text:
      In re Mabie’s Will.

      (Surrogate’s Court, Roclcland County,

      Filed September 16, 1893.)
    1. Will—Undue influence.
    Testatrix made her will at the age of 80, leaving legacies to her brothers and sisters, amounting to about one-third of her estate, and bequeathing the residue to her nephew and niece, with whom she had then resided about two months-, and with whom she continued to reside till her death, about five years subsequently. She had at one time declared her intention to leave her property equally between her brothers and sisters. There was no direct evidence of restraint or undue influence, nor could same be inferred from the evidence. The nephew and niece testified they knew nothing of the will having been made or of its contents till some time after testatrix’s death. Held, that undue influence was not established.
    2. Same—Mental capacity—When sufficient to sustain well.
    Although such a testatrix was just beginning to betray evidence of senility from the fact that her memory was impaired, and that she would fail to recognize acquaintances or call them by wrong names, and there was also evidence of eccentricities and peculiarities in her actions and conduct, held, that as she remembered all her immediate relatives, all of whom were mentioned in the will, and as the aggregate of the legacies showed she had a clear comprehension of the amount of her estate, and that no one but herself gave the particulars for the provisions thereof to the attorney who prepared the will, she had sufficient testamentary capacity, although the case was a marginal one.
    Probate of will of Mary Mabie, deceased. Granted.
    A. & A. X. Fallon, for proponent (Abram A. Demarest, of counsel) ; Arthur S. Tompkins, for contestants.
   Weiant, S.

Mary Mabie, the testatrix, made and executed the instrument, the validity of which is contested herein, on the 3rd day of January, 1887. She died on the 3rd day of October, 1891. She was not the owner of any realty, and left- an estate of the value of between $10,000 and $12,000. By this writing she first directed that all her debts and funeral expenses should be paid; secondly, she bequeathed to her sister Ann Brooks the sum of $1,000, and certain articles of household furniture; thirdly, she bequeathed to her sister Phebe Harris the sum of $1,000, and also certain articles of household goods and personal apparel; fourthly, she gave to her sister Matilda Moore the sum of $500, and a “parlor setteefifthly, she bequeathed to her brother John Westervelt the sum of $700; sixthly, she gave to' her brother Jesse Westervelt the sum of $300, and all the'wearing apparel of her deceased husband, Oornelius P. Mabié; seventhly, she bequeaths to her niece and namesake, Mary A. Blauvelt, wife of Abram Blauvelt, the sum of $6,000, and the articles of household furniture and wearing apparel not by her will otherwise bequeathed; and, eighthly, she bequeathed and devised, all the rest, residue and remainder of her estate, real and personal, to Abram Blauvelt, the husband of her said niece, Mary A. Blauvelt. She appointed said Abram Blauvelt sole executor of her said will. The testatrix was about 80 years of age at tire time of making this will, and left, no children or descendants of any. Her husband, above named, had died in April, 1886. The brothers and sisters named in the will were her nearest relatives. She and her husband had always resided together at the place of their residence at the time of his death, or in that vicinity. For about six months after Mr. Mabie’s death, the testator continued her residence at the homestead occupied at the time of his death, and then, on Thanksgiving day, in Hovember, 1886, she changed her home to that of her niece, Mary A. Blauvelt, and her husband, Abram Blauvelt, at Piermont, a distance of two or three miles from her said residence. She continued to reside with said niece and her husband during the remainder of her life, and died at their home on the date above specified. While residing with her said niece at Piermont aforesaid, she executed this will in question, in due form of law. The due execution of the same is not challenged, but the contestants object to the admission of the will to probate, on the grounds that the testatrix was of unsound mind at the time of the execution thereof, and not having sufficient capacity of mind to be legally qualified to make the same, and that the same was brought about by undue influence and fraud, and was not her free ant and deed. Upon those two questions a considerable mass of testimony was taken, covering about 1,400 pages*, besides the documentary evidence, and detailing facts and circumstances bearing chiefly upon the mode of life of the testatrix, and her condition mentally and physically.

After a careful and deliberate consideration of this evidence and of all the facts and circumstances, I have reached the conclusion that this will must be admitted to probate. The proof shows the facts above collated, and as to which there is no dispute. While the testatrix was residing at Piermont, with her said niece and her husband, shortly prior to January 3, 1887, word was left at the residence of Andrew Fallon, lawyer and near resident, through which he was requested to call at Mr. Blauvelt’s house. He answered this request, and saw Mrs. Mabie. He was alone with her in the house about 20 minutes or half an hour, during which time she gave him instructions as to the preparation of her will and the provisions thereof. Upon the completion of the interview, Mr. Fallon informed her that, as soon as he had the will prepared, he would come with it, and bring his son as a witness if she assented to it Mr. Fallon prepared the will accordingly, and called upon her at Mr. Blauvelt’s house, with the will, on January 3, 1887, and took hia son with him. He then, upon entering the house, went into a room with Mrs. Mabie alone, and closed the door. Both sat down, and Mr. Fallon read the will to her. He asked her if that was correct. She said it was. He laid the will upon the table, and told her he would call his son in. He did so, and again closed the room door. Then followed the execution of this will by the testatrix before the two subscribing witnesses alone, in full compliance with the requirements of the statute as to the execution of wills. Mr. Fallon then asked the testatrix what she wanted done with the will, and she answered that she desired him to keep it. He then placed it in a sealed envelope, and took it to his office, where it remained until produced in "this proceeding. The testimony of these subscribing witnesses contains the other usual statements of facts1 as to the sound mind, memory and understanding of the testatrix, and that she was under no restraint. It thus appears that the testatrix duly ■executed this writing as her last.will and testament; fully complied with the legal requirements; that she was in proper condition mentally to dispose of her estate; and that she was free and unrestrained in so doing. It also appears from that testimony that the testatrix had testamentary capacity, and a present knowledge of the contents of the will, and a comprehension of the act of making the same. It then rested upon the contestants to meet this condition of the case, and show that either the one or the other of the objections interposed was established. As to the restraint or undue influence upon the testatrix, there is no direct evidence; nor is there sufficient from inference, if any such there be, upon which the finding may be rested that she was .such undue restraint or influence when she made this will. If there is testamentary capacity and a present knowledge of the contents of the will, and the Avill is executed pursuant to the formalities prescribed by the statute, it can only be avoided by proof of influence amounting to force or coercion, and the bur-den is on the party making the allegation that the testatrix was imposed upon, or overcome by the acts or practices of the beneficiary. In re Martin; 98 N. Y. 193; Loder v. Whelpley, 111 N. Y 239, 18 N. E. Rep. 874; In re Williams’ Will (Sup:), 19 N. Y. Supp. 778, and cases there cited. And this kind of influence will not generally be presumed. Marx v. McGlynn, 88 N. Y. 357. It is not sufficient to show that a party benefited by a Avill had the motive and opportunity to exert such influence. There must be evidence that he did exert it. Cudney v. Cudney, 68 N. Y. 148; In re Smith’s Will, 3 N. Y. St. Rep. 137; In re Clausmann, 9 N. Y. St. Rep. 182; In re Thorne’s Estate (Surr.), 7 N. Y. Supp. 198; Children’s Aid Soc. v. Loveridge, 70 N. Y. 387-394; In re Phalen’s Will (Sup.), 19 N. Y. Supp. 358. In Re Phalen’s Will, supra, which is a decision of the 'Supreme Court at General Term in the first department, and ■which case was a contest of a will or codicil thereto, on the ground that its execution was procured by undue influence exercised by a daughter of the testator, it appeared that the instrument was prepared in accordance with the instructions of the testator; that it was read to him before he signed it, and was ■executed in the presence of the subscribing witnesses only; and there was no evidence that the daughter knew that its execution was contemplated before it was done. It was held that no undue influence was shown, though it was in evidence that the daughter lived in an adjoining house of her father, with an -opportunity to influence him. The facts in this case are quite in line with those in that cause, and both Mr. and Mrs. Blauvelt testify that they knew nothing of this will' having been made or •of its contents until some time after the death of the testatrix. Eor is an unequal distribution of a testator’s estate, as the contestants claim, of itself sufficient to justify the conclusion or .inference of undue influence. In re White, 15 N. Y. St. Rep. 753; In re Tracy, 11 N. Y. St. Rep. 103. Inequality of a will alone is not sufficient to establish undue influence. In re Lasak, 10 N. Y. Supp. 844. It is the rule that a testator may make such disposition of his property as he desires, although the disposition may appear unjust and inequitable, or even absurd, to others. Potter v. McAlpine, 3 Dem. Sur. 108; In re Mondorf, 110 N. Y. 450, 18 N. E. Rep. 256; Horn v. Pullman, 72 N. Y. 269; In re Williams’ Will (Sup.), 19 N. Y. Supp. 778, and cases there cited. The change from the prior declared intention of the testatrix, to divide her property equally between her sisters and brothers, to the dispositions in this will, may have seemed well to her. It may have been unjust towards her sisters and brothers, but that furnishes no ground in law for disturbing this will. Horn v. Pullman, 72 N. Y. 278; Children’s Aid Soc. v. Loveridge, 70 N. Y. 387; In re Williams’ Will, supra.

In the consideration of this question of undue influence, I have kept in mind the confidential and close relation that existed between the testatrix and Mr. and Mrs. Blauvelt. Mrs. Mabie was at all times near them -or some member of their household, and at all times accessible to their influence and persuasion. Mr. .Blauvelt was her business agent, and managed her property, and transacted her matters in the way of purchases and disbursements. She evidently intrusted all such matters to his care and attention, and paid him $10 per week throughout the whole period of her living with him, for her board and maintenance. These relations of these legatees and devisees were therefore such as require close scrutiny of their conduct towards*, treatment of, and dealings with, the testatrix, to see whether, under such favorable circumstances, these beneficiaries used any illegitimate means or influence, or exercised their power and used their confidential relation, to bring about a disposition of the estate more favorable to themselves, and different from the intent and purpose of the executrix. I have so considered that subject and applied that rule. And I have also kept fully in mind the fact of the impaired physical and mental condition of the testatrix, as disclosed by the evidence, and which is more specifically referred to and considered hereinafter, for in her condition she was much more susceptible to undue influence, deceit, or fraud than when she was in the vigor of her womanhood. And I have also remembered the well-founded proposition that it is rarely the case that direct evidence can be furnished that undue influence has been exercised over the mind of a testator in the making of a will, and yet that the circumstances attending the transaction may, however, be of such a character as to lead irresistibly to the conclusion that undue influence has been at work in its preparation and execution, and that the will is not the free and untrammeled act of the deceased. But notwithstanding that the case is one fully open and opportune to the action of these two legatees and devisees, if they saw fit to avail themselves of those advantages to secure these favorable bequests and devises of the testatrix, the answer to the claim of the contestants is that there is no evidence of any act, word, or movement of either to secure or obtain the making of this will at all, and especially not as to its provisions.

We now come to the consideration of the question of the capacity of the testatrix to make this will. The general rule of law as to the sufficiency of the capacity to make a valid will is simply whether a decedent has sufficient intelligence to comprehend the condition of his .property, his relations to those who are or may be the objects of his bounty, and the scope and meaning of the provisions of his will; and, if it is his free act, it will be sustained. Horn v. Pullman, 72 N. Y. 269; Van Guysling v. Van Kuren, 35 N. Y. 70; Cornwell v. Riker, 2 Dem. Sur. 354; In re Williams’ Will (Sup.), 19 N. Y. Supp. 780; In re Snelling, 136 N. Y. 515, 32 N. E. Rep. 1006.Upon the whole case, the conviction has come to my mind that the testatrix had sufficient capacity to place her within .the requirements of this rule, although the case is a marginal one. The testatrix was a very old person, but no presumption of incapacity arises from old age alone. Horn v. Pullman, 72 N. Y. 269. “A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite.” Cornwell v. Riker, 2 Dem. Sur. 354-366, and the authorities there cited. It is true that the evidence shows that the memory of the testatrix was impaired at the time of the making of this will. Many instances of her forgetfulness appear from the testimony. She would frequently hide or misplace articles of food, clothing, and other things about her house, and be unable to state where the same were, or have any recollection as to the same. She would at times fail to recollect or recognize acquaintances, and address persons whom she knew well by wrong names. But failing memory does not per se establish want of capacity. In re Stewart’s Will (Sup.), 13 N. Y. Supp. 219; Delafield v. Parish, 25 N. Y. 9. There is evidence, also, of eccentricities and peculiarities in her actions, conduct, and sayings. She had a child born in her early life, some 30 or 40 years before her death, and which died while still in its early childhood. She seems to have been deeply attached to it, and manifested it. by her conduct, and speech, and even during these late years of her life would frequently speak of him, and compare him with young persons in a manner which, was eccentric and peculiar. She became less tidy in her dress and in conducting her household duties. She, in a measure, became incapable of doing her work in her usual manner, insomuch that relations, her sister Mrs. Harris and her husband, were engaged to assist her in her household work, and to so far as necessary care for her. They commenced about the time of her husband’s last illness, and continued until Thanksgiving in 1886, when she was taken to the home of Mr. and Mrs. Blauvelt, with whom she made her home during the remainder of her life. The testatrix was, as she grew older, gradually losing her physical and mental powers. But I do not think that she had reached that condition of mind that she vras incapacitated from making this will, and it is her capacity at that time that must apply. She had entered upon and was passing through the period of senility, but had not then- reached the condition that disqualified her from making her will. Matters were apt to slip from her memory, but, when the same came to her attention or thought, there is no real proof that she did not treat them and speak of them with reason and sense. It was only after its-dismissal that her weakness was shown by her failure to recollect. It appears, however, that one brother was dead when she made the will, but his residence was in a distant State, and it might well be that she had not then learned of it. There was no proof that she ever had. She gave to the attorney who drew the will, and -who became one of the subscribing witnesses thereto, the particulars for the provisions thereof. They appear to have been comprehensive. She remembered all of her immediate relatives, being her brothers and sisters, for each one is mentioned in the will,' and a bequest made to each. She named the specific amounts to be given to each, and the residue to Abram Blauvelt. The aggregate of the specific legacies of money is $9,500, which shows pretty clear comprehension by the testatrix of the amount of her estate that she had to dispose of. She names each brother and sister. It seems to me, it being clear that -no one but herself gave the directions for the provisions of the will, that she fairly comprehended and fully understood what she was doing. On the occasion when she executed the will, it was read to her, and she g'ave her assent that it was correct. She then executed it, and with no one present having any interest in its provisions or her estate. Her signature is remarkably well written for one of her age, and in itself bears evidence of good physical health, and also corroborates the claim of her sufficient mental capacity. Then, in corroboration and confirmation of all that took place in the preparation of this will, and the execution of the same, and to sustain its validity, it appears that the preparation and the charge of the execution. of the same were put into the charge of one of the most experienced lawyers in such matters within the county, and of whose fairness and integrity none has the slightest suspicion. He and his equally reliable son, also well experienced in such matters, testify as to the soundness of the mind and understanding of the testatrix at that time, and I am impressed that they would not have done so had there been any manifestation on the part of the executrix that indicated that she did not fairly comprehend and understand what she was doing.

The testamentary capacity is not, in the eye of the law, conditioned upon the possession of sound health or of great intellectual vigor or activity. Cornwell v. Riker, 2 Dem. Sur. 367. And incapacity to make a will cannot be inferred from an enfeebled condition of body or mind. Horn v. Pullman, supra* Proof that a testator, though somewhat forgetful, was capable of appreciating the nature of his act, and the proper objects of his bounty, of selecting the draughtsman, and of designating, without prompting, the one in whose favor he makes the will, was held sufficient to establish his capacity. In re Stewart’s Will (Sup.), 13 N. Y. Supp. 219 (citing Delafield v. Parish, 25 N. Y. 9) ; In re Stewart’s Will (Sup.), 15 N. Y. Supp. 601; In re Snelling, 136 N. Y. 515, 32 N. E. Rep. 1006. Even-entertaining a delusion in respect to- an heir is not sufficient of itself to justify rejection of a will. In re Fricke’s Will (Sup.), 19 N. Y. .Supp. 315. In Re Phelps’ Will, 19 Wkly. Dig. 293, it was held that the fact that a testator, instead of giving his property to his blood relations, bequeathed it to relatives of his wife, under the belief that the former were negligent of him, and careless of his comfort, will not of itself, unaccompanied by fraud, coercion or undue influence, be sufficient to invalidate his' will, deliberately made when in full possession of his faculties. Where a testatrix was 90 years of age, and very weak physically, but managed her affairs, and although there was testimony that her mind at times would wander, it was held that she had sufficient capacity. In re Gray’s Will (Sup.), 5 N. Y. Supp. 464. The like rulings were made in Re Bartholick’s Will (Surr.), 5 N. Y. Supp. 842; in Be Darling’s Will (Sup.), 6 N. Y. Supp. 191; in Re Bennett’s Will, id. 199; in Re Berrien’s Will (Surr.), 5 N. Y. Supp. 37, affirmed 12 N. Y. Supp. 585. In the latter case Judge Daniels wrote the opinion at General Term, and the case is very similar to this upon the facts. Testimony as to eccentric mental condition of the testator, and defective memory, was held, under the circumstances, insufficient to justify setting aside a will disinheriting the heir of the testator. In re Merriam’s Will (Sup.), 16 N. Y. Supp. 738. Among the cases hereinbefore cited there are several very much in line with this upon the facts and circumstances, and the condition and conduct of the decedent, and the decedent’s physical and mental condition; and, within the legal rules cited, the testamentary capacity of the decedent was held sufficient Horn v. Pullman, 72 N. Y. 269; In re Berrien’s Will, supra; Van Guysling v. Van Kuren, 35 N. Y. 70. The testatrix had entered upon the stage of her life known as senility, and her physical and mental powers were gradually failing and weakening, but it appears that she still retained the capacity, when an ordinary business matter was present to her mind, to understand, consider and dispose of the same intelligently and knowingly. It seems that she had sufficient memory to collect in her mind, without nromntin.Q1, the particulars or elements of the business transacted, and to hold them in her mind a sufficient length of time to perceive, at least, their obvious relations to each other, and "be able to form some rational judgment in relation to them. She was, therefore, within the rule that a testator who has sufficient mental power to do these things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and competent to dispose of his estate by will. Let findings and a decree be submitted accordingly.


source: Caselaw Access Project

author: Fitzgerald, S.

license: Public Domain

text:
      In re Roos’ Estate.

      (Surrogate’s Court, New York County,

      Filed June, 1893.)
    1. Wills—Construction-—Income.
    A testator, by the fifth clause of his will, provided for the investment during the lifetime of his widow of the surplus of his personal estate after carrying out the provisions of his will, and directed the division of the investment and its accumulations, together with his residuary estate, among certain designated persons upon the death of his widow. Held, that the provision was invalid, as involving an accumulation of the income and profits of personal property not authorized by 4 Bev. Stat. (8th ed.) p. 2516, pt. 2, tit. 4, c. 4, secs. 3 and 4.
    2. Same—Principal.
    Notwithstanding the illegality of the direction for accumulation of income, the provision for the ultimate division of the principal of the fund is not illegal.
    3. Same—Income.
    The distribution of such accumulated income is provided for by 4 Bev. Stat. (8th ed.) p. 2435, tit. 2, art. 1, c. 1, see. 40, declaring that when, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or ownership, during which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate, and such section applies to personal as well as to real property.
    4. Same.
    A provision in the will for the annual payment of $1,000 to the executors by certain devisees mentioned in the second paragraph of testator’s will does not, in itself, involve an unlawful, or any, accumulation, as such annual payments will go into the corpus of the residuary personal estate, unless otherwise appropriated for the lawful purposes of the will, and augment such corpus for investment and ultimate division and distribution.
    Construction of part of will of Augustus Roos, deceased.
    John B. Pannes, for executors; Deyo, Duer & Bauendorf, for Charles Roos and Frederick Roos (Robert E. Deyo, of counsel).
   Fitzgerald, S.

—The testator, by the fifth clause of his will, provides for the investment during the lifetime of his widow of the surplus of his personal estate after paying legacies and carrying out the provisions of his will, and directs the division of the-“investment” and the accumulations thereof, together with his residuary estate, among certain designated persons upon the death of his widow. The provision for investment for the purpose specified is invalid, as involving an accumulation of the income and profits of personal property not authorized by law. An accumulation of such income and profits is only allowed for the benefit of a minor, and must cease at the expiration of his-minority. 4 Rev. St (8th Ed.) p. 2516, pt. 2, tit. 4, c. 4, secs. 3, 4. The illegality of the direction for accumulation does not vitiate the provision for the ultimate division of the principal of the fund. That is valid. The disposition of the surplus or accumulated income is provided for by the statute. It declares, that when, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons; presumptively entitled to-the next eventual estate. Id. p. 2435, tit. 2, art. 1, c. 1, sec. 40. This section, although embraced in the title in respect to real estate, has been held applicable to personal as well as real property. Kilpatrick v. Johnson, 15 N. Y. 322; Gilman v. Reddington, 24 N. Y. 19. The parties in the present instance who are entitled to the surplus or accumulated income by virtue of the provision of the statute cited are those among whom the residuary estate is to be divided, and they share in the income in the same manner and proportion as they share in such estate. Kilpatrick v. Johnson, 15 N. Y. 322; Gilman v. Reddington, 24 N. Y. 19. The provision for the annual payment of $1,000 to the executors by the devisees mentioned in the second paragraph of the will does not in itself involve an unlawful, or any, accumulation. The annual payments, as made, will go into the corpus of the residuary personal estate, unless otherwise appropriated for the lawful purposes of the will, and augment such corpus for investment and ultimate division and distribution. The result, may be an increase of the surplus or accumulated income of such estate. How such surplus is to be dealt with I have already indicated. There is no doubt that the annuity to decedent’s widow is entitled to be paid from the income of decedent’s estate not otherwise disposed of, including such part of the income as may come from the investment of the amounts required to be annually paid under the second clause of the will. In case of any deficiency of income of one year to pay the annuity for that year, the surplus income of the succeeding year could be used to supply the deficiency. Whether any of the surplus income of a previous year is to be retained to meet any insufficiency of income of a succeeding year to satisfy the annuity is unnecessary to determine, as the facts or circumstances, as far as they are disclosed, do not justify any apprehension of such deficiency. Among the beneficiaries entitled to share in the surplus income are the two devisees named in the second clause of the -will, and who are obligated by the provisions of this clause to pay to the executors annually the sum of $1,000. Ho question is raised as to these provisions save the one respecting accumulation, and that has been disposed of. The share of these devisees in the surplus income should be withheld until they shall have discharged the amounts due and unpaid of the sums required to be annually paid by them. The appropriation of their shares towards the discharge of their obligation I see no objection to, and it may be properly made. As far as it appears, the whole surplus income now in the hands of the accountants can be distributed. The parties, however, in view of what has been said, can doubtless agree on the amount to be distributed.


text:
      In re Hall’s Will.

      (Surrogate’s Court, New York County,

      Filed July, 1893.)
    1. Will—Knowledge of contents. >'

    When the execution of a will has been proved, the presumption is raised that testatrix knew its contents.
    2. Same.
    In such case, however, if there is evidence of fraud and undue influence, affirmative proof of knowledge by testatrix of the contents becomes necessary.
    3. Same.
    When the evidence shows that live days before the execution of her will the testatrix heard it read to her, and that at the time of exeeu- . tion she declared in the presence of witnesses that she knew its contents, and that at the time of such execution she was of sound mind— held, that this constituted affirmative proof that testatrix had knowledge of the contents of the will.

      4. Same—Mental capacity at execution.
    If when testatrix executed her will, she fully comprehended the business she was about to transact, and had in view the nature and extent of her possessions, and knew those who had claims upon her bounty, and acted of her own free will, it is immaterial that about eight days previously she had recovered from a stupor which the doctor pronounced coma, and which had lasted a few days.
    Probate of will. Granted.

      D. McLean Shaw and Mellen & Devernay, for proponent; Hornblower, Byrne & Taylor, for contestants.
   Fitzgerald, S.

The paper propounded as the will of the decedent, Mrs. Lisinka Hall, was executed in the evening of December 20, 1892. By it she bequeathed $1,000 and a gold watch belonging to her late husband to her- nephew William L. Hall, and $1,000 to be expended by her executor for a window in the Presbyterian church at North East, Pa., as a. memorial of her late husband. She devised the house and lot No. 83 East Tenth street, in this city, to her nephew Elmer E. Boss, and directed that the residue of her estate be converted into money, and the proceeds be divided equally among her nieces Mrs. Loomis, Mrs. Buckle, Mrs. Force and Mrs. Boss. The legatees designated as nephews and nieces were not of kin to Mrs. Hall. They were a nephew and nieces of her husband, except Boss, who was the husband of one of the nieces. The paper names E. Van Ness Heermance, an attorney, sole executor, and revokes all former wills. The house and lot devised are leasehold property. An answer to the petition for probate was filed March 25, 1893, by Joseph C. Hurley and Mark W. Potter, the executors named, one in a will executed November 18, 1890, and both in a codicil thereto executed October 14, 1892. It alleges that the execution of the paper propounded was not the free, unconstrained and voluntary act of the decedent, and that she was at that time mentally incompetent to make a will. In the determination of the issues thus raised it is necessary to consider the testimony of persons present .at the execution of the paper, the: relation of the decedent to the various parties, her age, her personal characteristics, the condition and extent of her estate, her surroundings, and the probabilities of the paper representing her real wishes. The first witness examined was Benjamin F. Eberts, a subscribing witness. He states that on the evening of December 20, 1892, he and Theodore P. Bucher, another subscribing witness, were in the reception room of Mrs. Hall’s house, No. 83 East Tenth street; that Heermance, the attorney, came, in about 9 o’clock, and a half hour 'after the third witness, Dr. Sheppard, who was Mrs. Hall’s attending physician, arrived. He spoke to them, and then went to her apartnemt on the floor above. When he returned, Heermance went up, leaving the others in the reception room, in conversation, and on returning he asked them up. Eberts states that, when they entered the room, Mrs. Hall was in bed, with the will in her hand. That Bucher asked her if she thought she could write, and she said “Yes,” she thought so, and worked her fingers as if in writing. That Dr. Sheppard asked her if the paper was her will, and she said “Yes.” That Bucher dipped the pen in the ink. She took hold of it and started to write, but the pen was not satisfactory; and Bucher asked her if he could assist her, and she made an affirmative reply. That Bucher then took hold of her hand, and helped her to write her name, and when the signature was half completed she looked up, as if she wanted more ink, and Bucher filled the pen again, and assisted her to complete the signature. Heermance then asked her if the paper was her last will and testament, and if she desired Bucher, Dr. ¡Sheppard, and Eberts as witnesses to the will, to which she responded, “Yes, I do,” and then each signed the paper in her presence. Dr. Sheppard states that on the occasion he asked Mrs. Hall if the paper was her will, and he said he hoped it would be satisfactory to her, and she said, “Yes;” that, after it was signed by her, Heermance asked her if this was her last will and testament and if it was all right, and she said “Yes.” Bucher testified that, when the three witnesses and Heermance reached Mrs. Hall’s room, she had the will in her hand. He .■agrees with Eberts in his statement of the facts that occurred, ■and states, in addition, that he procured a small mirror, on which the will was placed, and that after she had completed her signature he asked her if the paper was her last will and testament, and if she knew its contents, to which she answered “Yes” to both questions; that Heermance then read some clauses of the paper, and in response to a question by him, if she desired them to sign as witnesses to her signature and seal, she answered, '“Yes.” Each of the subscribing witnesses testify that Mrs. Hall was of sound mind, and that she acted without restraint. They did not, however, hear the will read to her, and it is apparent from their testimony that no word was used by her, except the affirmative expression, “Yes,” in response to questions put to her, and which, under the laAV as declared by. our courts, was a substantial compliance with the requirements of the statute of wills.

If, at the time of the execution of the1 paper, Mrs. Hall knew its contents, a clear, prwna facie case has been made out, to sustain probate. But contestants’ counsel claim that the testimony shows that Mrs. Hall had not at the time been told the contents ■of the paper, or, if she had, she did not have the mental capacity to execute a valid will. Under section 835 of the Code, Heermance was not a competent Avitness; but, as no objection was made to his testimony, he Avas examined. In determining the controversy, however, I shall gave no consideration to his eAÚdence in respect to any interview with the Avitness and decedent respecting instructions for, and adAÚce given with reference to, the preparation of the Avill, or statements involving communications not made in presence of other witnesses.

To sustain the probate of a will, it must be shown to' the satisfaction of the trial court, by direct proof, or as a legal inference from the evidence, that the testator was competent to make it, and knew its contents. There is abundant authority in the decisions of the courts, both in England and in this country, that in the case of a competent testator, where there are no circumstances shoAving want of good faith, it is not necessary to prove that the testator gave the instructions for the will, that he read it, that it was read to him, or that he Avas made acquainted with its contents at the time of execution. In Pettes v. Bingham, 10 N. H. 514, it was held that a testator is presumed to have knowledge of the Avill he has executed; and if it is alleged that he has not knoAAdedge, or that he was induced to execute it by misrepresentation, the burden of proof is Avith those who make the objection. In Carr v. McCamm, 1 Dev. & B. 276, the court held that under 'the law it was not incumbent on the proponent to produce other and distinct evidence that the testator knew the-contents of the paper, above what presumptively arose from its-formal execution. In Worthington v. Klemm; 144 Mass. 167, 10 N. E. Rep. 522, the testator had made a previous will, and had requested the. draughtsman to make some changes in it, and to bring a new will. This was done. The testatrix signed it in the presence of the witnesses. The draughtsman then offered to read it to her, and she declined, stating that he could do it some other time, and requested him to keep it in his custody, and it remained with him until her death; she never having read it, nor was it ever read to her. The will was admitted to probate. In Vernon v. Kirk, 30 Pa. St. 218, the court held that when the execution had been proved the law raised the presumption, affirmatively, that the testatrix knew the contents of the paper, the presumption being drawn from the ordinary conduct of mankind; that men did not ordinarily sign papers without a knowledge of what is embraced within them; and this is, true alike of men who can read, and those who cannot. But when fraud appears, and undue influence is charged and proved,, affirmative proof of the knowledge of the contents of the paper set up as the will may be necessary, but in no other case; and the cases in which affirmative proof of the knowledge of the contents has been held essential, after the execution of a paper has been shown, are, almost without exception, those in which such proof has been needed as an answer to a charge of imposition upon the testator.

Under the principles of law thus laid down, I must hold, presumptively, and without reference to the extrinsic evidence which I shall hereafter advert to, that Mrs. Hall knew the contents of the instrument at the time of its execution. But it is claimed by the contestant that this- presumption is negatived by evidence of the existence of fraud and undue influence. This makes it necessary to consider the evidence adduced. Mrs. Hall was 71 years of age, and had been a widow for 10 years. She Was by birth a Russian, but had been a long time away from’ her native country. She spoke English and German very fluently, was educated, and was shown to have some critical knowledge of the literature of the German language. She had inherited or had acquired a considerable estate, which she had lost through bad investments made by her husband; but she died possessed of the leasehold property, No. 83 East Tenth street, and some securities contained in a safe-deposit box, the value of which has not been proven. She was childless, and, so far as appears,, she left no next of kin. The successive testamentary instruments-, as they have been disclosed on the trial, are important to consider in deciding the issue of fraud and undue influence.. It appears that in 1889 she executed a will, the general scheme-of which is like the paper under consideration, except that Ross, was not named a,s a legatee. In November, 1890, she executed another, in which Hurley, one of the contestants- in this proceeding, was the principal beneficiary. To this, in October, 1892, she made a codicil, by which Hurley’s beneficial interest was increased. The will and codicil, in which Hurley was the principal legatee, were offered for probate, but- none of the documents was formally put in evidence. They were, however, referred to in the examination of the witnesses, and treated, at least as far as concerned the purpose for which they are now-adverted to, as if before the court. A little over two months-after the date of the codicil to Hurley she executed the paper now under consideration. Of equal importance are Mrs-. Hall’s declarations of a testamentary purpose. In the summer of 1892, and at different periods—one as late as five days before the execution of the paper propounded—she is shown to- have made statements indicating dissatisfaction with Hurley, and even denying that she had made a will in his favor, and stating that if she had she did not know it. She said, however, that she had signed some paper, the nature of which she did not understand, and feared she had signed away her property to him, and she desired to know how it could be avoided. Two of the parties-to whom she made such statements, in the summer of 1892, were Mr. Vose, an officer of a safe-deposit company, and Mrs. Win■ston, an old friend. In August, 1892, she stated to Hr. Force, the husband of one of the legatees of the residuary estate, as a •secret, that Hurley had made indecent proposals to her, and had held that fact over her as a threat. Yet, in September or October, Force states that Mrs. Hall told him that she had made a will leaving her property to Hurley and her housekeeper. Then, prior to Thanksgiving day (which was after the execution of the codicil to the Hurley will), she told him that Hurley had ■dogged her into signing the will, that she wanted to break it, ■and that she had been to some bank or safe-deposit company to see about it. She further said she did not want Hurley to have any of her property, and would go home and malee a new will. These declarations indicate a change in the feeling she had entertained for Hurley which would sufficiently account for her ■determination to revoke the instrument by which he was to be benefited. Nearly coincident with these expressions of dissatisfaction with Hurley were declarations of Mrs. Hall of a purpose to provide for the nieces of her husband. Later, in 1892, she had begun to tire of the cares of her house, and asked the husbands of two nieces to take it., and each declined. In November she began a negotiation with Ross, the husband of another, to that end; and a lease was executed by Mrs. Hall to him, ■which was superseded by another that went into effect December 1st, and a few days after Mrs. Ross removed to. the house, her husband having been in possession from the 1st. Early in December Mrs. Hall’s severe illness began. Then followed events which resulted in a new will—the one now in contest. Mrs. Hall had become acquainted with Heermance, the proponent, through an introduction by Ross. It appears from the testimony of Bucher that the engrossed will, as it now is, with the exception of the last sheet, was produced and read to Mrs. Hall on the night of the 15th of December, when Dr. Sheppard and Bucher, two of the subscribing witnesses, and a Miss Oaughey, were present; but, as stated by Bucher, in the reading of the paper, the name of a legatee on the last sheet was wrongly read, the decedent understanding that the bequest of a share of the residuary estate was given to Mr. Buckle, insteaa ol to his wife, she, the testatrix, under this impression, tore the sheet This necessitated the re-engrossment of that sheet, and for that purpose it was given to Heermance, who was in the parlor below. Dr. Sheppard did not testify to the reading of the will. On "the same evening another paper, declaratory of Mrs. Hall’s feelings towards Hurley, came into being. It probably followed the reading and the mutilation of the last sheet of the will. As the will could not be executed, she asked those present to be witnesses to her statement that the will executed in favor of Hurley was wrong. Bucher suggested that such a statement should be in writing, and Miss Caughey wrote on the back of a blank bill-head of Mrs. Hall’s the words: “The will made out to J. 0. Hurley is all wrong, and I hereby certify to that fact this 15th •day of December, 1892, in the presence of witnesses.” At the -end of this writing she wrote her signature, and Dr. Sheppard, Mr. Bucher and Miss Caughey attested it as witnesses. It does not certainly appear that the reading and tearing of the will preceded the signing of the memorandum which she supposed amounted to a revocation of the will in favor of Hurley, but it is a reasonable inference that such was the order of the two acts from the fact that both documents were there on that night. Miss Caughey was not examined as a witness, as she had gone to Europe, and could not be produced. Hence, I must determine the fact in the light of the testimony of Bucher, with such support as the circumstances of the case afford. He has shown ■extraordinary lapses of memory, to say the least, in respect of •dates and events. This is also true of Dr. Sheppard; and each, by a very unusual coincidence, in his first examination, did not refer to the events that took place on the night of the 15th, when it was claimed that the engrossed will was tom, and the paper written by Miss Caughey was signed by the decedent and witnesses. Dr. Sheppard and Bucher had no abiding interest in this case to prompt their memories in respect to matters collateral to the execution of the will. With one near 70 years old, and the other over 60, it was not to be expected that either, in the midst of a severe and searching cross-examination conducted by able counsel, would or could at once recall every event connected with matters prior to the execution which might be a matter of primary importance. As Dr. Sheppard states that'he made no memorandum of the medical history of the case, by which he could fix dates, but depended upon his unaided recollection to recall its features, he Would not be apt to take any greater precaution in a matter not connected with his profesr sional duties. In respect to the execution, his memory had to be jogged before he recalled one important point that he did not at first state—the request by Mrs. Hall for the witnesses to sign the paper. Bucher, however, if he is to be believed, had data in his memorandum book to which he was able to refer after his. first day’s examination, and thus correct the dates of certain events, and (of his own motion) he made the corrections. The-attention of neither had been drawn in his examination to the-events that took place prior to the execution. Bucher, late in the trial, testified that he did not state the facts of the reading of the will, and the destruction of the last sheet, and the signing' of the paper declaring the will to Hurley “all wrong,” because he was not asked. There is nothing improbable in the explanation, coming, as it does, from a disinterested witness. Ho effort was made to impeach the credibility of Sheppard or Bucher, except by certain self-contradictions and inconsistent statements made by them, and their failure to recall at least one fact of special importance—the reading of the will on the night of the 15th. There is no suggestion that each is not a reputable citizen. While I believe that when Heermance first took the stand he made his testimony to fit the dates testified to by Dr. Sheppard in respect to Mrs. Hall’s illness, and the changes which took place, and make it harmonize with Dr. Sheppard’s narrative of Mrs. Hall’s condition, I do not think that Dr. Sheppard and Bucher recast their testimony, as claimed by contestants’’ counsel, to suit the exigencies of the case raised by the later-statements of Heermance. As their uncontradicted evidence is consistent with Mrs. Hall’s declarations of a testamentary purpose, testified to by Mrs. Bernard and her daughter, and by Mrs. Winston, and with the provisions in the will of 1889, and with a changed state of feeling towards Hurley, and inconsistent with any other theory, I am led to the conclusion that on the night of December 15 she did hear the 'will read, as stated by Bucher, and that, as testified to by Smith, the engrosser, it was the identical paper now under consideration, except the last sheet, which contained the same language as was used in the re-•engrossment. In addition to this, at the time of the execution, .she declared, in the presence of the witnesses, that she knew the 'contents of the will. With these facts proven, I need not- rely on the legal presumption of knowledge by her of the contents of the will, if she was at the time of sound mind.

Mrs. Hall’s mental condition on the night of the 20th of December thus becomes a question of the first importance. I will first consider whether the contestants have adduced affirmative proofs to overcome the testimony of the subscribing witnesses. On that occasion, Mrs. Hall made the simple response, “Yes,” to the questions put to her respecting the execution of the will. Such response, in connection with the questions, constituted a sufficient declaration of the character of the paper, and a sufficient request for the witnesses to1 attest it. Each of the subscribing witnesses, when first examined, had not heard the testimony of the others. I was very favorably impressed with the testimony of the young man Eberts. He had come to reside in the house on the 15th of December, the very day on which the memorandum written by Miss Caughey was signed, and he seems to have been asked to be a witness because of his accidental presence on that occasion. He states that he had heard nothing about the execution of a will until that evening. Ho attempt has been made to impeach his testimony, and the only fact that would suggest a possible bias is that he was a friend of Eoss, one of the legatees. If there was a conspiracy, as claimed by the contestants, the conspirators would not be likely to take in a young man just of age, a stranger to some, and only a recent acquaintance of others, except Eoss. He was the first witness, and his testimony was apparently ingenuously given. Against his evidence is the testimony of Mary Bristol, a woman, who was employed in the house as a domestic from the 16th to-the 20th of December, during which time she admitted that she saw' Mrs. Hall but twice, and during the residue of the month, was more or less in attendance upon her until January 1st, when she became her nurse; of Hopkins, a man who attended upon her five days from the lYth to the 23rd day of December, when he was discharged; of Johnson, another man, who did odd jobs about the house before and after the date of the will; and of Dr. Vedder, who was called in by an acquaintance of Mrs. Hall’s on the llth of December, and testified that he found her unable to answer his questions. He says he stayed not more than 15 minutes, and others say that he was there as long as that. There is no doubt that, some time during December, Mrs. Hall was in such a state of unconsciousness, for a period of a few days, that Dr. Sheppard pronounced it coma. He first fixed the period as between the 11th and 15th of December, and later in the trial, when recalled, he corrected the dates, stating that on the 12th she had recovered from the stupor. If, when she signed the will, she fully comprehended the business she was about to transact, and had in view the nature and extent of her possessions, and knew those who had claims upon her bounty, and acted of her own free will, it matters not what may have been her condition before or after. It appears by the testimony that, early in January, Mrs. Hall had recovered from her serious illness, and was up and about the house, and even went helow, to the dining room, to her meals. She received those who called upon her, conversed with visitors and the inmates of the house, signed checks w'hicb were produced in evidence, and there is abundant proof that, until a few days before her death, her mind was generally unclouded. I do not recall any evidence given that shows that the subject of her will was during that time referred to, but she must have known the fact that she had executed the paper, and, if it did not satisfy her, she had abundant opportunity to revoke it, or make another. The uncontradieted facts bearing upon the question of Mrs. Hall’s mental condition, and her knowledge of the contents of the will, on the night of December 20th, are these: In 1889 she executed a will in favor of her husband’s nieces, whom she held in high esteem, though they were not of kin to her. In 1890 she made another-in favor of John 0. Hurley, a stranger to her blood, and with, no family connection. Beginning in the summer of 1892, her declarations show that Hurley had fallen into her disfavor. Hevertheless, in October of that year she executed a codicil by which the benefaction to him was increased. Later she stated that she had been dogged by Hurley into making a will for him, and continued thereafter to reiterate her purpose to care for her husband’s nieces. Early in December she became seriously ill, and some time during the month—probably the first half—for a period of a few days she was more or less unconscious. On the evening of the 15th a paper was produced to her, purporting to be a will, which, it is claimed, on the testimony of one witness, was read to her in his presence, and in the presence of two-others; that she on that occasion tore the last leaf, because of a fancied misstatement of her wish as to one beneficiary named in the residuary clause, which made it impossible to execute the-paper that night; that she then asked those present to be witnesses to her statement that the will to Hurley was all wrong, and on the suggestion of one of them a paper was written, stating-what she had said. To this she wrote her name, and the signatures of Dr. Sheppard, Mr. Bucher, and Miss Caughey, a friend of Mrs. Hall’s, now absent in Europe, attest it as witnesses. On a subsequent evening she spoke to Eberts of her gratitude to-Boss for his kindness to her, and stated that he should be paid for it. On the night of the 20th, according to the uncontradicted testimony of Eberts, he and the other subscribing witnesses, Dr. Sheppard and Bucher, "went to Mrs. Hall’s room, where they found her in bed, with the will under consideration-in her possession, it not being claimed that she had then had it more than a few minutes. The formalities of execution were-gone through with. Mrs. Hall’s signature shows a deteriora.tion from that made on the paper signed on the evening of the 15th, and it is conceded that Bucher held her hand and assisted her in making it. Eberts testified that on that occasion Mrs. Hall was as bright as he had usually seen her on the preceding -evenings when he was with her in her sickness;, and that she appeared to be of sound mind, and acted free from restraint. When the paper was produced for probate it was found to conform in every respect to her previously expressed declaration of :a purpose to provide for the nieces and for Ross, he and his wife having cared for her from early in December to the date of the will. On these facts, either conceded or testified to by Eberts, who was a stranger to all the parties, if she was of sound mind, the presumption is raised that she knew the contents of the paper at the time of its execution, and that it reflected her wishes. It was incumbent upon the contestants to overcome the -case thus made in favor of the will. I was greatly impressed with the argument of the learned counsel for the contestants, ••and, after reading the volume of testimony, I read his argument •again with equal interest. But, after a careful consideration •of the whole case, I am compelled to decide that the contestants have not sustained their allegations. The interest of Ross, Mrs. Ross, Mrs. Buckle and Mrs. Force was su.ch that the testimony they gave may have been biased, but Dr. Sheppard and Bucher ■confirmed the testimony of Eberts in respect to the facts that occurred on the night of the execution of the will. Ho attempt by extrinsic evidence has been made to contradict their statements. On full consideration I am satisfied that their testimony is true, in respect to the essential facts necessary to establish a will, and that the formalities of the statute have been ■complied with, and that the paper is entitled to probate; A decree may be presented accordingly.


author: Sherman, S.

text:
    In the Matter of the Estate of William O. Strong, Deceased.

      (Surrogate’s Court, Chautauqua County,

      Filed November 6, 1893.)
    Executors and administrators—Personal claim—Estoppel.
    By the third clause of his will the testator bequeathed to the claimant, Abram H. Johnson, one of his executors, certain farming tools and other personal property of the value of about sixty-five dollars, with the following provision: “The foregoing bequests to be in full com-
    pensation for any and all care said Johnson may render me in my old age.” After the will was probated and said Johnson qualified as such executor, he accepted and received all the property so bequeathed to him, as appears by the inventory and account verified and filed, and other evidence. Held, that such claimant is estopped from making claim for care and services rendered to testator in sickness in his old age.
    Judicial settlement! of executor’s accounts.
    S. P. Fox, for claimant; Towne & Record, for Albert J. Homan and other contestants; A. W. Hull, special guardian, for minors,, contestants.
   Sherman, S.

The testator died January 26, 1892, of the age of over eighty-two years. His wife died May 14, 1881. - Decedent left him surviving the following heirs and legatees: Celestia May Johnson' granddaughter, minor, an only child and heir of Abram H. Johnson, said executor; Jenny Pattyson, full age; Emma Osborn, full age; Henry Homan, full age; Edgar Homan and Albert Homan, both minors. All the above named are legatees, and the last five named are grandchildren of the testator and children of Albert J. Homan, one of the executors, and a son-in-law of the testator.

The testator by the first clause of his will directed that all his funeral expenses and just debts be first paid. The will was dated December 16, 1890, and probated June 7, 1892.

By the second clause of his will he bequeathed to his granddaughter, Celestia May Johnson, only child of said Abram H. Johnson, executor and claimant, his parlor stove, parlor chairs? and center table.

' By the third clause of his will he bequeathed to his said sod-in-law1, the claimant, his bay mare, called Fannie, his lumber wagon, cook stove and his one-half interest in his heavy double harness, plow, cultivator, harrow, berry crates and baskets, the other half interest being owned by said Abram H. Johnson. The value of the testator’s interest in said property, as appraised,, being about- sixty-five dollars. Immediately following the description of said property, and in the same clause, the will reads? as follows: “The foregoing bequests to be in full compensation for any and all care said Johnson may render me in my old age.”

By the fourth clause of his will the testator bequeathed all the rest of his household goods, one-half to his said granddaughter, Celestia Hay Johnson, daughter of said Abram H. Johnson, claimant, and the other half to his five grandchildren above-named, children of the said other executor, Albert J. IToman, share and share alike.

By the fifth clause of his will he bequeathed his gold-headed cane to his said son-in-law, Albert J. Homan, executor.

By the sixth clause of his will he appointed his two .sons-in--law, Abram II. Johnson and Albert J. Homan, the executors of' his will, and authorized and directed them to sell all the residue- and remainder of his real and personal property, and to divide the proceeds thereof between his said six grandchildren, viz. Celestia May Johnson, Jennie Pattvson, Emma Osborn, Henry Homan, Edgar Homan and Albert Homan, share and share alike, and in pursuance thereof the said executors sold the real estate owned by the testator at his death, consisting of an improved farm, with farm buildings thereon, and containing 35-acres, for $3,125, and delivered to the several legatees named in his will the personal property bequeathed to them respectively and sold the remainder of such personal property as directed by the will.. He directed that his executors should not charge any commissions for administering his estate, and they have not done so in their account as rendered and filed. He directed that the expenses of administering the estate should be paid opt of it.

The testator owed no debts at his death exceeding twenty-five dollars, and his personal property was appraised at $849.95, as appears by said account filed March 26, 1893, so made and verified by both executors, and is admitted by all parties interested to be correct, and shows a balance of $3,205.87 in money for distribution to the legatees as provided by said will, less the expenses of the executors in administering the estate.

On the hearing herein for tire settlement of said account and for distribution of said funds to the legatees as directed by the will, said Abram H. Johnson, co-executor, presented his personal claim against the estate, amounting to $1,748.

The testator at his death owned an improved farm with dwelling house and bam and other farm buildings thereon, which the executors have sold as above stated, for $3,125. The claimant owned a farm of fifteen acres adjoining, with no buildings thereon, used for pasture, meadow and cultivation, of the value of less than one-half of the thirty-five acres owned by the testator.

On the hearing herein no witnesses were sworn on the part of the contestants, except Albert J. Homan, who testified that all the personal property bequeathed to his co-executor, Abram H. Johnson, had been accepted and received by him.

It appeared from the evidence, and was not contradicted, that the testator and his son-in-law, Abram H. Johnson, had worked the two farms and used the same and the products thereof in common, and divided the net avails thereof, after paying for hired help on the farms and in dwelling house, share and share alike, up to the time of the death of the testator, a period of over twenty-five years; that during said time Johnson and bis-family had lived in the dwelling house and with the family of the testator, all eating at the same table, and that no account was made at the time between them for the board and support of them or of their respective families, nor for pay to their hired help on the farms or in such dwelling house. Evidence of this is confirmed by the account and inventory made and verified by both executors and filed.

On the hearing herein the claimant withdrew all his claims as stated in his personal account arising before six years preceding the testator’s death, January 26, 1892. These claims so withdrawn covered a portion of the claim of $624 for helping to attend to the comforts and care of the decedent from November 1, 1885, to November 1, 1891, covering 312 weeks at two dollars per week.

The several claims of the claimant for building a hog pen and three additions to house and furnishing lumber for same, and for helping build bam and furnishing one-half the lumber and shingles, arose over six years before the death of the testator, amounting to $520; and a portion of them from fifteen to twenty-five years before his death. The same is trae for setting out pear and peach trees. In addition to the above the claimant demanded $144 for services in care of decedent during six years prior to his death, and three hundred dollars for care and services in his last sickness.

The contestants duly objected to all such claims in their verified written answer, and alleged that same were unjust, and that same were outlawed except those arising during six years preceding his death.

The testator was confined to his bed by sickness during about two months preceding his death and was sick on an average about one month in a year, during about five years before he died. Hr. Johnson assisted in taking care of the testator when sick and took the principal care of him in his last sickness.

Alice Morrison worked there in the house as a domestic' in his last sickness and has been paid out of the estate for her services $16.50, as appears by the evidence and by schedule “D” as verified by the executors and filed.

The respective families of the claimant and testator consisted of the testator and his wife, who died May 14, 1881, and who assisted in doing houseworlc for the two families until about the time of her death. The family of the claimant consisted of his wife, who died June 1, 1890, and was sick during the last year of her life and unable to do any.work, and the adopted daughter of the claimant, Cora Donnahue, who went into these two families to live when she was less than a year old and was supported, educated and clothed by the claimant and the testator until about November 20, 1891, she being then about twenty years old; she made no charge for her services, and nothing was paid to her therefor, except in her support. The two families lived together as one family.

All the net products of the two farms after paying expenses of .conducting same, including hired help, medical attendance and burial expenses for the two members thereof who died as above stated, were equally divided between the claimant and the testa^ tor up to the time of his death, January 25, 1892, except for medical care and attendance upon him, which has since been paid out of his estate. No claim was made that the testator did not do his share of the work on tire two farms during twenty-six years preceding his death, excepting the last five years of that time he was sick on an average of about one. month in each' year and unable to work, but otherwise assisted in the work and management of the business.

The witness, Alice Morrison, niece of the claimant, testified to a conversation with her father at his residence in 1891 in which the testator said that Mr. Johnson should have his pay for what he had done there, and that May, meaning the daughter of the claimant, should have half of the property. Abbie Johnson, the sister of the claimant, and who was present at the same conversation, testified to same conversation substantially as did the witness Alice Morrison; this conversation was a few months after the testator made his will. Alice Morrison also testified that she was present at one time during the. last sickness of the testator and heard him say that May should have half of the property, and that Mr. Johnson should have his pay; nothing further.

Abbie Johnson, sister of the claimant, testifying to the same conversation as Alice Morrison above, swore that the testator said: “Oh, May shall have half!” But the witness did not say anything about the claimant haying any part of the property, or any pay for his services.

.The testator, after bequeathing, as above stated, to his granddaughter, Celestia May Johnson, his parlor stove, parlor chairs and parlor center table, bequeathed to the claimant the articles mentioned in the third clause of the will and of the value of about sixty-five dollars, as stated by him, “to be in full compensation for any and all care said Johnson may render me in my old ageAnd then he further bequeathed one-half of all the rest of his household goods, not before disposed of, to the daughr ter of the claimant, Celestia May Johnson, and the other half to his five grandchildren, being the sons • and daughters of his other son-in-law, Albert J. Homan, co-executor, share and share share alike, and after giving his gold-headed cane to Albert J. Homan, his son-in-law, he, by the sixth clause of his will, bequeathed and devised all the rest of his real and personal property to his six grandchildren, above-named, share and share alike and directed his executors to sell the remainder of his real and personal estate, which they have since done, and make distribution accordingly, which they have not yet done.'

The testator thus disposed of his entire property by his will.

This appears to have been a just, equitable and sensible disposition of the testator’s estate, and the claimant having accepted its provisions, as appears in his unverified account and inventory, and by the uncontradicted evidence of his co-executor, Albert J. Homan, I am of the opinion that he is in law estopped from recovering any part of his personal claim herein; he having accepted the property bequeathed to him upon the conditions named with full knowledge thereof, such act must be regarded as an accord and satisfaction of his claim. To allow any part of it would be unjust to the other legatees.

The claimant has not returned, or offered to return, the personal property bequeathed to him under the third clause of the will, and it must be held that he has accepted the bequest under 'the conditions earned; and this without regard to the value of the property so bequeathed to and received by him. Caulfield v. Sullivan, 85 N. Y. 153. Chamberlain v. Chamberlain, 43 id., 424, 442-3.

I direct decree disallowing the personal claim of Abram .H. Johnson, with seventy dollars costs against him personally; and also confirming the account of the executors filed March 26, 1893, with costs and expenses on accounting payable out of the «estate, to be taxed and adjusted, and inserted in decree on final accounting and distribution to legatees, together with twenty •dollars costs allowed to A. W. Hull as special guardian for minors in proceedings on said personal claim, payable out of the estate.


author: Kennedy, S.

text:
    In the Matter of the Assessment of the Collateral Inheritance Tax on the Estate of Eliza C. Doty, Deceased.

      (Surrogate's Court, Madison County

      Filed December 27, 1893.)
    1. Tax—Collateral inheritance.
    Where a clause in a will recites that a legacy is given in view, and in consideration of the legatee’s unremitting care and attention to the testatrix during her years of sickness without asking any reward for services rendered, such legacy is taxable.
    :2. Same.
    In order to be exempt, the legacy must be in payment of a legally enforcible debt.
    3. Same.
    The court, in ascertaining whether a legacy is, or is not, taxable, has the right to determine, not only from the provisions of the will, but by extrinsic facts, if necessary, whether it is a voluntary gift or in payment of a legally enforcible debt. .
    -4. Same.
    In such case, the legatee, if he desires to escape the payment of the tax, must establish his debt against the estate, have it paid by the executor in the usual manner, and let the legacy to him go to the residuary estate.

      Harvey S. Bedell, for appellant; Charles A. Hitchcock, for People.
   Kennedy, S.

—This proceeding is an .appeal from the appraisal and assessment of the collateral inheritance tax of $115.22, upon the legacy given by the will of the deceased to Dr. C. C. Reid, of Rome, N. Y.

The subdivision of the will upon which the question arises, is as follows: “I hold a paid up-insurance policy on my husband, R. S. Doty’s life, of $2,320. I now add $180, making; the sum of $2,500, which I freely give and bequeath to my true friend, Dr. C. C. Reid, of Rome, N. Y., in view and in consideration of his unremitting care and attention to me during my years of sickness without asking any reward for services rendered, as he knew mv' means were somewhat limited.”

The appellant insists that the legacy in question is not taxable upon the ground that he had in fact, rendered professional services for the deceased at some period of her life for which she had not paid. Upon the hearing he offered to prove such services, the time when, the amount thereof and the circumstances under which they were performed; but the surrogate-held that the proof offered to establish these facts was incompetent, and excluded it; so that the only question to be determined is whether the legacy, on account of thei reasons assigned in the will for the bequest, is taxable. We must hold it liable-to the tax assessed for the following reasons: The appellant did not appear before the appraiser and establish any indebtedness on the part of the deceased to him for professional services or otherwise, nor did he, upon the appeal before the surrogate, prove that he had any valid debt against her. Ho indebtedness being established which could be enforced against her estate, the legacy was a voluntary gift on the part of Mrs. Doty, and, therefore, is not exempt from the payment of the tax prescribed by law.

The estate which passes to an heir or legatee, and upon which a fax is to be assessed, is the amount which remains to be distributed after all • the debts and funeral expenses are paid. Hence the existence of a claim which the testator might be honorably but not legally bound to pay is insufficient; it must be one to which there is no legal defense and which the creditor can enforce by legal proceedings. If this were not the legal rule, a testator might either designedly or otherwise defeat the object of the statute and render it practically useless by simply reciting in his will that the legacy is in consideration of care, attention, kindness, favors received from, or services performed by, the legatee at some period of the testator’s life. The reasons-which a testator may give for making a legacy, while appropriate in explanation of his motives, cannot be made use of either by himself or his legatee to shield a legacy from taxation, because a legacy implies a bounty and not the payment of a debt. Hence the court- in ascertaining whether a legacy is taxable or not has the right to determine, not only from the provisions of the will but by extrinsic facts if necessary, whether it is a voluntary gift or in payment of a legally enforceable debt; and if it appears that the legacy was pure gratuity, the legatee, if he accepts it, must -take it subject to the conditions upon which it is given, and subject also to the conditions which the law has, impressed upon it The payment of a tax cannot be avoided by the mere phraseology of the will. Declarations of the testator cannot rise above the law and abrogate its provisions. The-tax cannot be eluded by the use of words not necessary to make-file gift effective. If the alleged debt is not admitted by the executor, or is denied by him, it is the duty of the legatee to-establish his debt, if he has any, either by legal proceedings against the executor or by such other proceedings before the-surrogate as will enable the court to ascertain its validity and thereby determine whether the legacy exceeds the indebtedness, and, if so, to assess a tax upon the excess. If a testator makes; a bequest or devise of property to his executors or trustees in-lieu of their legal commissions and allowances, the excess beyond a reasonable compensation for their services is liable to a lax, and we lmow of no good reason why a legacy, in payment for services, care, attention rendered a testator, should not be placed upon the same basis. This course protects the state from fraud and prevents legatees from avoiding the tax which the •statute has demanded. No injustice is done the legatee by adopting this course, because it is optional with him whether he will accept the legacy with whatever conditions and burdens may be attached to it, or to enforce his "claim against the •estate. For acts of kindness shown, for favors received, for some act done at an opportune moment, for many nameless things that were beneficial to him, a testator may, at the time of making his will, feel exceedingly grateful, and think it his •duty to express his appreciation and remembrance of them by .legacies to those who have rendered them; but unless some legal and enforcible claim exist against the testator by reason of them, a legacy thus given in grateful recognition of the kindly .act of friends and relatives should be considered a bounty ■and not the payment of a debt, unless the debt is in some manner established to the satisfaction of the court, and for this reason should not be exempt from taxation.

If the above is a correct statement of the law it follows that the legacy to Dr. Reid is taxable because there is no evidence that it was given in payment of a valid debt, but solely in view -of his unremitting care and attention to the testatrix. The words “I freely give and bequeath” indicate that the deceased understood that the appellant had no. legal claim against her, but n othwithstanding this fact she desired to fittingly recognize the value of his sendees to her. If she believed that, she was indebted to Dr. Reid in a legal sense, but that the debt could not be enforced against her or her estate by reason of the statute •of limitations if interposed as a defense, she could have revived the debt by proper allegations for that purpose in her will. So too the appellant has recognized the legacy as a gift •and not the payment of ■ a debt because- he had presented no claim for any indebtedness to the executor, nor did he appear before the appraiser and claim that his legacy was exempt from taxation by reason of any debt he had against the estate. He i-hould, therefore, be deemed to have elected to accept the legacy as a gift and should be estopped from asserting the contrary at the present time after his refusal or failure to avail himself of the several opportunities offered him by the law to establish his claim, if he had any. ¡No conclusion can be drawn from his conduct save that he accepted the legacy upon the understanding and purpose expressed in the will and no conclusion can be drawn from the will except that the legacy was a mere gratuity, in recognition of services rendered the deceased when she was in limited circumstances, and without expectation of payment. As our records show ¡Mrs. Doty was worth! $20,000 at her death, it will therefore be presumed that, if she supposed that Dr. Reid had any legal claim against her she would have paid him and it will also be presumed for the same reason that- if Dr. Reid had a valid debt against her he would have collected it in her life time. These facts alone, even if ;she had made no explanation in relation to the bequest to him, are -very strong evidence of the non-existence of any legal, indebtedness to Dr. Reid and suggest the- real motive and intent of the legacy as well as the reason why Dr. Reid never attempted to collect any pretended debt against ¡Mrs. Dotv. It was in her power to have exempted this legacy from taxation at his expense by directing that the tax thereon be paid as part of the expenses of administration and not be deducted from the legacy; but she chose to bestow her bounty subject to such conditions as the statute might impose upon it.

It is immaterial whether the law or the testator attaches conditions to testamentary gifts, the legatee cannot take a benefit under the will and refuse the burden imposed on it. By accepting the provisions of the will tire appellant has assented not only to the reasons, purposes and objects of Mrs. Doty in making the bequest to him, as expressed in the will, but to the terms and conditions which the law has annexed to it, and has surrendered every right which lie may have had or asserted in the courts against her estate, which was inconsistent with the provisions of the will and the terms and conditions attached toil and forming the consideration and motive of the legacy. The appellant was put to his election, either to establish his-claim for professional services, or to accept the bounty which the deceased gave him in recognition of his kindness to her. By neglecting to present any account to the executor, or prove any claim against the estate, and having accepted the gratuity which the deceased provided for him in her will, it was the duty of. the executor on its payment to him to deduct therefrom the tax which had been assessed by the surrogate. If he desired to escape the payment of the tax, or was dissatisfied with the-amount of the legacy, he should have established his debt-if he had any against the estate and had it paid by the executor in the usual manner and let the legacy go to him in the residuary assets.

“The times have been,
That, when the brains were out, the man would die,
And there an .end; but now they rise again.
With.twenty mortal murders on their crowns,
And push us from our stools.”

So in the settlement of estates the legal skeletons of stale claims and outlawed demands stalk forth from their charnel houses and their graves and seek to push from their stools the guests whom the testator has invited to the feast.

This appeal is therefore dismissed, but as the practice in this class of proceedings has not been very clearly settled by the courts, without costs to the appellant.


author: Vance, S.

text:
    In the Matter of the Application of Edgar T. Phelps for leave to issue executions against the property of Robert Wallace, Deceased.

      (Surrogates Court, St. Lawrence County,

      Filed January 2, 1894.)
    1. Execution—Leave to issue.
    An application for leave to issue an execution upon a transcripted justice’s judgment, may be made before the expiration of three years after the issuing of letters of administration.

      2. Same.
    The better practice, in such case, is to apply first to the County Court, in which all questions concerning the validity of the judgment can be tested.
    Swift & Bell, for petitioner; C. A. Boynton, for administratrix.
   Vance, S.

—This is an application for leave to issue executions upon two judgments, recovered in justice court, in favor of the petitioner against Robert Wallace, now deceased, as follows:

On December 23, 1886, for $402.05, a transcript of which was filed with the county clerk the same day and upon which it is claimed fifty dollars was paid December 14, 1888, and the other for $184.80 May 19, 1891, transcript filed May 21, 1891. Robert Wallace died January 16, 1892, and letters of administration upon his estate were issued by the Surrogate of St. Lawrence county to Maria Wallace, February 5, 1892.

The application is opposed on the ground that under section 1380 of the Code of Civil Procedure the decree sought cannot be granted until three years after the issuing of letters of administration. If the lien of the petitioner’s judgments was oreated as prescribed in section 1251 of the Code, the objection must be sustained.

Section 1380, so far as applicable to this case, reads as follows: “After the expiration of one year from the death of a party against whom a final judgment for a sum of money or directing the payment of a sum of money is rendered, the judgment may he enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living, but such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which execution is to be issued, and a decree to the same effect is procured from a surrogate’s court of this state which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment, debtor. Where the lien of the judgment was created as prescribed in section 1251 of this act, neither the order nor the-decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent and for that purpose such lien existing at decedent’s death, continues for three years- and six months thereafter, notwithstanding the previous expiration often years from the filing of the judgment roll.”

It is clearly apparent that the section above cited treats of two classes of judgments. In one class a proceeding such as the one now before this court may be instituted at any time after one year from, the death of the party, while in the other class the commencement of such proceedings must be deferred until after the' expiration of three years from the getting of letters testamentary or of administration upon the estate of the decedent. The second class includes all judgments'where the lien was created as prescribed in section 1251. Turning to that section it reads thus: “Except as otherwise specially prescribed by law, a judgment hereafter rendered, which is docketed in the county 'clerk’s office, as prescribed in this article, binds and is a charge upon for ten years after filing the judgment-roll, and no longer, the real property and chattels real in that county, which the judgment debtor has at the time of so docketing it, or which he acquires at any time afterwards, and within the ten years.”

■ The “article” referred to in the section last- cited covers sections 1245 to 1272, both inclusive, of the Code of Civil Procedure. Only sections 1245-6 and 7 relate to the question, under consideration.

Section 1245 provides that “each county clerk must keep one or more books in which he must docket, in its regular order,, and according to its priority, each judgment which he is required by this article to docket.” Section 1246 provides that each clerk, specified in the last section, must, when he files a judgment roll, upon a judgment rendered in a court of which he is clerk, docket the judgment by entering in the proper docket book the particulars therein enumerated. Section 1247 is as follows: “A clerk, with whom a judgment roll is filed, upon a judgment docketed as prescribed in the last section, must furnish, to any person applying therefor and paying thei fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk to whom such a transcript, is presented must, upon payment, of the fees' therefor, immediately file it, and docket the judgment, as prescribed in tbe last- section, in the appropriate docket book kept in his office.” The foregoing are the only provisions prescribing the docketing of judgments found in the article of the Code which includes section 1251.

An examination of these sections will convince the careful' reader that they relate only to judgments rendered in a court of record. The judgments of the petitioner are not such; each was rendered in a court of the justice of the peace. They were docketed in the county clerk’s office not as prescribed iia any of the sections above cited, but in accordance with the provisions of section 3017. The lien of the petitioner’s judgments not having been created as prescribed in section 1251, the three years limitation of section 1380 is not applicable to them. This conclusion gives meaning and effect to each of the provisions of section 1380. The limitation of one year after the death of a party applies to judgments rendered in courts not of record, transcripts of which have been filed in the office of the counts- clerk, while the limitation of three years- after-issuing letters applies to judgments which were originally rendered in courts of record.

It is strongly urged that the lien of the petitioner’s judgments is for ten years after the filing of the transcript, and that they should therefore he included in the second class of judgments mentioned in section 1380. I am not prepared to •adopt- the proposition that under the provisions of the Code of Civil Procedure the petitioner’s judgments are a lien for ten years after the filing of the transcripts thereof in the office of the county clerk. I am aware that there are cases so holding. Townsend v. Tolhurst, 10 N. Y. Supp., 378; 32 St. Rep., 21; Matter of Gates, 21 N. Y. Supp 576. These cases are based •on the authority of Waltermire v. Westover, 14 N. Y., 16. The last named case arose upon a judgment docketed under the provisions of the Revised Statutes, which were that a justice’s judgment docketed by a county clerk “shall be a lien on the real estate of the defendant within the county in the same manner and with like effect as if such judgment had been in the Court of Common Pleas.” Judge Seldew, in delivering the opinion of the court-, says: “The words, fin the same manner and with the like effect,’ are broad and comprehensive, and seem intended to place judgments in justices’ courts when docketed upon the same footing in all respects, as to the lien created, Avith those of the common pleas.” The lien of a judgment of the court of common pleas Avas by statute declared to exist for ten years. These statutory provisions taken together made it clear that the lien of a justices’ judgment docketed in the county clerk’s office-continued for ten years, and the only question in the case was whether the six years statute of limitations, then existing as to such judgments, deprived the plaintiffs of the right of execution.

The provision of the Revised Statute above quoted Avas repealed Avhen the Code of Procedure was adopted. The last named act made the statute of limitations as applied to justices’ judgments, twenty years, and providing that from the time of filing a transcript, thereof in the office of the county clerk, ‘The judgment shall he a judgment of the county court.” Under that Code the questions now under consideration could not possibly arise. Upon the adoption of the Code of Civil Procedure the provisions of the Code of Procedure were repealed, and the statute of limitations, as applied to justices’ judgments, made six years, as under the Revised Statutes. That this limit of six years attaches to such judgments after the filing of the transcripts in the county clerk’s office is now settled. Dieffenbach v. Roch, 112 N. Y., 621; 21 St. Rep., 570. The provisions of the Code of Civil Procedure concerning the filing of transcripts of such judgments is found in section 3017, is as follows: “The county clerk of the county, in which the judgment was rendered, must, upon the presentation of the transcript and the payment of tire fees therefor, endorse thereupon the date of its receipt, file it in his office, and docket the judgment, as at the time of the receipt of the transcript, in the book kept by him for that purpose, as prescribed in article 3 of title 1 of chapter 11 of this act. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly, except,” etc. It is very significant that the legislature, in substituting one Code for the other, changed the language "shall be a judgment of the county,” of the old Code, to"that of “is deemed/’’ etc., in the new, and that, while as to the statute of limitations it returned to the provisions of the Revised Statutes, it failed to re-enact those provisions which made such docketed judgment a lien for ten years. The phrase -“as prescribed by article third,” etc., in the section last quoted, brings forward and incorporates into section 3017 the provisions of article 3 of title 1 ■of chapter 11, as to the keeping of a judgment book and the docketing of judgments therein, but it does not carry back and insert into that article the provisions of section 3017 for the filing of transcripts of justices’ judgments in the county clerk’s office. The last named provision is not, therefore referred to by section 1261.

If I am correct in my construction of the meaning and extent of section- 1251, that it does not include judgments rendered in justices’ courts, transcripts of which have been filed in the county clerk’s office, there is no legislation, which I can find, which, in direct terms, prescribes the duration of the lien of such docketed judgment, and a lien once established would be perpetual unless extinguished by payment or the.statute of limitations.

After a careful study of all the provisions of the Code-of Civil Procedure, and of all reported cases hearing in any wise upon the question, I have reached the conclusion that the only effect of filing a transcript of a justice’s judgment in the clerk’s office is to enlarge the field for its enforcement. It adds nothing to its longevity for any purpose. It ceases-to he enforcible in any way in six years after its rendition. This construction removes the anomaly which some of the decisions present of having a judgment, which by operation of the statute of limitation is dead, as a cause of action yet alive so as to be a lien on the real estate of the judgment debtor.

This is in accord with the conclusions of the general term of the New York common pleas in Herrman v. Stalp, 24 St. Rep., 40. While it has been held that it is not material to which court application is first made in these cases, I deem it to he the better practice to apply first to the county .court in which all questions concerning the validity of the judgment can he tested, and such practice will hereafter he required in this, court.

I will, therefore, withhold the granting of the decree asked for until the decision of the county court upon the application made to it for an order granting leave to issue executions on said judgments.

It is, therefore, ordered that, this proceeding be adjourned until the 15th day of January, 1894 at 10 a. m., to allow the petitioner opportunity to have the questions here considered submitted to that court.