3 Bradf. 172 | N.Y. Sur. Ct. | 1855
The decedent, by her will bearing date the second day of November, eighteen hundred and forty-eight, gave all her property, with the exception of her household furniture and wearing apparel, to Peter Wilson and Harris Wilson. The following is the clause of the will making that disposition: “I give, devise, and bequeath, to Peter Wilson and Harris Wilson, of said city, counsellors at law, in consideration of my sincere regard for them, and of the many kindnesses and services performed by them for me, and the many suits and other matters of business done and transacted by them for me as my attorneys and counsel, and on my behalf, and for my benefit; all the rest, residue and remainder of all my property,” &c. The probate of the will is contested by several nephews and nieces of the decedent on the ground of incapacity and undue influence. The decedent, several years before the execution of this instrument, had made a visit to Ireland for the purpose, in part, of seeing her sister and relatives, and on her return to this country she brought one of her nieces with her. She appears not to have continued upon go®d terms with her niece, and also to have expressed dissatisfaction with her relatives. In 1848 she made this will, which remained unrevoked at the time of her death. Its execution in all formal respects is fully proved by the subscribing witnesses, and there being no ground for suspecting her competency at that period, or indeed until five years afterwards, there is nothing in the way of admitting it to probate save the fact that the two legatees were her professional advisers. It becomes important in view of that circumstance, to inquire more particularly into the case, in order to ascertain whether there are traces of fraud, circumvention, or the exercise of influence incident to the confidential relation which existed between the parties.
Hr. Flanagan, who drew the will, testifies that it was drawn and executed at his office, where the decedent called on him for that-purpose. From the language of the will not being such as he ordinarily uses, he thinks it must have been taken from some other instrument, though he has no recollection of any other being produced. From the fact that the
The first important circumstance in making this inquiry is the absence of the party to be benefited at the time of the execution. This of itself is not conclusive against improper interference, for influence may be so great as to govern its subject when withdrawn from its immediate action. But still here is a certain degree of liberty, which would have been wanting in case the legatee had been present. It is true that if the testatrix had been induced to make this will, the legatee might have ascertained how she had disposed of her property from the draftsman, but it does not appear that any inquiry was ever made on that point, and after execution the testatrix took the instrument away with her. As to capacity and intention, Mr. Flanagan testifies that the decedent was of sound mind, memory and understanding, and appeared to know perfectly what she was about. The will was carefully, slowly, and distinctly read over to her, and she appeared to understand its contents perfectly. He adds that she spoke somewhat in terms of commendation of the Messrs. Wilson. Mr. Flanagan was acquainted with the decedent, but not intimately, for eight or ten years. The other subscribing witness, Mr. Tappan, who had known her for twelve or fifteen years, says that “ she understood herself very well. Her mind was apparently clear.” Mr. Tappan was in Mr. Wilson’s law office from 1837 to 1845, and had there abundant opportuni
Peter Ruck, who was acquainted with the decedent a number of years, says she was a “ queer woman to deal with,” “ strange in some things,” “ a very singular woman in her dealings,” and “was quite changeable in her mind.” The only fact he mentions as the basis of his opinion is that she wished his father to buy some leasehold premises in Jay Street, for $800, and a year or two afterwards, when he was willing to purchase, she refused to sell, “ saying she had been advised by somebody that it was worth more.” Mr. Radford,
An element which it is always proper to consider in this class of cases, and which is very material in determining the probability of the will having been the free act of the decedent, is the exhibition of the testator’s wishes orally expressed as to the disposition of the estate. The evidence on this point agrees with the provisions of the will of the decedent, for although declarations in favor of her relatives are testified to, they appear to have been made before any unfriendly feelings towards them arose in her mind.
Mr. Tappan states that she always spoke of her relatives in unfriendly terms, but expressed great esteem for the Wilsons, and especially for Peter Wilson. Mr. Swain testifies that she often told him she was going to leave her property
It is manifest, then, that this instrument was made when the decedent’s testamentary competency was beyond impeachment, when indeed she was abundantly able to manage her affairs with intelligence, shrewdness, and energy. The parties benefited were not present at the transaction, the provi