4 Bradf. 138 | N.Y. Sur. Ct. | 1856
The testator, by his will, executed the 24th day of July, 1856, the day of his death, gave to his wife the dwelling house No. 179 West Sixteenth Street, where he resided at the time of his death, with the household furniture, twenty lots and houses on Twenty-second Street, between the Seventh and Eighth Avenues—and also the general residue of his estate, after the following devises and bequests, viz. to Mrs. Eleanor Grotecloss, house and lot No. 127 Sixteenth StreetJames Hodge, house and lot, No. 125 Sixteenth Street; Edward Grotecloss, lot of land in Market Street, Newark, New Jersey; John Grotecloss, lot at Somerville, New Jersey ; James Hodge, leasehold lots in Fourteenth street, stock in trade and implements; of the Bailey Manufacturing Company stock, $1000 to John Grotecloss, $1000 to Edward Grotecloss, $1000 to the executor George G. Smith, $1000 to William Grotecloss, $2000 to George M. Tunison, $1000 to Harriet Grotecloss, $1000 to Mary A. Dissosway, $5000 to Tunis Tunison, $2000 to Rachel Ann Hodge ; of the Mohawk River Mills’ stock, $1000 to John C. Tunison, $1500 to Cornelius Henry, Jacob and Isaac Tunison, and $2500 to the Twenty-third Street Presbyterian Church; $500 to John W. Consall; $800 to Mary E. Smith; $800 to Elizabeth Smith; $500 to Robert G. Smith; $500 to Perry Anderson; $200 to Mary Watson; $100 to Mary, Agnes and Elizabeth Watson, each; $1000 to George G. Smith; $2500 to Peter Y. W. Bishop; $1000 to James Pringle; $500 to Louisa Tunison.
The first objection made to the probate, relates to the formal execution of the will, which, it is insisted, was defective for .want of a sufficient testamentary declaration, and a request to the subscribing witnesses to attest the instrument. The will was dictated by the testator and' was read over to him before execution, in the presence of all the witnesses. The Rev. Mr. Clark testifies that Mr. Edwards, the counsel who
It is urged, however, that the instrument is invalid by reason of undue influence exercised by Mrs. Tunison over her husband, the testator. There is no pretence of fraud or circumvention, but merely an allegation of improper influence. The existence of an influence sufficient to accomplish such a purpose is sought to be established by particular instances of its exercise, when the decedent was in a state of perfect health. In this respect the effort entirely failed,—that is, in showing that the decedent at any time succumbed, in his usual avocations or ordinary business affairs, to a superior mental influence. On the contrary, I think that on the particular occasions which have been made the subject of criticism, he acted independently and according to his own views. Thus, for example, Mrs. Tunison’s refusal to sign the deed of the Brooklyn property was eventually relinquished.
Evidence was offered on the trial for the purpose of indicating the improbability, that the decedent made the testamentary provisions in the will in favor of his wife, of his own free and unbiased volition. The family differences exposed with this object by no means sustain this position. In drawing aside the veil which covers the privacy of domestic life, infirmities of temper and household difficulties, though condoned from time to time, still when collected together and sifted out of the experience and intercourse of years, may appear in the aggregate somewhat formidable. The rough places are always salient and observable—the smooth attract little attention. Sudden betrayals of temper may be marked, while the ordinary course of good feeling passes comparatively unnoticed, and affection modestly shrinks from being demonstrative when observed. These parties had been married twenty years, they were without children to inherit their property, and their respective relations might form expectations of future benefactions. The evidence on the subject of the alleged differences has been mainly drawn from the relatives on the husband’s side, who have been disappointed in realizing the extent of their expectations. There was no complaint by Mr. Tunison on any point affecting in the
Various statements have been given of Ms declarations, from time to time, in relation to the disposition of Ms property by will. Such declarations are undoubtedly receivable, where there is room for doubting the strength of the testator’s capacity, and for suspecting improper influences brought to bear on his volition, but they diminish in importance as the grade of capacity increases, and have no value whatever where the mind is sound and vigorous. It is not uncommon for persons of a generous disposition, without children, and with relatives not affluent, to talk freely in regard to testamentary intentions. Withal, a fortune rapidly acquired, tends, under such circumstances, to promote tMs class of declarations. Such general and loose statements, however sincerely made at the time, show no settled scheme or plan, and cannot impeach a will celebrated with the requisite legal solemnities, by a testator of undoubted capacity. In all the evidence given on this point, it does not appear that the decedent at any time proposed to cut off his wife merely with her right of dower in Ms estate, while on one occasion he seems to have contemplated giving her $50,000, a sum not far from the value of the devises to her contained in the will, after deducting the heavy incumbrances upon the property. But still in any event, whatever may have been his
The case then is narrowed down to the consideration of the events connected with the factum of the will, and the state of the testator’s mind at the time of the execution. It is insisted that the bequests contained in the will exceed somewhat the amount of the decedent’s personal estate, after the payment of his debts. This often happens, and though such a fact might be adminicular proof to help in determining a case of doubtful capacity, yet, standing alone by itself, it is not sufficient to impeach the soundness of the mind or memory. The decedent was engaged in active business: it does not appear that at the time of dictating the will he summed up either his debts, or the legacies, or the amount of his personal property. In the absence of such a comparative statement, the mistake, if it be one, might readily have occurred without faulting his capacity. But let us see what positive indications there were of an irrational or weakened mind.
Bow it is especially observable that the disease of which the decedent then lay ill was not of such a character as to affect the functions of the brain. There was no sign of cerebral or mental disturbance. His mind was clear and intelligent. The course of the malady was sudden and quick, and his strength of body was great even shortly before decease. There can be no doubt on these points. Three professional gentlemen of high intelligence and respectability were present at the transaction—a clergyman, a physician, and a lawyer. Numerous persons were around the decedent before and after the occurrence. A large circle of friends was collected about his dying bed. Bot a single person,
So far as consistent with a death-bed will, this instrument was made with care and deliberation. It bears the impress of a generous disposition, mindful in a large degree of the claims of relatives and friends; and though all expectants have not been gratified, it does not appear that any were excluded whom he desired to' remember. He enforced, the