5 Redf. 139 | N.Y. Sur. Ct. | 1881
[After stating the testimony.]
The questions raised, and necessary for consideration, in this case, are:
1st. Whether the decedent at her death was domiciled in New York or in France.
2d. Whether the instrument propounded was executed by the decedent free from restraint.
The testimony which is claimed by contestant to establish a domicil in Paris, is substantially- the recita
It is true that the witnesses upon this subject are
I do not regard the recitation in the will, “ late of t the city and State of New York, in the United States of America, now residing in the city of Paris,” as con trolling, when taken in connection with the other facts of the case, because the term residing, in common parlance, is used, as signifying a sojourning or present stay.
In Dupuy v. Wurtz (53 N. Y., 556), it was held that the execution of a will of personal property depended upon the law of the place where the testator was domiciled at the time of his death, and that for the purpose of succession every person must have a domicil, and but
I am also confirmed in this opinion by the case of Dupuy v. Wurtz, above cited, for there the learned judge, after an elaborate review of all the decisions of the courts of Prance upon that subject, reached the same conclusion as to the result of the final adjudication of the court of cassation. I am, therefore, of the opinion that decedent died domiciled in the city of New York, and not in Paris; and that in that respect the will was properly executed, conformably to our law, and valid.
I had occasion to consider a kindred question in Von Hoffman v. Ward (4 Redf., 244).
The next and final question upon which I am called to pass, is whether the evidence warrants the finding that the will in question was executed under restraint, or undue influence, and, bearing upon this question, it is important to understand the mental condition of the decedent at the time of its execution.
It is, perhaps, safe to presume that a lady eighty years of age did not enjoy the same mental vigor that she did in early life, but the preponderance of the testimony, taken in conjunction with the evidence of the subscribing witnesses, in the absence of that of Mr. Washburne, and the attorney who drew the instrument, and who must have known her mental condition, establishes, to my mind, the fact that decedent was of vigorous intellect and clear understanding, and a woman of rather remarkable independent opinions and will.
Without further reference to the testimony upon that
In Deas v. Wandell (59 N. Y., 636), it was held that the mere fact that a will gave all decedent’s property to persons not related to the testator did not raise the presumption of want of mental capacity or undue .influence.
In Seguine v. Seguine (3 Keyes, 663), it was held that the doctrine of an inofficious document had no place in our law ; that if a testator seems to have had testamentary capacity, when under no undue influence, he may dispose
In Cudney v. Cudney (68 N. Y., 148), it was held that, to invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred, and that it was not sufficient to show that the party benefited by a will had the motive and opportunity to exert such influence, but that there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by fraud, or other improper means, that the instrument is not really the will of the testator. See Booth v. Kitchen (3 Redf., 52); Mairs v. Freeman (Id., 181); La Bau v. Vanderbilt (Id., 384).
• It appears that decedent and proponent conversed upon the subject of the injustice of the will made and left in New York, in respect to the changed condition of the daughters, and that the decedent recognized and admitted the fact; and the testimony of Mary Stone, taken in behalf of the contestant, shows that in 1876, in a conversation, she asked witness as to the advisability of changing her will, and stated as a reason that the circumstances of her daughters had altered since her first will, and that she desired to change it, and give proponent more; observing that contestant had an income and proponent none.
The decedent, in her will, in the residuary clause, which divides the remainder of her property equally between her daughters, states that they are equally dear to her, and any apparent disparity in the amounts provided for them arose from the fact that Mrs. Tucker had
The reasons thus stated seem to concur with those expressed to Mrs. Stone, and if they were suggested to her by proponent, they seem to have been reasons which commended themselves to decedent, and there is nothing in this case which shows that the facts stated by proponent and by decedent in her will, were not true.
Redfield, in his Treatise on Wills, vol. 1, p. 535, says : “We do not suppose that if the testator is capable of making a valid will, when left to himself, his testamentary act is to be rendered nugatory by the honest importunity of a wife, to obtain only what she deems her fair share of his estate, and which only prevails to that extent; although it could be shown that, without such importunity, the testator would have given her much less. And the same may be said of other relations fairly entitled to the testator’s bounty. And although it may be justly said that good faith is no fair criterion of justice and propriety in the measure of the importunity of solicitors for testamentary bounty, yet if the importunity is only to the extent of justice and propriety, its results, to that extent, can scarcely be condemned, because their author would gladly have carried them beyond that limit.”
In other words, the considerations addressed to the intelligence and good feeling of a testator, which leave him still to his independent choice, or which influence
I have not deemed it necessary to consider the extraordinary anxiety in respect to the proposed change of decedent’s will manifested by the proponent, or the officious advocacy of its justice by Julian Field, except so far as they seem to bear upon the question of the actual exercise of undue influence upon the decedent, because they are matters of taste and propriety, as to which it is possible, though not probable, that there may be a difference of opinion.
I am, of the opinion that the relations of the parties, and the terms of the will, are not such as to raise any
Decreed accordingly.