2 Bradf. 42 | N.Y. Sur. Ct. | 1851
The decedent at the time of his death was 76 years of age. His wife died in 1847, and he had no kin nearer than nephews and nieces. The will propounded for proof, bears date April 28, 1848, and was prepared in a measure from a previous will, executed some three or four years before. It does not appear what the alterations were, though it is not unlikely that the decease of his wife may have occasioned some change in his testamentary intentions. Both these instruments were drawn under instructions, given by the decedent personally to the counsel who prepared them. The probate is contested on the grounds of incapacity, undue influence, and non-compliance with the statutory ceremonials requisite to the valid execution of a will.
Total incapacity is not alleged, but it is urged that his mind and memory were so impaired as to make him the subject of undue influence. In judging of his mental condition, it is important to bear in remembrance, that his hearing was slightly affected, and his eyesight very seriously impaired. But two witnesses express an unfavorable opinion of Iris competency. Mr. McCord, who knew him for eight or ten years, and for two years succeeding May 1, 1848, was in the habit of seeing and conversing with him several times a week, from his intercourse with him during the latter period says, “ I should think he was not capable of attending to business. I should not think he had sufficient intellect to make'a contract.” “ I should judge his memory was very treacherous. He seldom if ever could recognize my voice, though I was in the habit of going in there so often. I generally had to tell him who I was before we commenced conversation.” “ I could not say I cordd consider him capable of making a will. I should say if he had bequeathed his property one day, he
Mr. Rynex, who was acquainted with the decedent ten or twelve years, and visited him occasionally at his house, about the commencement of the year 1848, some two or three times a week, says, “ I considered his mind as rather imbecile, indeed, quite so. I judged he had suffered very much with his eyes, and he was very hard of hearing; and I considered his suffering from these difficulties had enfeebled his mind.” “I did not think him competent to make a will in 1848.” “I talked with decedent quite often on various subjects of conversation. He would reply to me very well. He often asked me to tell him the same thing over again; and I would do so again and again, till I could get him to understand what I said. I suppose he understood, for he gave assent to it. I never talked to him on business, or had business transactions with him. I thought him incompetent to make a will, in consequence of the complaints he made about his extreme suffering, and the difficulty I had to make him understand very simple accounts I gave him of passing events.” “ I cannot say what the cause was of the difficulty I had to make him understand ; I judged it was from his mind being affected by his sufferings.”
This is the burden of the evidence tending to impeach the capacity of the deceased; and, under the established rules applicable to the subject, it is obviously insufficient to sustain absolute testamentary incompetency. There was nothing like a total deprivation or loss of reason or memory. Whatever doubts this testimony may have suggested must, however, be removed by the evidence not only of the witnesses produced by the executor, but of many who were examined on the part of the contestants.
Miss Gross, a witness for the contestants, who resided in the upper part of the house where Mr. Brinckley lived since 1820, says upon direct examination, “ I think as he grew old, his mind became somewhat enfeebled. I don’t know but I noticed a failure in his memory; I don’t know
Mr. Gross, a witness for the contestants, who knew the decedent for thirty years, and was intimate with him, says his mind “ Was about as that of a man of his age should be with his infirmities. I cannot say that I ewer observed any signs of imbecility or of a decayed or impaired intellect.” “ I can’t say that he was a man likely to be injkir enced by those who dealt with him.”
Mr. Christophe, a witness for the contestants, an old acquaintance, who saw him occasionally in 1848, says, “ I can’t say I ewer noticed any defeat in his memory. Sometimes he could recognize me by my voice, at others he would not; I observed he was a little hard of hearing; I frequently had to repeat a thing over to him several times; I should think he was capable of making a will; he had pretty fair abilities ; when he was left to himself, I think he could make a pretty fair kind of a will; I thought he might be easily influenced; he did not seem to have much mind of his own lately, I thought; James Weir did his business.” “ I did not observe any change in him, much, myself, lately; but I had not much intercourse with him latterly. The last time I saw him, was less than two or
Mr. Peixotto, a witness for the contestants and a clerk in James Weir’s store, states that the decedent was in the habit of calling there every fair day, when he was well, except in the summer season. He says: “ I should thmh decedent had afai/r memory, I should judge so from his conversation ; I would read the paper to him and often heard him tell of things that had happened—frequently he would spin yams and relate incidents of previous life.” He “ appeared to understand me as I read the newspaper to him; he paid attention; I took pleasure in reading to him; he seemed always pleased, I judged so from his conversation; he conversed upon the subjects I read about, as if he understood them; the state of his mind, as to soundness, was fair.” “ I should judge he had capacity enough to understand a contract at the time it was made; I would not say he would remember it five years after; but at the time it was made I should judge he had sufficient mind to understand everything that was said about it.” “ I do not think his memory was so impaired that he would forget in a day or two ; he might in a longer time ; if it was anything important, I think he could recollect it a good while. I do not think he ever requested any transaction to be restated ; I would sometimes read part of an article to him one day, and part the next; I would say, ‘ You remefilber what I said yesterday ?’ and he would answer ‘Yes,’ and .then I would go on.”
Dr. Ogden, a witness for the proponent and an old acquaintance of the decedent, states that he saw and conversed with him at James Weir’s house two years since, on the occasion of Weir’s sickness. He says, “He appeared to have Ms faculties, so far as I saw ; there was no indication of any derangement or imbecility-—not more than in persons generally of Ms age.” The doctor mentioned some peculiarities, and adds, “ When I saw him at Wier’s, I did not observe in what he said, any indication of- im
Margaret Gambel, a blind woman, acquainted with the decedent for a long time, and visited by him in late years once or twice a week, states that his memory was excellent, and illustrates her opinion by the fact that he was in the habit of repeating to her passages and entire chapters in the Mew Testament. She speaks in unqualified terms of the soundness of his mind.
Mr. Haviland, who had known him from boyhood, and met and conversed with him frequently in the last four or five years, thinks his mind was as good as that of people at his age, generally.
Mr. Harding, whose step-mother was the wife of the decedent, and who had abundant and excellent opportunities of forming a correct judgment as to his capacity, says, “ I thought Ms mind was very sound and very acute. I dorit think I ever perceived, any failm'e in his mi/nd, or any .weakness or loss of memory”
Mr. Martin, who had known him for more than thirty years, and frequently saw and talked with him, says, a I always took his mind to be firm and strong. It was the same as any other man’s could be. He was in his right mind. That was so while I did the last work for him (in 1850.) I never found any difference. I thought he was very good as to intelligence. He was a man of sound intellect on every subject he conversed about.”
Mr. Betts, who worked for the decedent, states that he gave directions in regard to the work, was inquisitive and attentive, and he saw nothing to excite any question as to his capacity.
Mr. Wheeler knew the decedent intimately for fifty years. He says, “ He was a very retiring, excellent man. I had frequent conversations with him, and always found him rational—in his senses. The chief subject of our conversation was religion.” “ He was as rational a man as
The force of all this evidence in favor of the capacity of the decedent is, I think, increased, when we reflect upon his physical condition, and his peculiarities of deportment. The loss of distinct vision, very naturally tends to withdraw, as it were, the mind within itself. The necessity of depending entirely upon the memory would, it is true, lead to the preservation of that faculty, but likewise to greater care in precisely understanding what was said to him, an anxiety which might very readily, in connection with some slight defect in his hearing, induce a request to have matters he was desirous of comprehending, repeated to him. The chief avenue to his mind was through a single sense. Dr. Ogden describes him as a man who “ pondered before he spoke”— rather “ still and quiet;” and the general tenor of the evidence indicates that, although intelligent enough in conversation, he was not suggestive in starting topics. I see nothing remarkable in that. It would have been singular if the reverse had been the case. In regard to his hearing, the weight of evidence shows it was very slightly affected, and required, from a person speaking near him, only a clear and distinct voice, perhaps a little above the usual tone. The very witness who gave the most adverse opinion on this point, stating that he “ considered him a very deaf man,” said also, “ He could hear pretty well if you talked to him in the tone of voice I am using on this examination. That is the tone in which I usually conversed with him. I think it is above the ordinary tone.”
He certainly was not totally blind. His vision had become impaired in early life, when engaged in watchmaking, and grew worse with his declining years. But he was in the daily habit of walking the streets—he attended church and visited his friends—all without a guide. The accidents .that happened to him, one of which occasioned his death, prove that he could not do this with impunity;
I am satisfied the decedent was perfectly competent to make a will; but in view of his condition and infirmities, the transaction should be carefully examined for any trace of imposition or artifice. Mr. Weir was Ms agent, and stood in a confidential relation. The will was prepared tMrough the intervention of counsel with whom he was acquainted, and called in by him. This was the natural
But it is proper to consider the manner in which the will was prepared. Mr. Hopper, who drew it, states that it was drawn, in a measure, from a former will, which he
It is contended, however, that the will was not executed in conformity with the directions of the statute. By the
On the other hand, Mr. Hopper distinctly states that he told the decedent “ it was necessary to have two witnesses.” He consulted Mr. Weir as to whom he should send for, and then sent for Mr. Albro. “ When Mr. Albro came into the store where Mr. Brinckley was, I told him Mr. Brinckley was about to execute his will, the law required two witnesses to the will, that I would act as one of the witnesses, and he was wanted to act as the other. Mr. Brinckley was present, and perfectly understood me—that is, he appeared to.” The witness then proves the signature of the- will by the testator, in the presence of both witnesses, his testamentary declaration, the request to the
This proof, I think, is clearly sufficient, and is not overcome by the want of recollection on the part of the other witness. In England, in regard to a will executed under the provisions of the statute 1 Victoria, c. 26, it has been decided that positive affirmative evidence by the subscribing witnesses, of the fact of signing or acknowledging the signature of a testator, in their presence, is not absolutely essential to the validity of a will; and that the court may presume due execution by a testator, upon the circumstances. (Blake vs. Knight, 3 Curteis, 547.) This is accordant with the current of decisions under our own statute, and the rule is marked by good sense and conformity to the established principles of evidence. Thus, in Remsen vs. Brinkerhoff, 26 Wend., 332, it was admitted that where the facts essential to the valid execution of the will are stated in the attestation clause, the mere want of recollection of the witness is insufficient to overthrow the presumption of due execution. In other cases it has been repeatedly decided that where one of the subscribing witnesses swears that all the formalities required by the statute