton called upon the bankers of Mr. Hancock in New York city, and demanded the payment of a large sum of money on deposit with them, and standing to the credit of Mr. Hancock on their books. They, however, refused to comply with the demand, and did not pay the money, as there appeared some informality or omission in their execution ; but before the omission could be supplied, and pending Swenarton’s renewed application on September 12, Mr. Hancock died at his house while he was absent on this business. Had Mr. Hancock lived a sufficient time, and his attorney exercised the full measure of his functions and power as such, the ten years’ previous solicitude of Mr. Hancock might have been saved to him as to the distribution of his estate, (to those to whom he willed it) by his executors, for it was practically and actually at his disposal to do with it as to him might seem best with the bulk of the estate. Death came upon the principal, and authority of the agent fell unused.
The case proceeded on the motion of proponent, and two of the subscribing witnesses to the will were sworn and examined—Philip Kingsley and Augustus
Kingsley testified.-that he resided at the time of the execution of the instrument at Orange, New Jersey, and was a student in the law office of Mr. Field, who drew it; that he first saw-the testator about two weeks before that time, and several times intermediate, when he called at the office, but never had any transaction or conversation with him ; that he saw John Hancock sign the will in the presence of Mr. Field and Mr. Kissam, and that Mr. Field asked him if he declared it to be his last will and testament, and if he requested the three witnesses to witness it, and he said yes, according to his best recollection ; and then they signed the will, as witnesses in the order named on the will. On the subject of mental competency of the testator he wus asked, “What wms the intellectual and mental condition of the testator at that time?” And he answered, “Why, he seemed to be in possession of all his faculties ; he w-as an old man, but didn’t seem to be feeble-minded at all.” He further swore that he had only seen testator write when he signed the will, and never transacted any business with him.
Kissam testified that he resided at Huntington, Long Island, and was at Orange on the day of the execution of the wall, visiting Mr. Field, his uncle; that he saw testator sign the wall in the office of Mr. Field, who, with Mr. Kingsley, were present on the occasion ; that he was asked by Mr. Field if that wras his last will and testament, and he answered, it wras ; he was also asked by Mr. Field if he washed him, Philip Kingsley and myself, to sign as witnesses, and he said yes ; and they signed as witnesses. The following question was then asked: “What was the condition of John Hancock on that day as to his soundness of mind and ability to do business ?” And the witness answered, “ He .seemed perfectly sound and
The act of making a testamentary disposition of property is usually one of great concern, deliberation and care, and the party naturally avails himself of every safeguard which the law has wisely provided to defeat such purpose by any whose interests and avarice might lead to the attempt. The testator usually calls about him reliable friends in whom he has entire confidence, so that his act of making a valid disposition of his estate may be protected, and he have the assurance when the instrument is subjected to the ordeal of the probate court, that they will bear testimony to the fulfillment of the requirements of the law in its execution, and to the competency of the testator, and he and his estate be protected from imposition, circumvention and fraud, and it receive the seals of approval, and operation given to its provisions. Such is the object of a judicious selection of persons, and such the office of a subscribing witness. It is true the law clothes him with the prerogative and privilege of'speaking of the mental condition and testamentary capacity of the testator, and receives his statements as opinions, excepting him from the rule which requires witnesses to testify to the facts in that particular as well as in every other, upon which their opinions may be based, so that the court can determine their value as evidence; still, the opinions of subscribing witnesses are not controlling, but estimated according to the means possessed for their formation. It is to be observed that the subscribing witnesses who were put upon the
The witness, bping cross-examined, testified as follows : Q. “ When did you first see testator ? A. I had ' never seen testator until that day. . Q. Have you ever had any conversation with him since that occasion? A. No. Q. Did you have any conversation with him on that occasion ? A. No. Q. Then he made no request of you at that time? A. No; not in so many words. Q. Did he ask you to become a subscribing witness to his will? A. No.' Q. Did he make any declaration to you that day in any form? A. No. Q. Did he ask you to become a subscribing witness to any codicil to his will? A- No; only as he did it through Mr. Field. Q. How long did you see testator on that occasion? A. About five minutes. Q. Was ■that all the opportunity you had 'to judge of his ■testamentary capacity ? A. It was.”
The above is the whole of thé testimony given by the witness, James W. Field; the other'subscribing witness was not called by the proponent, nor did lie testify to the execution of the codicil.
The codicil relates entirely to personal estate, and contains two bequests. The requirements of the statute are explicit, plain and mandatory. Two, at least, of the witnesses to the codicil to be proved, shall be pro- ■ duced and examined, each of whom must testify to each and every of the statute requirements prescribed for the due execution of the codicil; and that the testator was' at the time of sound mind, memory and understanding in the language of the law. In the case of a will offered for probate without contest or opposition even, and though there be a liberal presumption in favor of due execution, still the authority to admit it does not rest in the discretion of the court,' however
Pending the cross-examination of James W. Field, on March 11, 1875, a witness called and sworn for the contestants, and when he was asked if the will was executed in his presence and he answered it was, one of the contestants’ counsel admitted the formal execution of the will and first codicil thereto ; and that the signature of James W. Field, to each of those instruments is in the handwriting of Mr. Field, the witness, and weré made by him.
A surrogate court is now denominated a court of record, and is of original jurisdiction; but its jurisdiction is derived from and regulated and restricted by the statutes of the state, and hence has been defined to be a court of special and limited jurisdiction. It has the power to take proof of, and admit to probate wills but the manner of taking the proof, and the extent and quality of it, is prescribed by the law conferring the power. Can, then, the legal and statute directions and requirements, or any of them, be dispensed with? And the proof be furnished ? (of the fullest and most
The codicils, respectively dated April 14 and Jnly 1, were each executed by the testator, and witnessed at the time of their execution by Walter H. Shupe, Peter S. Van Orden, and Elbert Clement, the subscribing witnesses thereto. Each of them was produced, sworn and examined in the trial, and each testified to the signing of both codicils by the testator at their respective dates, in their presence, at the residence of John Swenarton, in Clarks town ; to the publication of each instrument as a codicil to his last will and testa
At this point in the progress of the case the controversy turned to an investigation touching the character, habits, temperament, disposition, physical dis
From the proofs it appeared that Mr: Hancock, about the year 1850, formed the acquaintance of a Mrs;. Hannah Thacher, a widow with two children a son Henry and a daughter Josephine, who resided in Brooklyn, and their relations were from the cpmr men cement of their acquaintance of the most friendly character, and in the course of time a strong friendship grew up between them, and between him and, her children. In 1856 he took her son Henry, then a lad, into his employment in his store, where he remained until his death in 1867, a period of eleven years, filling with great acceptance the various positions of messenger, ■ clerk, bookkeeper and cashier. In 1852 or 1863 Mr. Hancock became a boarder in Mrs. Thacher’s family in Brooklyn, where she was keeping a boarding-house, and continued to board with her until 1868,' when, she removed to Orange, N. J., and engaged in ■the.same business, where he went with her and remained until he made a trip for health and recreation to Europe, accompanied by his nephew, Rev. Alexander Stewart Walsh,, as a traveling companion, and on ■his re.t-urn in 1870, resumed his home with her and remained until the spring of 1874, except for about a year,, when she gave, up housekeeping preparatory to •her -going to California to join her children and reside •with them there. When Mrs. Thacher gave up. her house at Orange, Mr. Hancock determined to take up •his home with Mrs. .Ryder, a sister of Mrs. Thacker’s, also residing at Orange, and accordingly made arrangements with- her for rooms, which were fitted up, painted and generally prepared as he directed, and into •which lie.ordered, his furniture placed, which, was then
John Bell Locke has remained throughout all the changes apparently his trusted friend, and withstood every test to which his fidelity was subjected, whether as companion, executor or friend, and he alone stands as one of the executors of all his wills. From the beginning of his residence in this country he appears to have known Mr. Swenarton, and was his brother-in-law ; as early as 1845 he was an inmate of his family, and in his serious and protracted illness from spinal disease about that time, a recipient of his and his sister’s attention and care. He was, after that, and habitually, a visitor at his house at Harlem, at Plain-field and at Nanuet. There never appeared any serious interruption in their family relations, and he always expressed pleasure in the society of his sisters, Mrs. Swenarton and Maria Hancock ; Mr. Hancock, in his will of 1869, gave him a legacy of $5,000, his wife a legacy of $3,000, and to one of his sons $6,000, and to the other $2,000 ; and in the will and first codicil of 1874, legacies amounting to $20,000 in value and upwards to him and the members of his family ; besides loaning him and them money to large amounts, and without security, except their notes. These seem to be substantial testimonies of regard if not of affection. When in business he took the sons of Mr. Swenarton into his store, gave them positions of emolument and honor, and intended to make them his successors ; and when little jealousies sprung up, as they are apt to, at his attentions and liberality to young Walsh, and complaints were made, they never seriously disturbed his
After the illness which prostrated Mr. Hancock, in or about 1845, and confined him to his house and room for about a year, he had a spinal affection or disease, and until about 1866 there is no evidence that he was to any degree disabled; during that year his health became impaired, and he never after entirely regained it; he sought the counsel and care of eminent physicians, and among others Dr. William Parker, of New York; he manifested symptoms of apoplexy and had a slight attack, after which he became feeble, and apprehending that he might die, proceeded to close up his business and “set his house in order.” From that time on to 1872, the evidence shows that the diseases with which he was afflicted were gradually and certainly doing their work upon both his physical and mental or nervous system; diabetes was upon him and paralysis was threatened; he lost flesh, he had difficulty in walking, his memory began to fail, he sought the sympathy and grave attention of his friends, and those about; he went to the seashore and required and employed a nurse, and gave every evidence of decaying powers and waning energies. Dr. Pierson, an eminent physician of New Jersey, who. was sworn as a witness, furnishes the first reliable account of his condition. He attended him in 1872 and 1873, at Orange, N. J., where both then resided, and says that his disease was diabetes, and from its ravages and effects he was incapacitated for any considerable exertion, and became too feeble to walk a mile. He had a stroke of paralysis, which was the second one within three years ; in both these diseases the brain is more or less involved, and Mr. Hancock shared the common fate of all similarly affected, in the loss of memory, in an easily influenced disposition, in a weakened will and in the growth of unaccountable mental idiosyn
The real and serious difficulty affecting the mind and testamentary competency of Mr. Hancock followed the paralytic stroke which he had in February, 1874, as an effect during the remainder of his life, and from which his system never fully rallied. When he went to reside at John Swenarton’s at Nanuet, the testimony shows him to have been in a condition which rendered him peculiar^ susceptible to the influence and control of those about him. He was not a person at that time of unsound mind, according to the opinion of experienced and competent physicians, but his mind and memory were much impaired, his will force lessened, his temper irritable, and his nervous power far below normal condition and healthy life. It was plain to the observation of all who knew and were about this time brought in contact with Mr. Hancock, that the powers, not only of his body but of his mind, were failing; for even Mr. Swenarton himself declared John Hancock is losing his mind, he forgets everything that he does, and I have to watch him when I am with him to keep him from paying bills twice. It was in this condition the testimony proves him to have been when Walsh took him to Swenarton’s and left him there, on March 27,1874, and between' that day and the sixth day of April following, the box or trunk containing his will, securities and valuable papers with his safe were taken -there from Walsh’s house and placed in the keeping and under the control of John Swenarton. There can be no doubt about it, for he swears himself that the box was put by-; himself in the safe, that it was not
Mr. Swenarton, in testifying to the condition of Mr. Hancock, during the last month of his life,-and when in the last stages of disease, said that he had two large boils on his abdomen ; sores between his thighs apd the scrotum; the scrotum greatly swollen ; two sores on the back of his leg, and one of them two inches in diameter, and the other about one inch, and that he complained of pain at the least touch; and it was while
Dr. Smith, of Spring Valley, an old and apparently experienced physician, and the last who attended Mr. Hancock, thought him, when he last visited him professionally, about September 1, on the verge on paralysis, but he declined to give any opinion as to his mental condition, though he was rational. He supposed Mr. Hancock died of partial paralysis.
Dr. Challes Corey expressed the opinion, on the diagnosis of Dr. Pierson, and the- other testimony in the case touching his physical and mental condition up to April, 1874, that at that time he was of unsound mind, and that he was incompetent to make a will, as he was in the condition of senile dementia,, from which
If this court were to answer the question propounded by the proponents’ counsel on the argument, whether the testator was, within the meaning of the law, at the timé of the execution1 of the codicils of April and duly,
It has been decided, and the true test of testamentary capacity is, the competency of the testator to understand and comprehend the act in its relation to his .property and to the objects of his bounty; in other words, competency to execute a valid will does not exist unless the testator has reason and understanding sufficient to comprehend such an act.
Mr. Shupe detailed with great force and perspicuity all that took place between him and the testator when he received instructions to draw the codicils in question, as well as his acts and language on their execution, and that, together with the testimony of the other attesting witnesses, which the court must credit, brings the factum, within the legal rule.
But the other and remaining question, whether these codicils were procured from him by undue influence exerted upon him by others—whether of fraud, imposition or coercion—is more difficult to determine and answer. Taking the theory of the proponents, as evidenced on the trial, Mr. Hancock, at the time of the
A strong pecuniary motive, says Judge Davies, in the Parish case,
Extreme avarice almost invariably overreaches itself, for there is no passion which more often defeats its purpose and deprives itself of its object, nor on which the present exercises so much power to the prejudice of the future. Avarice has been said to be the grand sepulchre of all other passions, as they successively decay; but unlike other tombs it is enlarged by repletion and strengthened by age. The changes effected in the will of John Hancock by the codicils under consideration are in contravention of his oft-declared intentions and purposes as to the disposition of his estate, and the beneficiaries under it, made long prior to the execution of any will, and carried out when he made and executed both the wills whose contents are known. Every testator has, of course, , the right to change radically, and even arbitrarily, ' the manner of disposing of his property; and, in the absence of fraud or imposition, courts will sustain his action in this.respect. But when it has been found that an unnatural change has been made in a sick man’s will, and one apparently contrary to his previous fixed, and determined purpose, it is the duty of the courts to scrutinize closely the circumstances, with a view of
Upon all the facts and law of the case, this court is impressed with the conviction that the codicils to the will of John Hancock, respectively dated April 14, and July 1, 1874, were obtained by imposition, fraud and undue influence, and that they are not entitled to be admitted to private as such, but are severally void, and a decree is ordered to be entered accordingly.
On an appeal from this decision the general term of the supreme court in the second department, held that any defect in the proof of the first codicil had been waived, and it should have been admitted, but that the other codicils were properly rejected on the ground of fraud and undue influence. For the opinion of the general term, see 22 Hun, 38.
From so much of this decision as rejected the second
[After stating facts.]—An appeal from his decision as to the three codicils was taken to the general term of the supreme court, where it was reversed as to the first codicil, and affirmed as to the second and third. An appeal is now taken to this court, by said John Swenarton and John W. Hutton, from so much of the judgment- of the supreme court as affirms the decision of the surrogate, and the only question before us relates to the second and third codicils. No question of law is presented,—one of fact only,—and we find no reason to differ from the concurring judgments of the courts below. It would not be profitable to give here an analysis of the evidence or rehéarse in detail the steps which lead to this result. It has been well and satisfactorily done by the learned surrogate and the general term in assigning reasons for their decisions. There was on the part of the testator not only age, infirmity and disease, but such advantage was taken of his condition that the execution of the two codicils may well be ascribed to necessity and compulsion rather than a voluntary disposition. In such a case the instruments cannot stand, and it was right that they should be rejected.
We think, therefore, that the judgment appealed from should be affirmed, with one bill of costs to the executors first named, to be paid by the appellants, but without costs or disbursements to any other party.
All the judges concur, excep Rapallo, J., absent.
On appeal the general term of the supreme court decided that this codicil was sufficiently established, holding that any defect in the proof of its due execution was waived by the admissions of the parties. And that such admissions, there being no infants in the case, might be taken in lieu of the examination of the other subscribing witness, as the statutory requirement that both of the witnesses must be examined, is subject to the qualification that they are residents of the State (See 22 Hun, 38).
Delafield v. Parish, 25 N. Y. 9.