21 Barb. 107 | N.Y. Sup. Ct. | 1855
Lead Opinion
The question whether the testator was of sound mind was so ably examined by the surrogate that it is unnecessary to do much more than refer to his opinion. The tes^ tator was perfectly competent to transact business of a very large extent, for himself and as trustee for others, and as a director
As we differ from our brother Gierke both as to the conclusions of fact, and as to the law, of this case, it would be proper to state our reasons fully, if the case had not been fully examined by the surrogate, or his opinion not been accessible to all, through his reports.
Using the negative of the language of our associate, we are satisfied as matter of fact, that whether all that any witnesses testified, as to peculiarities of opinion, be true or not, they do not establish, when other evidence is received, unsoundness of mind, or an inability to manage his own affairs, or to dispose of his property according to the suggestions of his oivn unbiased and unfettered will; that his false opinions did not affect his intellect or affections, or render him incapable of disposing of his property in obedience to the free impulses and motives by which the human mind in its ordinary healthy state is directed, on such occasions; that they did not impair his ability to make prudent investments, or to advise in the affairs of the various companies with which he was connected, nor, we add, to understand and enjoy the doctrines of the religion in which he was educated, and to make them more particularly the guides of his conduct as he approached nearer to the period when all worldly objects Avould lose their influence, except as they could be used by him to benefit his fellow men; that they did not in the least affect or influence his action in relation to the final disposition of his property, or in relation to any of the prior wills which he had executed ; that they did not affect his testamentary capacity, in any degree ; that he was not under the influence of
He assigned reasons why he gave a comparatively small part of his fortune to his relatives, which showed a mind sound in its power of reasoning, whether correct in its conclusion in the particular case or not. It was, in effect, that they would be really more happy with such provision as he made for them, in addition to what they had already, than if he gave them all that'he possessed. This was the conviction of one who had commenced life with moderate means, whose experience had shown him that property easily acquired was generally soon lost; and that those who had only enough to enable them to employ their abilities to advantage, were more likely to succeed, even in this world’s goods, than those on whom large fortunes devolved without any exertion on their part. Many sound men' would approve his reasoning, although they might not have the resolution to carry it out, towards their nearest relatives, To conclude that a young man, or even a married woman, would be more successful and more happy with $50,000 than with $300,000 and more, does not argue insanity.
The decree of the surrogate should be affirmed, with costs.
Cowles, J. A careful examination of the whole case has brought me to the conclusion that the testator was of sound and disposing mind and memory; fully capable of making his last will and testament. And upon that ground I concur with my brother Mitchell in the conclusion at which he has arrived.
Dissenting Opinion
Mr. Thompson died on the 29t’n of October, 1853, having, two days previously, executed the instrument in question. He had before executed two wills ; the
By the instrument on which we are now called upon to pass, he left several small legacies to the amount of $15,250; to his granddaughter Mrs. Quimby and her mother $100 each, to Edward $15,000, in trust during life, and the remainder, the great bulk of his estate, to religious and benevolent societies. Mr. Thompson died at the age of seventy-five years, unmarried, leaving property to the amount of about three hundred thousand dollars. His only child, Edward, died in the year 1835, leaving a widow and three children, Augustus, Edward and Cornelia, afterwards Mrs. Quimby. He appointed his father, the decedent, trustee of his estate for the benefit of his family. Augustus died an infant.' Edward, still a minor, and Mrs. Quimby remaining his only issue, are the contestants of this will.
The probate was contested on the grounds of—-1st, invalid execution; 2d, insuEcient testamentary capacity, and 3d, undue influence.
I. It is unnecessary for me to dwell upon the first ground, as I fully concur with the surrogate in his reasoning and conclusions on this point. The absence of the schedule referred to in the clause of the will printed at folio 669 of the case, does not invalidate the execution of the instrument as a whole.
II. Before we proceed to consider the testamentary capacity of the testator, it is expedient to inquire into the character and effect of the decision of the late court for the corréction of errors, in Stewart's Executor v. Lispenard, (26 Wend. 255.)
If we are to take the opinions of Senators Yerplanck and Scott, as certain indications of the grounds upon which the court decided this case, we must admit that the highest court of judicature in this state adopted and announced the rule, that “ Courts, in passing upon the validity of a will, do not measure the extent of the understanding of the testator; if not totally deprived of reason, he is the lawful disposer of his property; and his will stands as a reason for his actions.''’
From the constitution of that court, composed as it was of thirty-two senators, ahd in equity cases of the justices of the supreme court—in common law cases, the chancellor—the difficulty of ascertaining the exact ground of any adjudication was well understood, and was the cause of much perplexity and uncertainty to the bar, and to the courts of original jurisdiction. Many opinions were often delivered in the same case, and, although the conclusions might have been the same, the reasoning and the propositions, from which those conclusions were deduced, were sometimes dissimilar, and not unfrequently quite repugnant. Ho opinion was ever officially pronounced as the opinion of the majority of the court. This was felt to be a serious defect in our system, and was one of the many reasons, which influenced the convention of 1846, in recommending the establishment of a new court of appellate jurisdiction.
In Stewart’s Executor v. Lispenard, the only opinions pub- " lished are those of Senators Yerplanck and Scott; so that we are entirely without any means of ascertaining the views of the majority of the court, on the legal principles involved. Mr. Justice Bronson, the only justice of the supreme court, and the only member of any court, present, declined to give any opinion; excusing himself on the ground of want of leisure to examine the authorities cited. He attended solely for the purpose of enabling the court to form a quorum. The president of the senate was in the same predicament; and he, as well as Judge Bronson, declined to vote.
Indeed, it is quite plain to my mind, from the questions pre
I am, therefore, inclined to the opinion, that the decision in the Lispenard case has not declared or established, irrefragably, any principles of controlling or indisputable authority, on the subject of testamentary incapacity. I think we are still free to examine the propositions contained in the opinion of Senator Verplanck, and to inquire whether “ the courts in passing upon the validity of a will, do not measure the extent of the understanding of the testator; and, if not totally deprived of reason, that his will stands as a reason for his actions.”
This opinion is, probably, in accordance with ancient authority, and with decisions comparatively modern. According to ancient commentators, the more general description of a person, who from his want of reason and understanding comes within the protection of the law, is that of non compos mentis. And Coke, in his commentary, on section 405, liber the 3d of the Institutes/ where Littleton indicates this principle^. says* Non compos
It is said that Lord Eldon was the first who gave this term a distinct place among the legal varieties of mental alienation. The distinction is clearly held in Ridgeway v. Darwin, (8 Ves. jun. 67.) Mr. Shelford, in his treatise on the law of Lunatics, page 87, in commenting on this opinion, states that it imports that the party is in some such state of mind, as is contradistinguished from idiocy and lunacy, and yet such as makes him a proper subject of a commission; and subsequent decisions are in conformity with this view.
In cases, then, of the description now before us, the question is not merely, was the testator a lunatic, but, if not a lunatic, had he an unsound mind. The terms lunacy, idiocy, and unsoundness of mind, have a fixed and definite meaning. Lunacy, formerly applied, in popular language, only to periodical insanity, is that diseased exaltation of the intellectual or affective powers, or of both, more generally known under the term mania. It arises from a morbid affection of the brain, and, like other diseases, is the subject of remedial treatment. To employ the language of an able medical writer on the subject, “ Whether proceeding from hereditary predisposition, or maternal influences during gestation, from the cerebral irritation produced by disease in other parts, or by external injuries, from excessive or deficient exercise of the mind, from great predominance or indulgence of some faculties, with a small endowment or neglect
Sir John Nicholl, in Dew v. Clark, thinks that the true criterion of this partial insanity, or monomania, is delusion—a delusion, out of which the patient is incapable of being permanently reasoned. Lunacy, in short, is now synonymous with mania, whether total or partial, permanent or occasional.
It is scarcely necessary, on the present occasion, to dwell on the characteristics of idiocy. It is a congenital obliteration of the chief mental powers, amounting to a great insensibility to external impressions, accompanied by certain physical indications, which can never be misinterpreted; indications which proclaim the torpor of the faculties within, with as unerring certainty as the rolling eye and staggering gait proclaim the drunkard, or the pallid and hollow cheek the victim of disease.
Unsoundness of mind, as contradistinguished from lunacy and idiocy, is mental deficiency, either arising from an obstacle to the development of the faculties supervening in infancy, or from disease, as epilepsy, (a very common cause,) or from the decay of old age, or from grief, or disappointment, or intemperance, or any other cause.
These distinctions being established, let us next inquire whether the decedent betrayed any singularities of conduct or opinion, to warrant the belief that his mind and character were affected by lunacy or unsoundness of mind; as it cannot be pretended that he exhibited any of the symptoms of idiocy.
I will, principally, examine the evidence in relation to his conduct, his acts; although I am very far from subscribing to the proposition, that mere speculative errors, however monstrous or absurd, are no proof of mental alienation. A man may peradventure, believe in all the abominations and “ wanton rites” of ancient Greece and Rome, and worship in sincerity “ fanatic Egypt’s wandering gods, disguised in brutish form;” he may hope to obtain salvation, like the poor Hindoo devotee, by stand
“ Moloch, horad king, besmeared with blood Of human sacrifice, and parents’ tears
But it is probably sufficient in this case to examine the con
e will first take Solomon Davis, who at the time he gave his • testimony was seventy-two years of age, and had resided with Mr. Thompson, twenty-three years previously, for nearly two years, and had lived altogether with him sixteen times, “ off and on.”' After saying that he was a man of curious habits and curious ways, which he could not exactly express, and specifying some instances, he proceeds to say that after he was with him about a year “he gave him a book to read, called Francis Barrett, a book to work spells, cure fever and ague and raise spirits. He then said he knew a place at Montauk where Kidd’s money was buried; that he had been on there with an old man he took up, and had a rod that would attract to the money. That he got a man at Sag Harbor named David Mulford. He acted as a rodsman. It did not work well in the old man’s hands, because Mulford had more of the water of life in him. I asked him why Mulford had more than other men; whether it was because he was a bigger man; because of his size. He said no; it was because he drank more rum. He said Mulford took the rod in his hands and it worked well, and he found where the deposit was; struck a crowbar in it and it sounded; formed his ring and commenced digging. Just as he broke the turf there was a great black and white spotted bull came running over the hill, throwing his tail as if he had the wattles in his back in the spring of the year. The bull pawed and hooked the dirt as if he was mad. There were nearly a thousand cattle, he said, that came and passed diagonally over another hill opposite, which acted just like that bull. He said the bull looked to him as big as a mountain.” He mentions another circumstance that occurred after Mr. Thompson removed from Beekman to William street, about 21 years ago. “ He told me to go to the stable and get a wrench to take his plate off the door. I came in the back way through the basement, up the back stairs into the hall, and met him about halfway, and he took the wrench out of my hands to unscrew the plate. I turned and had just got down the stairs a
Mrs. Sarah P. Mather details long conversations with him about Kidd’s money, treasures under the earth, and enchantments. He said, talking of the philosopher’s stone, that “he had set apart a house, and a man consecrated to the work ; every thing about it was consecrated; the room was carpeted, and lined with Irish linen. He kept wax candles for forty days and nights ; they must not go out. I inquired why forty days? His answer was, that Moses was in the mountains forty days; our Savior fasted forty days. He said that the' man whom he had set apart, and consecrated to raise spirits and get the philosopher’s "stone, and other purposes, must not eat while the sun was up. He could only eat before sunrise and after sunset; and then must eat only unleavened bread, or Boston crackers, &c.” “Perfumes were kept burning in the room and the man was dressed in white Irish linen. His object was not only to obtain the philosopher’s stone, but also to call in the planetary spirits, whom he could command, and who would obey whatever he said.” She proceeds with many
On the other hand, we have the testimony of his physician, Judge Campbell, Mr. Strong, and many others, some of them fellow directors in money corporations, who unhesitatingly testify to his sagacity, good judgment, and ability to transact the affairs of life judiciously. But this is perfectly consistent with the idea that the decedent may, nevertheless, have been the victim of monomania. In fact it is necessarily within the definition of that state of mind. The delirium is confined to one object. The sufferers are pursued day and night by the same ideas and affections, and they give themselves up to them with profound ardor and devotion. They often appear reasonable, when conversing on subjects beyond the sphere of their delusion. It is highly probable, indeed, that the delusions under which Mr. Thompson labored did not impair his ability to make prudent investments, or to advise on the affairs of the companies with which he was connected. But can we therefore say that they did not affect or influence his action in relation to the final disposition of his property—an act very different from the cold calculations of business, calling forth the exercise of the emotions, perhaps reviving prejudices and mistakes, and begetting excitement, capable of overruling the better affections of his nature and the promptings of his unclouded reason.
It is a mistaken view, and reversing the proper mode of considering this subject, to say that the testimony in favor of-his
III. Should it, however, appear that those delusions did not of themselves impair his testamentary capacity, either as the result of partial lunacy or unsoundness of mind, still can it be doubted that he was subject to frequent aberrations of mind, which left him very much to the mercy of designing persons, and exposed him to undue influence. He had paralysis some twenty years before his death; frequent fits of epilepsy three or four years, and received a severe kick in the head from a horse, about two years before that event. To say the least, the change in his intentions from August 31,1850, when he left the great bulk of his estate to his grandson Edward, to his disposition of it on the 13th of May, 1851, when he left him only $20,000 for life; again, the further change, on the 27th of October, 1851, when he left him only $15,000 for life, and executed the will now in controversy, savor of capriciousness, and do not appear to have been incited by adequate motives operating on his unbiased will. That grandson and his sister were his only lineal descendants, the children of his deceased and only son, whose premature death he bitterly deplored, and whom he promised, at his dying hour, to be a father to his children, and to leave them all his property. What did these children ever do to forfeit his regard, or to induce him to violate this most solemn and affecting obligation?
I think, therefore, if we cannot conclude that he was laboring under lunacy or unsoundness of mind, in the strict legal sense of that term, that he was the subject of mental aberrations or imbecility which exposed him to undue influence. Indeed epilepsy is well known to produce this state of mind; and Lord Eldon expressly recognizes it as one of the causes even of unsoundness of mind. In Senator Yerplanck’s opinion in the Lis
On the whole, then, I am of opinion that the decision of the surrogate should be reversed, with costs ; and as the statute in such cases absolutely and positively requires, that the case should be sent to the circuit to be tried by a jury; to inquire on the principles( stated in this opinion, 1st, whether the decedent had sufficient testamentary capacity, and 2d, if they should answer the first question in the affirmative, was he the subject of undue influence, and was it exercised over him, in relation to the disposition which he made of his property by the will in question ?
Decree affirmed. .
Mitchell, Clerke and Cowles, Justices.]