text:
    Margaret B. Prince, Pl’ff, v. Brooklyn Daily Eagle, Def’ts.

      (Supreme Court, Kings Special Term,

      Filed February 14, 1896.)

    1. Libel—Malice.
    The evidence, in this case, was held not to disapprove malice so as to warrant instruction that exemplary damages could not be allowed.
    2. Same.
    The falseness of a libel is always presumed, and proof of it, except in rebuttal of evidence of its truth, is neither necessary nor allowable.
    3. Same.
    Malice is not essential to an action to recover damages for a libel.
    4. Same—Exemplary damages.
    In an action for libel, where there is actual malice, punitive damages may be recovered, though only nominal damage is shown-.
    There was a verdict for six cents damages, and plaintiff moves for a new trial.
    Hector M. Hitchings, for pl’ff; W. N. Dykman, for def’t.
   GAYNOR, J.

—Though the article is light and familiar towards the plaintiffs, and may well be annoying to her, I see nothing libelous in it except the statement that the plaintiff, having a tenant whom she wanted to be'rid of, in order that she might again reside in her house, made a charge of larceny against him before a magistrate, for the purpose of annoying him, and thereby making him cancel his lease. The jury rendered a verdict for six cents damages. The reporter who wrote the article testified that he interviewed the justice of the peace before whom the criminal charge was made, and also the lawyer who defended the accused, and in good faith based the article upon what they told him. This was to disprove malice, and mitigate the damages. It was for the jury to determine the weight of this testimony, and what effect it should have. It may be that cases can be conceived of in which malice might be so conclusively disproved that it would be the duty of the court to charge the jury that they could not give punitive damages, but I am satisfied that this is not such a case. The evidence in disproof of malice was not conclusive. After the charge to the jury had been given, .counsel for defendant requested that the jury be charged that “ they may not give punitive damages,” and the request was complied with. The exception to this presents vital error, which requires that the verdict be set aside.

. Punitive damages may be given for malice in actions for libel or slander, the same as in actions- for other injuries to the person. Taylor v. Church, 8 N. Y. 452. Except in actions for libel or slander, it is seldom that there is any question or misunderstanding upon this subject. The cause of the many misunderstandings, thereon'in these actions (and the reports and text-books are filled with them) arises from the doctrine that two different kinds of malice appertain to such actions. Indictments for libel had to «charge that the publication was malicious, for malice was an essential of the crime, and had to be proved. Civil pleaders, fond, as they were, of verbiage, especially attributing bad and wicked motives in actions of tort, needlessly came to plead in the same form ; and, from the fact that the allegation of malice was always found in the declaration or complaint, it seems that malice gradually came to be deemed essential to the action. We find judges stating it to be essential (only casually, at first) at an early period in England, and the same has continued in judicial utterances, though not so often actually decided, down to the present time, but not without able and discriminating judges and text writers standing out against it all along. It being said that malice was essential to the action, it was at once found that a bothersome fiction was put in the way, whereupon the laws and judges straightway invented and set up another fiction against it, so as to destroy its force, viz. that the malice essential to maintain the action would be presumed in every case. And these two useless fictions, the one laughing at and offsetting the other, have been fostered, and have come down to us, causing controversy and misunderstanding. and confusion all the way. The other malice was, and is usually, called “actual,” in contradiction to the said “presumed ” or “ implied ” fictitious, malice. For this actual malice punitive damages may be given, but not for the said presumed malice. This is the doctrine complete. It is the creation and perpetuation of a distinction out of nothing and for nothing. To say that .malice is essential to the action, and then that it will be presumed in every case, though it serves no purpose, as no damage may be given for it, seems so vain and useless that it has never been acquiesced in.

The judge writing the opinion for our court of appeals in a recent case said :

“ The publication of a libel is a wrongful act, presumably injurious to those persons to whom it relates, and, in the absence of legal excuse, gives a right of recovery irrespective of the intent of the defendant who published it; and this although he had reason to believe the statement to be true, and was actuated by an honest or even commendable motive in making the publication.” Holmes v. Jones, 147 N. Y. 59 ; 69 St. Rep, 312.

It could not be said in stronger language than this that motive or malice is not essential to the action. This may not mean that the fiction to the contrary will not continue to be repeated, for no such effect was preduced by the decision of -the same court many years ago that an allegation that the publication was malicious is not essential to the complaint in an action for libel. Hunt v. Bennett, 19 N. Y. 173.

The confusion in respect of the meaning of the word “ malice” in actions for libel and slander, involved in trying to distinguish between .two kinds of malice, whereas there is and can be in such actions only one kind, seems to be preserved now only because it has existed so long, even though against many protests. The only malice there is in actions for libel or slander is such as is proved. When such malice exists, punitive damages may be given for it. Evidence in proof or disproof of malice has relation to the actual damage done to the plaintiff. That cannot be withheld or diminished by the jury for absence of malice.- It does not-depend upon malice at all. Proof that one published a libel of another carries with it evidence of malice, unless circumstances also appear which show that there was no malice. Malice may be found in the publication itself, or be proved aliunde. In either case it is the same malice, the difference, if any, being in degree. Recklessness or carelessness or disregard of the rights of others in the publication is evidence from which malice may be found. Holmes v. Jones, 121 N. Y. 461; 31 St. Rep. 379. It was said in the dissenting opinion in Samuels v. Association, 9 Hun, 294, that “ the plaintiff in an action of libel gives evidence of malice whenever he proves the falsity of the libel ”; and that, when the defendant gives no evidence to. disprove malice, “it is the duty of the court to say to the jury that, upon proof of the falsity of the libel, the plaintiff is entitled to exemplary damages in their discretion.” Upon appeal, this dissenting opinion was adopted by the court of appeals. 75 N. Y. 604. Since then it has been repeated that, “when the falseness of the libel is proved,” it is evidence of malice. Bergmann v. Jones, 94 N. Y. 62; Warner v. Press Publishing Co., 132 N. Y. 184; 43 St. Rep. 633. The effect of this is that counsel for plaintiff in actions for libel now frequently offer evidence in chief that the libel is false. But the expressions I have cited seem to be inadvertent. The falseness of the libel has always been, and is now, presumed, and proof of it, except in rebuttal of evidence of its truth, is neither necessary nor allowable. As this rule is-unquestioned. it is not easy to cite authority for it. 3 Greenl. Ev. § 419; Odger, Sland. & L. p. 169; Townsh. Sland. & L. § 73; Hunt v. Bennett, 19 N. Y. 173; Viele v. Gray, 10 Abb. Prac. 1. Of course, the foregoing has no reference to publications .on occasions that are qualifiedly privileged, for in such cases the plaintiff may show that the defamatory matter is false and malicious, in order to deprive the defendant of the privilege.

It is contended that, as the jury found that the plaintiff was-damaged only nominally, it was not a case for punitive damages. It is said that it would not have been error to have charged the jury that, if they found that the plaintiff was damaged only nominally, they should not give punitive damages. There is authority for this (Stacy v. Publishing Co., 68 Me. 279); but I do not think it is the law of this state. A person may be of such high character that the grossest libel would damage him none; but that would be no reason for withdrawing his case from the wholesome, if not necessary, rule in respect of punitive damages. It is in such oases that the rule illustrates its chief value and necessity.

The motion for a new trial is granted.


source: Caselaw Access Project

author: CULLEN, J.

license: Public Domain

text:
    Magdalena Grafing et al., as Executrices, App’lt, v. Catharine Heilmann, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Trusts—Deposit in savings bank.
    A deposit in a savings bank, made by the depositor in his own name, in trust for another, even when the book is retained, in the absence of attendant circumstances indicating a contrary intent, creates a trust in favor of the beneficiary.
    2. Same.
    The fact that the depositor drew the interest during his life time is not inconsistent with an intention to create a trust.
    3. Same. .
    Nor does the fact that the money deposited is to go to the beneficiary only on the depositor’s death, render the transaction a testamentary disposition.
    4. Presumption—Payment.
    The mere payment of money is not evidence of a loan, but raises a presumption that it was made in satisfaction of an antecedent debt.
    Appeal from a judgment dismissing the complaint on its merits.
    Secor & Page, for app’lts ; L. S. Goebel, for resp’t.
   CULLEN, J.

—At the close of the plaintiffs’ case, the defendant submitted the cause on the plaintiffs’ evidence. The court made findings of fact and of law. The case is therefore not that of a nonsuit, and it is not a question whether there was any evidence to support the plaintiffs’ claim, but whether the decision of the trial court on the facts and law was erroneous. The contest is the not unusual one between the personal representatives of a deceased depositor, and the beneficiary, over funds represented by saving-banks books; the deposits being made by plaintiffs’ testator in his name, in trust for the defendant That such a deposit, even when the bank books are retained, in the absence of attendant circumstances indicating a contrary intent, creates a trust in favor of the beneficiary, is settled by authority. Martin v. Funk, 75 N. Y. 134; Willis v. Smyth, 91 id. 297; Mabie v. Bailey, 95 id. 207. The decision in Cunningham v. Davenport, 147 N. Y. 48; 69 St. Rep. 302, has no application to this controversy, for the beneficiary here has survived the depositor. In this case the attendant acts of the deceased would seem conclusive of his intention to create a trust in favor of the defendant. The deposits were made in April, 1893. The plaintiffs put in eviMence a letter of the deceased to defendant, found among the former’s papers after his death, directing what disposition she should make of the moneys. In August, 1894, $2,000 was drawn from one account, and given to the defendant. There is no evidence that it was given to her as a loan, or that she promised to repay it. The mere payment of money is not evidence of a loan. The presumption is that it was given in satisfaction of an antecedent debt. 1 Phil. Ev. (Cow. & H. Notes) p. 676. So, in this case, it was a recognition of defendant’s title to the money. The fact that the depositor drew the interest during his life is not' inconsistent with an intention to create a trust. Willis v. Smyth, supra. I do not know that the appellant seriously denies'that the deceased intended the moneys should go-to the defendant. Her main contention is that the depositor intended to reserve the interest during his life, and that the money was to go to the defendant only on his death, and that either of-these facts would render the attempt to create a trust void. The trial court refused to find either fact in favor of the plaintiffs, but, had the facts been found, in my opinion, they would not have affected the result. It must first be observed that the case presented is one of a trust, not of a gift. The distinction between the two cases is clearly pointed out by Judge Andrews in Beaver v. Beaver, 117 N. Y. 421; 27 St. Rep. 405. It is therefore not subject to the difficulty that exists in making gifts where the donor retains any possession or interest in the subject-matter of the gift. Young v. Young, 80 N. Y. 438. I can see no reason why the deposit might not have been made by the deceased with the qualification, expressed on |he face of ^he pass book, that the interest was payable to him personally during life, nor why such a deposit would not have been valid and effectual. Nor, if it were the fact that the money was to go to the defendant only on the depositor's death, would that render the transaction a testamentary disposition. It is sufficient that the dafendant’s interest was vested at the time of the deposit. Van Cott v. Prentice, 104 N. Y. 55; 5 St. Rep. 654. If as a condition for this deposit, the defendant promise to pay any sums to others, such parties must seek their own remedies against her. It does not affect her rights to the fund.

The judgment appealed from should be affirmed, with costs. x All concur.


author: INGRAHAM, J.

text:
    William Roeber, App’lt, v. New Yorker Staats Zeitung, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 7, 1896.)

    .1. Pleading—Answer—Libel.
    While the truth of a libel is a complete defense, it must he pleaded, if relied upon by the way of justification or in mitigation of damages.
    2. Same.
    Where such an allegation in the answer has not been pleaded as a separate defense or by way of justisfication, but contains facts which would, be a good plea in mitigation of damages and is connected with a plea in mitigation of damages so as to be taken as a part thereof, the plaintiff cannot demur to such allegation and sustain such demurrer by showing that it is not a justification. -
    3. Pleading—Demurrer.
    The obligation upon a plaintiff to demur, or make a motion to compel a defendant to make the answer more definite and specific, only applies where a defense is defectively stated.

      Appeal from an interlocutory judgment overruling demurrer to a subdivision of the answer.
    F. Pierce, for app’lt; H. P. David, for resp’t.
   INGRAHAM, J.

—The complaint alleges the publication by the defendant of an article concerning the plaintiff which is clearly libelous per se. The answer, while admitting the publication of the article, contains a clause commencing as follows: “ Eighth. This defendant, further answering, upon information and' belief charges and avers that the publication so made as aforesaid was, and is true.” Then it goes on, and states certain facts which allege the truth of certain portions of the facts alleged in the libel. This allegation is not set forth as a separate defense to the action, is not alleged to be a justification, and the demurrer interposed by the defendant does not demur to it as a separate defense, but demurs on the ground that the allegations in said subdivision are only a repetition of the alleged libelous matter, and that the defense of justification, as alleged in the said subdivision of the amended answer, is insufficient in law. The facts alleged would be sufficient in mitigation of damages, and assuming that the facts alleged are not insufficient as a justification, the allegation is not pleaded as a justification, or as a separate defense. We do not think that such an allegation of the answer can be demurred to. The plaintiff’s proper remedy was to apply to the court to have the clause in question made more definite and certain, by alleging it as a separate defense of justification, or by alleging that it was pleaded in mitigation of damages, or by striking it out as irrelevant. From the ninth clause of the answer, it would appear that the allegation was inserted, not as a separate defense by way of justification, but as part of the ninth clause, of which it is made a part, and which is expressly pleaded as a partial defense and in mitigation of damages. It is well settled that, while the truth of a libel is a complete defense, it must be pleaded, if relied upon by of justification or in mitigation of damages. See 13 Am. & Eng. Enc. Law, 394, 395. and cases therein cited. In the case of Tilson v. Clark, 45 Barb. 181, was expressly held that the obligation upon a plaintiff to demur, or make a motion to compel a defendant to make the answer more definite and specific, only applies where a defense is defectively stated. This allegation in the answer not having been pleaded as a separate defense, or by way of justification,' containing facts which would be á good plea in mitigation of damages, and being connected with a plea in mitigation of damages, so as to be taken as a part thereof, we do not think that the plaintiff could demur to the clause in' question, and sustain such a demurrer by showing that the allegations were not a justification. The judgment appealed from must'be affirmed, therefore, with costs, with leave to withdraw demurrer on payment of costs of appeal and costs on demurrer below.

All concur.


author: FITZSIMONS, J.

text:
    Franciska Thommen, Resp’t, v. Jewelers’ and Tradesmen’s Company of New York, App’lt.

      (New York City Court, General Term,,

      Filed January 28, 1896.)

    'Insurance—Libe—Forfeiture.
    Under a policy of life insurance, which provides that “death of the member by his own hand” is not a risk assumed, and that the amount recoverable in such case shall be restricted to the assessments paid in and interest thereon at 6 per cent., the company, in case of suicide, is only required to pay the amount of the assessments paid in and 6 per cent, interest.
    Appeal from a judgment in favor of plaintiff.
    Mooney & Shipman, for app’lt; Zeller & Miehling, for resp’t.
   FITZSIMONS, J.

—The defendant is only liable to the plaintiff for risks assumed by its policy of insurance. The ninth provision of said policy provides: “Death of the member by his own hand, whether voluntary or involuntary, sane or insane, at the time, is not a risk assumed,” etc.; but, in case of such, there shall by payable a sum equal to the amount of the assessments paid by said member with six per cent, interest. It is therefore quite clear that, under said policy, suicide by the insured was not a risk assumed. The evidence in this case shows that the insured shot himself, and died eight days subsequently, from the effects of such shot. Therefore, he was a suicide, and under its policy the defendant was only required to repay the amount of the assessments paid in and six per cent, interest; and for that amount, only, was the plaintiff entitled to a verdict herein. The trial justice directed a verdict in favor of the plaintiff for $2,000 and interest. Because of the reasons above stated, it was error for him to have done so. He should only have directed a verdict for the assessments paid in and six per cent, interest thereon, as he was requested to do by the defendant’s attorney.

Judgment reversed, with costs to the appellant to abide the event.

All concur.


author: LANSING, S.

text:
    In the Matter of a Proceeding for the Probate of the Will of Mary Murphy, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed December, 1895.)

    1. Wills—Execution.
    Where the testatrix can neither read nor write, it is necessary for the due execution of her will to show that it was read to her, or, at least, that she understood its contents.
    3. Same—Publication.
    Proof that the draftsman of the will prepared it in testatrix’s presence, read it to her, and ask her if she wanted the witnesses to sign it, to which she answered in the affirmative, establishes the publication of the will.

      S„ Same—Undue influence.
    Where testatrix was a servant of the legatee’s husband, the burden is on the legatee to show that the will was not influenced by the relation existing between the parties.
    4. Same.
    In case the relation between the legatee and the testatrix is that of master and servant, the law will presume coercion, undue influence or fraud, unless the contrary appears by the most clear and satisfactory evidence.
    8. Same.
    In such case, the instrument should not be admitted to probate upon the bare proof of its execution, but it is the duty of the proponent to show that, while their apparent relations were those of master and servant, their real relations were otherwise, or, at all events, that proponent had taken no advantage of her relations with testatrix.
    6. Same. ,
    The evidence, in this case, was held sufficient to show that the relation of master and servant did not exist.
    Proceeding [or the probate of the will of Mary Murphy, deceased. The will was dated March 31, 1890, and testratrix died February ■5, 1895. She was eighty years old, and illiterate, being unable either to read or write. She left neither a husband nor descendants, but a brother, three sisters, and several nieces and nephews, among whom was proponent. Testatrix had been a cook at an hotel kept by her brother, and, on her brother’s death, the hotel was taken by proponent’s husband, and testatrix remained as cook, and was there about twenty years before her death. Testatrix and her husband had taken a child called Julia Murphy to live with them, but they never legally adopted the child.
    Frank S. Black, for executrix, Mary Buckley, proponent, and for Ellen Murdock, Fannie Boyd, Kate Cratty, and Mary Buckley, individually ; Martin & Kelly, for John Ahearn, Elizabeth Kelly, John F. Ahearn, William H. Ahearn, Helen Grady, Agnes Frelick, and John Ahearn ; Frank T. Noonan, for Helen Grady.
   LANSING, S.

—Two important questions are presented for •decision in this case. The first relates to the execution .of the will. The second involves the charge of fraud and undue influence in procuring its execution on the part of the principal beneficiary. It is claimed on the part of the contestants that the will was not properly published by the deceased, and also that the deceased was not advised of the contents of the will prior to its execution. There is no claim made that she was not a woman of fair intelligence and of sound mind, but it is claimed that since she could neither read nor write, it was necessary for the due execution of this instrument to show that it was read to her, or, at least, that she understood its contents. This is undoubtedly the law. In re Lansing’s Will, 17 St. Rep. 440. The body of the will is in the handwriting of James H. Byan. "The signature of James H. Byan, as a witness to the will, was proven. The will was signed by the.testatrix by making her mark. Peter Buckley, the sole 'surviving witness, testified that he signed his name to the instrument as a subscribing witness in her presence and at her re. quest, and that he saw Mr. Rvan attach his name and make the cross.between the words “Mary" and “Murphy,” Mrs. Murphy touching the pen; that afterwards Mr. Rjmn asked Mrs. Murphy, who was sitting at the table at his side, “if she wanted Mr. Buckley and him to witness the will, and she said, Yes.”8 Mr. Buckley also testified that Mr. Ryan was preparing the will when he entered the sitting room, had it nearly finished, and that he saw or heard Mr. Ryan read the will to testatrix; “she said it was all right”; that, after its execution, Mr. Ryan said, “Mrs. Murphy, I will take this will, and put it in my safe.” . Although Mr. Buckley’s testimony is not very explicit or satisfactory as to what he heard or remembered in regard to the contents of the will when he heard it read to testatrix, yet I think it appears satisfactorily that Mr. Ryan did read the will to the testatrix, and that she knew its contents prior to its execution, unless a fraud was perpetrated upon her by Mr. Ryan in failing to read some portion of it to her, or in pretending to read what was not in the will. Mr. Ryan was a lawyer of considerable experience, and had been engaged for many years in the practice of law in Troy. There is no charge of any deception or wrongdoing upon his part in the matter, and I do not think I have the right to assume any misconduct on his part in the performance of his duty. On the other hand, I think that, when it appears that Mr. Ryan was engaged in the act of reading the will to her, I must assume that he read it correctly, and all of it, and that, when she stated it was “ all right,” she understood its contents, and approved of it. Buckley was not called to hear the will read, or to be advised of its contents. If I am correct in the conclusion I have drawn from this testimony in respect to the execution of the will, I think it was formally and duly executed.

It is well settled in this state that a will may be properly executed by the mark of the testator; and, where one of the subscribing witnesses is dead, his handwriting may be proved, and the tesimony of the surviving witness who saw the mark made will be sufficient to prove the due execution of the instrument. In re Kane’s Will, 20 N. Y. S. 123; In re Dockstader, 19 St. Rep. 245; In re Hyland’s Will, 27 N. Y. Supp. 961 ; In re Wilson’s Will, 76 Hun, 1 ; 58 St. Rep. 732. No particular form of words is required to constitute the due publication and request. It is a substantial compliance with the statute if in some way or mode the testator indicates that the instrument the witnesses are requested to subscribe as such is intended and understood by him to be his will. In re Hunt’s Will, 110 N. Y. 278, 281 ; 18 St. Rep. 118. The declaration may be made in answer to a question, or even to a sign. Coffin v. Coffin, 23 N. Y. 15. Publication and request may be incorporated in the same words and acts. In re Kane’s Will, supra; Coffin v. Coffin, supra. The words of request or acknowledgment may proceed from another, and will be regarded as those of the testator if the circumstances show that he adopted them, and that the party speaking them was acting for him with his assent. Gilbert v. Knox, 52 N. Y. 125, 129. The publication and request are both, I think, embraced in the language which Mr. Ryan used to testatrix when he asked her “if she wanted Mr. Buckley and him to witness the will,” which was then present, and had been prepared by him in her presence, and executed by her; and, if I am right in my conclusion that she knew the contents of the will, I think the will was sufficiently executed to meet the strictest requirements of the statute.

The remaining question, namely, whether this will was the result of fraud and undue influence, is the more serious one, and requires a somewhat careful examination of the evidence and the law applicable thereto. The testatrix was about seventy-five years of age; had received a somewhat serious injury in the breaking of her arm about a year before the making of her will; was somewhat feeble in health ; but, as far as appears, was not affected by any weakness of mind or memory. The evidence tends to show that she knew who were the objects of her bounty, and that she had sufficient mind and memory 10 decide between them, and also' knew the amount and condition of her property. But the contestants, while not assailing the general proposition above stated, insist that the relation between the proponent and testatrix was that of master and servant; that there was dependence on the one hand, and control upon the other; and that in such a case the law will presume coercion, undue influence, or fraud unless the contrary appears by the most clear and satisfactory evidence. There is, undoubtedly, ample authority in support of this proposition if the fact shall be so found. Sears v. Shafer, 6 N. Y. 268; Ford v. Harrington, 16 N. Y. 285. They further insist that the will is an unnatural one, since the testatrix, by this instrument, gave the body of her estate to a single niece, and thereby ignored the claims of those who were the natural objects of her bounty—her brothers and sisters; and they insist that, at least, a more wide distribution of her property among her numerous relatives, including those of a like degree of relationship as Mrs. Buckley, would have been more natural, and more in accordance with the presumed state of her affections. On the other hand, the proponent insists that the relation of master and servant, as those terms are used and that relation is understood and treated in law, did not exist between ■these parties; that they were kindred by blood, and that such relationship was recognized between them in their intercourse with each other, and that their relations, from their long residence together and the intimacy of their intercourse, was more like that of mother and daughter; that, at least, they were, in addition to their kinship, very close friends and associates, Detween whom the most confidential and affectionate relations existed; and that the relation of master and servant was not recognized by them, or either of them, and did not in fact exist between them (whatever their outward or apparent relations were), and therefore the presumptions growing out of the relation of master and servant cannot he claimed in tfiis case. The proponent further insists that the testatrix’s relations with her brothers and sisters and other relatives, except the sisters of the proponent, were neither cordial nor close, indeed were hardly friendly, and that with one of theca (Mrs. Powers) she was not on speaking terms, and that the same is true o£ her relations with her adopted daughter, with whom she had a serious difficulty, and to whom she had not spoken for five years prior to her decease; that a knowledge of the testatrix’s relations with other kindred (aside from Mrs. Buckley and her two sisters, Mrs. Boyd, formerly Ahearn, and Mrs. Murdock) would have at once suggested the conclusion that Mrs. Buckley would be the principal recipient of her bounty.

The law applicable to the various relations between these persons, as claimed by the contending parties, is well settled. If this instrument was solely the offspring of love and affection, however the same may have been prompted or caused, it should stand as the.xwill of the deceased. Tucker v. Tucker, 45 St. 458 ; Coit v. Patchen, 77 N. Y. 533, 539 ; In re Green, 67 Hun, 527 ; 48 St. Rep. 450. If, on the other hand, it was the result tif dependence upon the part of the testatrix, and of control on the part of the principal beneficiary, it is, in law, the product of fraud, imposition, or coercion, and its probate should be refused. In re Green, supra ; Tyler v. Gardiner, 35 N. Y. 559.

This leads us to an examination of the evidence to ascertain what was the actual relation existing between these parties (proponent and testatrix) at the time of the making of the will, for the purpose of determining (1) where the burden of proof rests in this case, and (2) of determining whether the party upon whom the burden rests has sustained the same. The testatrix lived with the proponent many years, and, doubtless, performed the duties of servant, although it appears to have been of her volition, without contract or compensation for her services. She was at the same time a friend and a relative. There was a sharp contest between these parties upon the trial as to what were the real relations between the testatrix and her niece Mrs. Buckley. The evidence upon the part of the contestant tends to show that she was a mere servant, a drudge in the kitchen, getting up early, working hard day in and day out; that she occupied the servant’s ■quarters, was not introduced to friends of the family, did not sit at the table with the family,—in fine, was treated as a servant aud was such; that the testatrix was old, somewhat feeble in health, was ignorant, could neither read nor write, and was therefore easily the subject of fraud and imposition, and that her situation and relations with Mrs. Buckley were such as to afford her ample opportunity to alienate the affections of the testatrix from the balance of her kindred, and center them on herself; that the manner of the production of the will, as shown by the testimony, indicated fraud, if not coercion, in its production; that Mr. Ryan was comparatively a stranger to testatrix, and the will was prepared shortly after a serious quarrel with her adopted daughter in relation to the custody of the bank books; and that the proponent took advantage of the testatrix’s natural resentment and of its influence over her to obtain from her this will. There is no direct evidence of any fraud or coercion in making this will, and I fail to find anything growing out of the manner of its immediate production which indicates that any undue advantage was taken of her by the proponent. It is true, Mr. Ryan was a comparative stranger to her, but she had employed him to procure her bank books from her adopted daughter, Julia Cummings, who refused to give them. up. It appears that, shortly after obtaining the books, she requested Mr. Ryan, in the presence of Mr. De Groot, his clerk, to draw her will, and a few days afterwards her will was drawn under the circumstances above-narrated. Mrs. Buckley appears to have been in or about the room when the will was drawn, for, when it was partially completed, she went, and called her husband, Mr. Buckley, who was asleep in another part of the house, to come and witness the will. Nothing appears from the circumstances attending the making of the will to show that the instrument was not the result of an intelligent mind, acting without restraint or undue influence. As to the relations between these parties, testatrix and proponent, it is safe to say that they were apparently those of master and servant, whatever their real relation might be. The testatrix was unlettered, mingled but little with the world, had been in the kitchen of the proponent for twenty years. She was also quite advanced in years, had been in ill health for some time, and, under such circumstances, would, doubtless, look to Mrs. Buckley for advice and counsel.

I am of the opinion, therefore, under the circumstances, that the instrument should not be admitted to probate upon the bare proof of its formal execution, but that it was the duty of the proponent to go further, and show that, while their apparent relations were those of master and servant, their real relations were otherwise, or, at all events, that proponent had taken no advantage of her relations with testatrix ; and the burden of proof, I think, was therefore upon proponent to show the will was the result of testatrix’s own free act. Van Pelt v. Van Pelt, 30 Barb. 134 ; Loder v. Whelpley, 111 N. Y. 239 ; 19 St. Rep. 631. This proponent has essayed to do, and has introduced very considerable testimony tending to show that the relations between her and testatrix were not those of master and servant, but were those of kindred and close, intimate friendship; that the testatrix was never treated in .the family as a servant; never ordered or directed as to her- work; that no work was exacted of her more than she desired to do ; that she performed her duties from motives of love and affection, rather than for pay; that she was counseled with, advised, and treated as a mother would have been had she been performing the ¡same duties for her daughter; that testatrix roomed with the sisters of the proponent, and with proponent’s own daughter, was nursed, when sick, by proponent and her family, and was in all respects, so far as consistent with her employ-, ment, treated as a friend and relative; that the testatrix served without compensation other than such as one member of a family would naturally give to another by presents and voluntary purchases of articles of clothing, from time to time, as affection on the one side and apparent needs upon the other prompted. The proponent also offered considerable testimony tending to show that the relations between the testatrix and her brother and sisters were not cordial ; .that her intercourse and association with them was infrequent; and that, with the exception of her sister in Boston (Mrs. Grady, who had a pension), they were all in comfortable circumstances. It further appeals from the evidence in this case, the most cogent of which was furnished by Mrs. Boyd, a witness called by the contestants, that the relations between the testatrix and proponent were more intimate and affectionate than those between the testatrix and any of her other-relatives. Indeed, Mrs. Boyd testified that she roomed with testatrix for many years when she resided with her sister, the proponent; that she ¿earned in her intercourse with testatrix that her affections were centered upon the proponent, and that the proponent was her favorite among all her relatives; that she was also greatly attached to the proponent’s family, and was exceedingly kindly treated by them. Mrs. Boyd’s testimony, which appears to be frank and unbiased (since she had some reason to expect from her relations with the testatrix that she would be remembered in her will), furnishes satisfactory evidence, in connection with the other facts and circumstances in the case, that the will was made in accordance with the affections and unbiased inclination of the testatrix.

In conclusion, this instrument, following the lead of the testatrix’s affections, and being offspring of an intelligent mind, unaffected by fraud or coercion, however partial'it may appear or unjust in discriminating against her other relatives, is fullv established as the will of the deceased, and must be admitted to probate.

Decreed accordingly.


author: BROWN, P. J.

text:
    In the Matter of the Final Judicial Settlement of the Accounts of John H. Braunsdorf, as Sole Surviving Executor, etc., of Julius E. Braunsdorf, Deceased.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 11, 1896.)

    1. Will—Construction.
    Where a widow is, by the provisions of a will, entitled to only the net income from an estate afler the payment of all necessary charges, money paid for repairs to buildings should be charged to the income, but money paid for a permanent improvement should be charged to the estate.
    2. Executor—Remainder-man.
    The executor, where he did not charge the expenses for repairs to the income but overpaid the widow, is entitled to deduct from the principal due to those children who had lived witli their mother and were supported by the estate, the cost of their maintenance during the life time of their mother.
    Appeal from certain parts of the decree of the surrogate of Rockland county which finally determined the accounts of the executor.
    I. Newton Williams, for contestant app’lts; Andrew X. Fallon, special guardian, for infant app’lts; Garret Z. Snider, for resp’t.
   BROWN, P. J.

—The principal question presented by this appeal relates to an item of $7,049.91, which represents the amount paid by the executor for repairs and improvements of real estate. By the decree this amount is charged against the principal of the estate, whereas the appellants claim that it should have been charged to, and paid from, income. The total amount of principal of both real and personal estate charged to the executor by the decree was $24,760.13; he was credited with legacies paid amounting to $17,184.46; leaving a balance of $7,575.67. The total amount of income with which he was charged was $16,573.56; he was credited with payments, properly made, amounting to $8,-163.31; leaving the net income of the estate $8,410.25. By ,the provisions of the will of the testator, his widow was entitled to receive the net income of the estate during her life. She died in the year 1891, and the total of payments made to her by the executor exceeded by a few hundred dollars the net income above stated.

If the appellants are right in their contention that the repairs and improvements to the real estate were properly chargeable to income, it follows that the executor has largely overpaid the widow, and must make good the deficiency in the estate to the appellants, who are, under the testator’s will, entitled to receive the principal upon the widow’s death. But, if the ruling of the surrogate is correct, then the balance of the principal, as stated above is subject to be further reduced by the amount paid for repairs, and the balance due to the appellants is the sum of $525.76 only.

The testator, by his will, gave all his property, of every kind, to his executors, in trust, to pay (1) his debts and funeral expenses; (2) to collect and receive the rents, income, and profits thereof, and pay “all necessary expenses and charges for the proper care and preservation thereof, and after the payment of such charges and expenses,” to pay from the “net income” $300 annually to his mother during her life, and the remainder of said income to widow, for her maintenance and use, and after death of his mother, to pay his widow “the whole of said net income,” as long as she remained his widow. Upon the death of the- widow the whole estate was devised to such of' the testator’s children as should then be surviving, and the surviving issue of any child or children who should have died before the death of the widow, leaving issue, except that the testator’s daughter Wilhelmina was to receive only the income from her share during her life, and upon her death such share was devised to her children and descendants, The executors were authorized to sell any or all of the real estate, and to invest and reinvest the proceeds thereof. The testator died in 1880, leaving surviving him his mother (who died in 1881, and to whom was paid only one year’s annuity), his widow, and eight children, five of whom were minors, whose names and ages were as follows: Laura, 20 years; Henry, 18 years; Julia, 17 years; Julius, 13 years, and George, 11 years. The widow died in June, 1891.

Of the amount paid out by the executor for repairs and improve ments to the real estate, the sum of $1,285.77 was paid for the erection of a frame factory, which was used by the executor in closing up the business which the testator had carried on. The balance of the expenditures appear, so far as the testimony shows to have been made for repairs necessary for the preservation of the property. The learned surrogate placed his decision upon the ground (1) that the repairs made were of a permanent character, and enchanced the value of the real estate; (2) that the intent of the testator was that his widow should he supported from the income of the property, and if the repairs had been charged to income, it would have so reduced it as practically to leave the widow without support.

After the widow’s death, all the property upon which the repairs were made was sold, pursuant to a judgment rendered in an action of partition; and the lot upon which the frame factory was erected sold for $1,950, which sum was distributed among the contestants. The testimony as to the value of the lot without the building varied from a few hundred dollars to upwards of a thousand. But there is no dispute but that its value was substantially increased by the building. As the appellants have had the benefit of that increase in value, we think the income of the estate cannot now be charged with the cost of the building, and to this extent the decree of the surrogate can be upheld. But as to the balance of the expenditures, to w-it, $5,764.14, I am unable to see how the decision can be sustained on the ground that the repairs were of a permanent character. I cannot find anything indicating that any part of this sum was expended for permanent improvements. The executor speaks of them as “repairs to eight dwelling houses, grocery store, blacksmith shop, and large brick factory.” Other witnesses describe them as new roofs on buildings, new fences, and painting. All such items clearly come under the head of “expenses and charges for the proper care and preservation of the property,” and, by the express terms of the will, were to be paid from the income. The intention of the testator in reference to the support and maintenance of his widow must be gathered from the terms of the will. The provisions of that instrument are not ambiguous or doubtful. It is the “net income” only of the estate that is given to the widow for her use. The amount of that provision was determinable only by deducting from the gross income the payments made for “all necessary expenses for the proper care and preservation” of the estate. These expenses included taxes, insurance, and such ordinary repairs as-were necessary to preserve the property.

The respondent’s counsel asks us to sustain the decree upon another ground. His argument, as I understand it, is that conceding that the ordinary repairs were, by the terms of the will, payable from the income, yet as the widow paid therefrom, for the support and maintenance of her children, a sum equal to the amount paid by the executor for repairs to the real estate, that in adjusting the executor’s accounts the amount therein stated to have been paid by him for repairs may be presumed to have been presumed to have been advanced from the principal of the estate for the support of -the children, and may be therefore properly allowed to the executor on his final accounting. In support of this claim, we are referred to the case of Shepard v. Stebbins, 48 Hun, 247; 17 St. Rep. 900, and the decision of the surrogate of Chautauqua county in the case of Rolph’s Estate, 29 St. Rep. 64. In each of these cases the administrators were-general guardians of infant children, who had inherited the real estate upon which the expenditures were made upon the death of their fathers. The expenditure of personal property in repairs to the real estate, and the discharge of incumbrances thereon, was sustained on the ground that it was the duty of the general guardians to protect and preserve the children’s estates; and the expenditures made for the support of the children were sustained on the ground that they were such as would have been authorized by the court in the first'instance, had application been made therefor. In this case it would probably, during the lifetime of the widow, and without her consent, have been difficult to have provided for the support of the infant children of the testator out of the principal of the estate. The only practical way that could have been accomplished would have been through a sale of the infant’s share; and in view.of the provision of the will which devised the estate, upon the widow’s death, to such of the testator’s children as should then be surviving, a sale of the interest of any child before the widow’s death would probably have resulted in such a sacrifice of the property that the court would not have felt at liberty to order it. But we are of the opinion that the court may now, in adjusting the executor’s accounts, allow to hint such sums as it appears from the testimony have been actually expended by him for the support and maintenance of any of the testator’s children. The provision of the will created a vested estate in each child of the testator, of an undivided one-eighth of the estate, subject to the life estate of the widow, but which was-liable to divest upon the death of the child. All the children survived their mother, and we are not embarrassed by any uncertainty as to their possession and enjoyment of the estate. It is entirely just and equitable, therefore, that the shares-of such of the children as were supported from the estate should be charged with the sums expended for such purpose. John and Wilhelmina were upwards of twenty-one years of age at the time of their father’s death, and never after that time lived at the homestead, or received any support from the estate. Henry was eighteen years of age at his father’s.death, and lived at the homestead until after he was twenty-one. But during that period he worked in the factory, and, out of his wages, paid his board to his mother, and the testimony does not show that be ever received any support from the estate. The occasional visits which these three children made to their mother daring the summer season would not support the conclusion that during those periods they were receiving support from the estate. But, as to the other four children, we think their respective shares should be charged with their support during the lifetime of their mother. It is undisputed that they had no other means of support, except such as they received from the executor, and for six years after the testator’s death they all made their home with, their mother. Julia did not contess the executor’s account, and has not appealed from the surrogate’s decree, and as to her it must bp sustained. The share of each child in the surplus remaining in the executor’s hands would not exceed $600, and we are of the opinion that $100 a year is a moderate allowance to be credited to the executor for the support of the three children who made their home with the mother, and were supported and maintained out of the estate. The decree, therefore, must be modified as follows: The amount credited to the executor in the account of principal for repairs must be reduced to $1,375.77, and the amount remaining in his hands for distribution adjudged to be the sum of $6,327.49. The balance will be subject to the payment therefrom of the executor’s commissions, and the costs and allowances made by the surrogate to the counsel of the respective parties, and the costs of this appeal. The balance remaining will be the sum to be divided among the children of the testator, and the order will provide that the shares therein of Laura, Julia, Julius, and George be retained by the executor to reimburse him for the sums paid out for their support and maintainance.

So modified, the decree will be affirmed, with costs to all parties payable out of the estate.

All concur.


author: HATCH, J.

text:
    Thomas T. Taber et al., Resp’ts, v. Martha T. Willetts, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed February 4, 1896.)

    W ill—Construction.
    Where a testator devises several estates in fee and also one to the executor in trust for his son, with power to convey to the son in fee and also a general power to sell the whole estate, termination of the trust in favor of i the son by a deed to him does not preclude an exercise of the general ■ power of- sale.
    Appeal from a judgment for plaintiffs, rendered on a trial by the court without a'jury.
    Alfred A. Gardner, for app’lt; George M. Baker, for resp’ts.
   HATCH, J.

—The facts are agreed upon, and the case presents only questions of law for solution. Plaintiffs are executors of the will of Stephen Taber, deceased. Claiming to act under the will, they exposed for sale, at public auction, certain real estate devised by the testator, which was purchased by defendant at such sale, but who thereafter refused to complete the purchase, on the ground that plaintiffs had no power to make the sale, and no authority to convey a good title to the land. Thereupon this action was brought to compel a performance of the contract ol purchase, and defendant put in issue, by answer, the power of plaintiffs to sell the land and convey a good title. The will, which must be the subject of construction, is quite plain in its several parts, and the real question is whether the power of sale contained in its sixth clause survived the execution of the power created by the fourth clause. The testator, after providing for the payments of debts and expenses, divided his entire estate among four children and a widow, share and share alike, the widow’s share to be in lieu of dower. Bach beneficiary named is vested with an estate in fee simple absolute of the property, except testator’s son William, whose interest is provided for in the fourth clause. The estate therein, by this clause, is vested in the executors, to be held by them in trust for the benefit of William. By the fifth clause, power is conferred upon the executors in their discretion to convert the said trust estate into a fee simple in William, and thus place all the beneficiaries upon an equality. The sixth clause vests in the .executors a general power to sell and convey, at public or private sale, the whole or any part of the real estate, whenever it may be deemed advisable or necessary, either for the benefit or advantage of the estate, or to carry into effect the provisions of the will, and to convey complete titles thereto to the purchasers. It is clear, therefore, that testator’s intention was to create two separate, distinct, and independent powers,—one being a special power relating exclusively to the estate of William, and the other a general power, to be exercised upon the whole estate in the event it was deemed advantageous so to do. Prior to the sale of the property which is the subject of this action, the executors, in pursuance of the power contained in the fifth clause, conveyed to William, by deed, his fifth interest in fee simple absolute. And the widow elected to take the devise in lieu of dower. The estate remains unsettled, and the executors still act. It is now objected that the power of sale was without vitality, after the conveyance by the executors of William Taber’s fifth interest; that when this event happened the whole of the estate was vested in the widow and children absolutely in fee simple, the trust ended, and that, as the power of sale was not necessary thereafter to carry out the intention of the testator, it becomes repugnant to the ownership in fee, and cannot be upheld as a valid subsisting power. It is not an unusual feature in testamentary disposition to devise a fee and subsequently vest a power of sale in the executors of the instrument. Such power of sale is not necessarily repugnant to the devise in fee, and the courts have found little difficulty in sustaining it, holding that the estate vests in the devisees subject to the execution of the power. Crittenden v. Fairchild, 41 N. Y. 289; Kinnier v. Rogers, 42 id. 531; Drake v. Paige, 127 id. 569; 40 St. Rep. 244. In the present case, the power relating to the estate of William is separate and independent from the general power-under which the sale was made, and, while it is true that the trust estate created by the will was at an end when the deed was made, it does not follow that there existed no necessity for continuing in existence the general power of sale. The power in trust evinced a distinct purpose to guard the estate of William from waste, which his unreliable habits might produce. The general power applied to the entire estate, in order that its proper distribution might be facilitated. The courts have recognized that such power may be upheld for that purpose. In Cussack v. Tweedy, 126 N. Y. 81; 36 St. Rep. 455, there were separate trusts for four children, coupled with a power of sale. By the death of one, an undivided fourth of the estate had vested in the issue, and it was claimed that the power of sale, as to such one-fourth, ended with the determination of the trust. The court held that the power covered the whole estate, and that the issue of the child dying took the fee subject to the exercise of the power. In the discussion, the court upheld the power, upon the ground, among others, that it would facilitate an ultimate division without the expense and delay of a partition. And the court cites with approval the phrase of an English case that “ the power is unlimited, and overrides the whole estate.” While the facts of that case are different from the' case at bar, yet the reason assigned for facilitating division and distribution of the estate is applicable to the conditions here existing, while the power is as broad as the one there under discussion or the one referred to in the English case. In Mellen v. Banning, 72 Hun, 176 ; 55 St. Rep. 319, the court concluded that the-only purpose for which the power could exist was to divide the-estate among those entitled, and they assumed, without deciding, that such power was not repugnant to a devise in fee. If this, were all, the suggestion contained in’that case wo.uld discredit the continued existence of a power for such purpose. But in Mellen v. Mellen, 139 N. Y. 210 ; 54 St. Rep. 670, where the same power was under consideration. ANDREWS, C. J., said:

“ But there can be no doubt as to the validity of the power of sale. There is no repugnancy between a devise in fee and a subsequent power of sale given to the executor for the benefit of thedevisees. This is a common incident of testamentary dispositions. The title to the lands vested in the widow and children of Abner Mellen under the devise, and was a fee, subject to the power of sale given to the executor. In case of a sale under the power, the title of the devisees in the land would be divested and an interest in the proceeds substituted.”

McCready v. Insurance Co., 83 Hun, 526 ; 65 St. Rep. 814.

The exercise of the power is liable to be defeated whenever thedevisees unite and elect to take the land in its unconverted form. McDonald v. O’Hara, 144 N. Y. 566 ; 64 St. Rep. 236. No such question arises upon the record in this case, as it is not claimed that there has been a concurrence of all the beneficiaries to work such a result. We conclude that the general power of sale was valid and substituting at the time defendant made her purchase, and that the executors could convey good title to the land sold.

The judgment appealed from should therefore be affirmed, with costs.

All concur.


author: WARD, J.

text:
    In the Matter of the Probate of the Will of Mary E. Barber, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Wills—Probate— Alterations.
    Material alterations or erasures in a will are not presumed to have been made before the execution thereof, where no explanation of the erasures is given, and where suspicion arises upon the lace of the paper and other surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper.

      2. Same—Burden of proof.
    Where one propounds an instrument for probate and it is doubtful whether the alterations were made before or after execution, the one propounding the instrument must make the doubt clear.
    3. Same.
    In doubtful cases, where material provisions have been erased or altered, and the court cannot determine from the proof whether the alterations were made before or after execution, probate must be refused and the whole instrument rejected.
    4. Same—Incompleteness,
    Where the paper is only a memorandum or a partial disposition of the property of the decedent, when he intended, before his will should be complete, to dispose of more of his property,» or the whole thereof, the paper, though signed and witnessed, may be rejected for incompleteness and as not expressing the will of the decedent.
    5. Same.
    The due execution and publication of the will were held, in this case, not to have been shown.
    Appeal from a decree admitting the will to probate,
    John D. Teller, for app’lt; William E. Hughitt, for resp’t.
   WARD, J.

—Mary E. Barber, a widow lady in the city of Auburn.having considerable property, died on the 27th of January, 1895 She- had no children or other descendants, and her heirs and next of kin were two sisters, Cornelia M. Barber and Mrs. Frances M. Benson. In March, 1895, Cornelia M. Barber, whom we shall style hereafter as the “proponent,” filed a petition with the surrogate of Cayuga county praying for the probate of what she claimed to be the will of the deceased. Frances M. Benson contested such probate, and interposed a defense by filing an answer, and the issues thus made were tried before the surrogate, and the paper was admitted to probate as a will by the surrogate. At the time of the making of this instrument the mother of the deceased, a Mrs. Morgan, was alive, but subsequently, and in October, 1893, she died. The paper presented to the surrogate was written "entirely in pencil, and by the deceased, except her signature and that of two witnesses, Harriet A. Collins and Margaret W. Bostwick, which were written in ink. It is written upon four half sheets of legal cap paper placed together and doubled orice, forming a kind of a book, fastened at the point of doubling with a pin. The pencil writing is on seven continuous pages as you turn to the left. " On the top of the seventh page there is simply the word “ books.” It is impartant that we should give, as far as possible, a copy of this extraordinary paper, with its erasures, blanks, marks, and interlineations. We were favored upon the argument with the original instrument, and as far as it can be reproduced here it is as follows:

I, Mary E. Barber being of sound mind and capable of making my will declare this will—dated June 1893—as my last will and. testament—all others made before this date memorandums, &c. I declare null and void—

1st After my lawful debts are paid, and funeral expenses—'

2 My house 37 Wm St. to be sold for whatever it may be sold for is to be divided—as follows—

1st To my faithful servant Sarah Wills—2000 dollars cash—1st of all. If house sold for 20600 it would leave .a. balance of 18000 to be divided between the following named:

The fifth page contains twenty-two articles for table use, as silver knives, a large silver salver, a silver goblet, silver forks, a butter dish, and other articles, with “1000 Thomas M. Hunt, 1000 Mary P. Benson, 1000 Edith Benson, 1000 Cornelia Benson, 500 Catharine Walsh if living with me.” The sixth page has the same names of persons as on the'fifth page, wtih the same amounts opposite their names, except that of Catharine Walsh, and in addition Helen M. Hunt, with 1,000 opposite her name, with the aggregate figures, under the amounts, of 5,000, and, below, the name of Sarah Wills, erased. The seventh page is an entire blank, except at the top occurs the word “books.” This page does not appear in the printed case, but it does in the" original paper presented on the argument. Pages 5, 6, and 7 are not signed or witnessed.

Margaret W. Bostyick testified in substance, before the surro- • gate, that she called at the house of the deceased in the evening for a friendly call, and found Mrs. Collins (the other witness to the will) and the deceased (Mrs. Collins was a nurse in the house, and attending the mother of the deceased), and that she (Boswick) asked the deceased if she had made a will, to which the deceased replied, in effect, that she had a paper all ready, and got the paper from a desk or drawer near by ; that deceased sat down with the paper, and read a part of it. And she continues:

“The beginning of the will,—it began in a formal way: ‘I, Mary E. Barber,’—I don’t remember exactly, but it was her last will and testament, and she being of sound mind and capable of making a will. I don’t remember anything else. She was sitting in the same seat she left when she went to get it. When she stopped reading I think there was a little conversation in regard to the will and the signing of it. She read until she catne to the provisions of the will. Then she didn’t 'read any further. Then she signed the will, and we witnessed it, signing our names. Before signing it she said she would sign it if we would witness it I think I said I didn’t know as it would be legal. She asked us to do it. She still had the paper in her hand. She fixed a place upon the table to lay the will,—on the desk or table in the center of the room. We were sitting on one side of it. Then she signed her name with a pen and ink. Then we signed our names. We were in each other’s presence. Mrs. Collins and I were sitting either side of a door. Mrs. Barber was at the end of the table. I think it was Mrs. Barber who wrote Witnessed by’ at the left of the signature. I think it was after signing her name. Mrs. Collins signed her name. She was asked to by Mrs. Barber. And Mrs. Barber asked me to. She was at that time of sound and disposing mind and memory, and not under restraint.”

On her cross-examination this witness said that she remembered that Mrs. Barber said that she wished Mrs. McNeil to have a certain bust; that there was considerable laughter during the time in the party about various things which were said ; that the maid, Sarah Wills, brought in something to drink, of which the party partook, that was called “root beer”; that she was under the impression that the deceased said that she left her library to Mr. Tom Blunt (who had married a daughter of the contestant), and that she thought Mrs. Barber was at the time slightly under the influence of liquor. The counsel for the contestant asked her if she had not made certain statements to him soon after the death of Mrs. Barber, and she admitted that she had told him that Mrs. Barber was at the time of the making of the paper decidedly under the influence of liquor, and that in reply to a question of his if, in her opinion, the deceased was competent to make a will at that time, the witness had said that she certainly was not. The witness, however, stated that, after reflecting upon the matter for some time, she had concluded that she was mistaken in her statements made to the counsel, and that the transaction was as she had before given it. <

Mrs. Collins, the other witness, testified that she signed her name to the paper in the presence of the deceased, but did not see the name of the deceased upon the paper, and she continued:

“She [deceased] said: ‘Girls, just for fun, put your name on this paper. Sign this paper.’ And then I wrote my name. The paper was in my hand when I-signed my name to it. I put it on a book to write my name. Miss Bostwick (the" other witness) passed, it to me to write my name. Miss Bostwick was sitting by the table, and I was sitting by the side of her, a short distance from her; about the same distance from Mrs. Barber. I signed my name, and passed the book to Miss Bostwick. Mrs. Barber was sitting at the west end of a long table in the library. After I signed, Sarah, the housemaid, was going through the honse. She [deceased] called to her to bring some wine and cookies, which she did. Then we had a jolly time,—talked and laughed. I partook a little of the liquor.that was brought in, and Miss Bostwick did. We partook of the cookies. Mrs. Barber did not partake of what was brought in in liquid form. We were there about an hour and a half, I should think. Aside from writing our names on the paper, we were visiting and partaking of our lunch. The first I heard on the subject of a will, Miss Bostwick said, ‘ Aunt Mol lie, why don’t you make your will ? Mrs. Barber said she was going to ■ make her will sometime, when she could. She called this paper she had a memorandum. She said she was going to when she had finished out what she wanted to do with, her things. She hadn’t quite finished how she wanted to dispose of them. She talked about having some one come and draw up her will. She spoke about if she should get sick, of course, she would like to have her things disposed of.—have some one draw up a will, and dispose of her things. She wanted Mr. Thomas Ilunt to have her library. She spoke of it several times that evening, and of pictures she wanted Miss Bostwick and me to have. She said nothing further about disposing of her property. Mrs. Barber went out and got a paper while we were there. She got it from a table drawer in the south library. When she started to get it she said she had a memorandum of what she wanted done with her—that she was going to have her will drawn up from this paper. She unrolled the paper, and wanted to read it to us. She ■did not read any part of it.”

The witness was asked 'if Mrs. Barber had read the portion of the will at its commencement, as stated by the other witness, and she was positive that it was not done; that the witnesses put their names at the places pointed out by the deceased. On her cross-examination she said that she did not think that Mrs. Barber was ■competent to make a will or devise real estate; that the deceased ■did not sign her name to the instrument that night, or write the ■ words “ Witnessed by,” as appears; that she was intoxicated at the time, laughed a good deal, and acted silly.

Theodore M. Pomeroy, of Auburn, an uncle of Miss Bostwick, testified that, in conversing with her, shortly after the death of Mrs. Barber, she said she didn’t know whether “Aunt Mollie [Mrs. Barber] had signed the will or not; that she [Aunt Mollie] brought out a paper and wanted us [the witnesses] to write our names to it, and we did so, and that was all there was of it.”

Several witnesses testified to the declarations of Mrs. Barber, the deceased, that she had made a will. Others testified to her declarations that she had not made one, but intended to do so. Several witnesses testified, and indeed, it seems to have been conceded, that the deceased, at the time of and prior to the making of the instrument, was in the habit of drinking intoxicating liquors, and .at times becoming intoxicated. An expert witness testified that the erasures—in some instances, in material matters — over names and amounts appear to have been written at a different time from the matter erased. Indeed, upon an inspection of the original will, the following erasures: Over “My Mother, Mary B. P. Morgan,” and “My sister Frances M. Benson,” and “ George Barber 2nd,” on the first page, and over “to my sister Cornelia McHeil, a marble bust of Father,” and over “ 1500 value,” on second page, —appear in a heavier mark or hand than the other lines in pencil in the writing, and probably were made at a different time from the other writing or erasures.

There are nine distinct erasures, five of which are material. Hone of the erasures are explained in any manner by the witnesses, or noted at the end of the will or otherwise. The only recognition made of the mother, Mrs. Morgan, or of the sister, Mrs. Ben. son, in the will as originally written, was On the first page, and, as above shown, was erased. “George Barber 2nd ” is also erased from the clause giving him an interest in the store on Genesee street. The mother is especially referred to in the third page as being feeble and aged, and probably would not outlive the decedent. In that event she would be cared for by Mrs. Benson and her children. As before said, the decedent survived her mother, who died after the making of the assumed will, in June, 1893, and the erasure of the mother’s name is suggestive, at least, under the circumstances, that it was done after her death. The erasure mark being of the same character over the devise to the contestant, and to “George Barber 2nd ” of the Genesee street store, is also suggestive that those erasures were made at the same time as that of the devise to the mother. Material alterations or erasures in a will or deed are not presumed to have been made before the execution thereof, in cases like this, where no explanation of the erasures is given, and where suspicion arises upon the face of the paper and from surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper. Herrick v. Malin, 22 Wend. 388 ; Smith v. McGowan, 3 Barb. 404 ; Acker v. Ledyard, 8 id. 514; Wetmore v. Carryl, 5 Redf. Sur. 544.

A testator may make alterations in his will, but he cannot reserve to himself the power of making future testamentary gifts by unattested instruments; and where one propounds an instrument for probate, and it is doubtful whether the alterations were made before or after execution, the one propounding the instrument must make the doubt clear. See Wetmore v. Carryl, 5 Redf. Sur. 549, 550, and cases cited. It is true that, where it clearly appears that the alteration was made before the execution of the will, that portion of the will that was in existence at the time of the execution may be .admitted to probate, and the other rejected; but in doubtful cases, where material provisions have been erased or altered, and the court cannot determine from the proof whether the alterations were made before or after execution, probate must be refused and the whole instrument rejected. It is the policy of our laws to surround the instrument that is to speak for the testator, after Jie has ceased to speak for himself in regard to the disposition of his property,with certain safeguards, so that the instrument shall embrace the deliberate and complete purpose of the testator on the subject; and it is because these safeguards have been shown by experience to be wise and necessary that the courts are tenacious in upholding them. If the paper is only a memorandum, or a partial disposition of the property of the decedent, when he intended, before his will should be complete, to dispose of more of his property, or of the whole thereof, the paper, though signed and witnessed, may be rejected for incompleteness, and as not expressing the will of the decedent. An objection that the document propounded as a will, or any part of it, does not conform to the real wishes and intention of the decedent, goes to the foundation of the instrument itself. If such an objection is sustained, it is tantamount to a decision that the instrument, or a particular clause oí it, is not the will of the decedent.

The points made by the appellant here are that this will should not only be rejected on account of unexplained erasures and alterations in material respects, but because the assumed will was incomplete, and the proof shows that it did not express the whole purpose and intent of the decedent; that it was not published as required by the statute, nor was the will signed by the testator and witnessed at the end thereof as the statute requires. As to the incompleteness of this will, both of the witnesses to it testify that the decedent expressed a desire to give Mr. Thomas Hunt her library. No reference is made to this library in the paper be-for the signature, but on the seventh page occurs, at the top, the single word “ books,” without further designation, or any legatee-named therefor. On the second page, after referring to “ water bonds” and “water stocks,” this appears: “to be arranged later. Should anything happen to me before this will is finished it must, not go into litigation—brought about by my mother or any of my neices Mrs. Frances Bensons children if so they be left with nothing and all go to.” Then follows on the third page, erased, “ to-my sister." This clearly indicates that the present paper was an unfinished paper. This view is supported by the numerous blanks left in the paper, where other bequests could be filled in as the deceased might desire. The fifth and sixth pages, which are unsigned, being placed in this paper book in connection with and following the signatures, and containing the names of Mr. Hunt, his wife, and other natural objects of the testator’s bounty, with amounts set opposite their names, would seem to indicate legacies that the deceased intended to bequeath. Indeed, the whole paper bears evidence of incompleteness. It is not prepared by anyone skilled in drawing such instruments, although the case discloses there was some talk of having Mr. Hunt or another legal gentleman draw the will. It is written in pencil—an unusual mode of writing instruments so serious and of so important a character. The decedent was a woman of superior intelligence, of considerable business capacity, and had had the management of her large property since the death of her husband, which occurred in 1886. It is hardly reasonable to suppose that, knowing the importance of this instrument and of its proper execution, if she were in her right mind, she would regard this paper as in any sense her last will and testament.

As to the due execution and publication of this will, one of the witnesses (Mrs. Collins) is positive that the decedent had not signed the paper- when the witnesses signed it, and her testimony shows that there was no such publication of the will as the statute requires; that what was done by the deceased was that she produced the paper, and requested it to be signed by the two-ladies present, which they did, and which was, done under conditions that did not exhibit the deliberate and serious intent of disposing of her property by will, but rather to the contrary. The surrogate found the due execution and publication of the instrument, as against the affirmative evidence of the witness Collins, upon the evidence of the other witness (Miss Bostwick) alone. Giving her testimony the most liberal construction possible in favor of the will, it comes far short, in view of the other evidence in the case, of showing the due execution or publication of the will "by the decedent; but Miss Bostwick is obliged to confess that, before she had met with the proponent or her counsel, after the •death of Mrs. Barber, she (the witness) made declarations which, if true, prevent the probate of this instrument, and her recollection of the event, connected with the execution and publication of this paper, is seriously discredited by her declaration made when the subject was first called to her attention by Mr. Teller, the counsel, and by her uncle, Theodore Pomeroy. It is true that a will may be established by the testimony of one of the subscribing witnesses, but in the cases where this has been permitted the testimony of such witness is usually supported By an attestation clause, setting forth the performance of all the statutory requirements as to publication, signed by the witnesses, and the circumstances surrounding the execution and publication of the will and the reasonableness of the will, and the justice of its distribution of the property among the natural objects of the testator’s bounty; or other persuasive facts and conditions have come before the courts to sustain the solitary witness on whose testimony the probate is made. Here, in the case before us, in addition to the manifest incompleteness of the will, one of the two sisters of the deceased is disinherited by an erasure, and the leading circumstances of the case go to sustain the evidence of Mrs. Collins,.and her version of the affair, as against that of the other witness, who is solely credited by the surrogate.

These views lead to the conclusion that the decree of the surrogate should be reversed, with costs in favor of the appellant and respondent, to be paid out of the estate of the deceased, and the proceedings should be remitted to the surrogate of Cayuga •county.

All concur.


author: BOTTY, J.

text:
    Byron A. Beal, Resp’t, v. American Diamond Rock Boring Company, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Appeal—Conflicting evidence.
    A verdict, rendered on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion to set aside a verdict and for a new trial.
    Burton N. Harrison, for app’lt; Putney & Bishop, for resp’t.
   BOTTY, J.

— This action was brought to recover for money loaned by the plaintiff to the defendant through its president. The defense was a general denial, and upon the trial of this action the defendant was allowed to amend its answer by setting up the further defense that the loan was not made to the defendant, but to one Charles A. Tombkins individually, and that said Tomb-kins paid said indebtedness. Mo exception was taken by either party to the admission or exclusion of evidence during the course of the trial, nor was any motion made for a dismissal of the complaint; but at the close of the case the defendant moved for the direction of a verdict in its favor, which motion was denied by -the court, and an exception was duly taken by the defendant. The case was then submitted to the jury, who found for the plaintiff in the sum of $907.50. The defendant then moved to set aside the verdict, and for a new trial, on the ground that the verdict was against the evidence, and on the further ground that it was against the weight of evidence as well as the sufficiency of -evidence, and also that it was against the law.

The questions to be determined on this appeal are: First, does the evidence show that the plaintiff established his cause of action? and second, whether there was a material question of fact to go to the jury. To arrive at a proper solution of these questions, we must look to the evidence, which shows as follows: That plaintiff, on May 4, 1891, exchanged checks with Óharles H. Tombkins, each check being for the sum of $750. The check then held by Tombkins was drawn by said O. H. Tombkins, as president, and Louis F. Bostelman, as treasurer, of defendant, to the order of said O. H. Tombkins, individually, and was indorsed and delivered by him to the plaintiff in exchange for a check dated May 4, 1891, drawn by the plaintiff to the order of the American Diamond Rock Boring Company, which latter check was indorsed by the defendant in the following manner, viz.: “American Diamond Rock Boring Co., 0. H. Tombkins, President.” Mo other indorsement appeared on said check, and the same, thus indorsed, was duly presented for payment, and was paid; whereas the check given by Mr. Tombkins to the plaintiff, which was presented, remained unpaid. But later on, to wit, on or about May 15, 1891, Mr. Tombkins obtained possession of this check which he had thus given to plaintiff, on depositing with the plaintiff some bonds of the Idaho Mining & Irrigation Company, belonging to Mr. Tombkins individually, as collateral security for the payment of a loan on or before June 6, 1891,which said bonds are still retained by the plaintiff. The evidence also shows that the plaintiff had other dealings with the defendant, and also with Mr. Tombkins individually, consisting of loans made by him to defendant and to Mr. Tombkins, and that in the month of September, 1891, the plaintiff, with the consent of the defendant, collected money on the sale of some goods due to defendant, and that he applied part of said money so received by him on account of an indebtedness for money loaned, due from the defendant to the plaintiff, and that at that time the plaintiff was about to apply a portion of the surplus on account of the loan in question, to wit, the sum of $750, but upon the urgent request of Mr. Tomb-kins, the president of the defendant, he paid over the same to defendant, relying on Mr. Tombkins’ promise to pay said sum' of $750 within a week or so. Mr. Tombkins, however testified that the loan of $750 was made to him individually, and that on May 15,1891, he took up plaintiff’s check, which he had received on May 4, 1891, and which was drawn to the order of defendant., and that in lieu thereof he gave the plaintiff certain bonds belonging to him individually, and also $37.50, by check, for interest and commissions due on said loan. We think that the evidence above referred to, as well as the other evidence adduced upon the trial, was of a conflicting character, and presented material questions of fact upon the issues involved, sufficient to justify a submission to the jury. The denial of the defendant’s motion for a direction of a verdict in its favor was therefore no error, and the verdict of the jury was in accordance with the law and evidence and the same was not against the weight of evidence.

The judgment and order appealed from mus^ therefore be affirmed, with costs.

All concur.


author: FITZSIMMONS, J.

text:
    Zachariah Garbett, Resp’t, v. William H. Gedney et al., App’lts.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Partnership—Dissolution—Retiring- partner.
    Where a firm is dissolved and some of the partners, with the knowledge of the retiring partner, continue the business under the old firm name, the retiring partner is precluded from denying the existence of the copartnership. _
    Appeal from a judgement in favor of plaintiff.
    George W. Poucher, for app’lts ; Johnston & Johnson, for resp’t.
   FITZSIMMONS, J.

—The only question which the defendants’’ attorney asked to have submitted to the jury was, “ Were the defendants copartners at the time of the transactions in question ?” The trial justice declined to submit that question to tiie jury, and directed a verdict in favor of the plaintiff for $1,253.43, and he-was right in so doing. It appears, from the undisputed evidence, that up to about December, 1890, the defendants were copartners, in business, and that subsequently the defendants William H. Gedney and son, with the knowledge of his codefendant herein, and under the firm name, conducted the business transactions ii> question by permitting the old firm name to be so used by William A. Gedney ; and, business' under said firm name being carried on as usual, William H. Gedney, the .retired partner, is estopped from denying such copartnership. It was his duty to see that William A. Gedney ceased using the old firm name, and ceased doing business under that name. His failure to do so precludes him from denying the copartnership, and he must suffer the result of his own negligence or indifference. The plaintiff was certainly justified- in assuming that existence of such copartnership. Norquist v. Dalton, 32 St. Rep. 240; Dreher v. Connolly, 16 Daly, 106 ; 30 St. Rep. 674. Besides, the case fails to contain the statement that all the evidence is contained therein. We must, therefore, assume that sufficient evidence of the copartnership in question was submitted, and for that reason the ruling of the trial justice above referred to was proper.

The judgment must be sustained, with costs. ;

All concur.


text:
    Charles F. Soutamayd, Resp’t, v. Charles A. Jackson et al., App’lts.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Parties—Joinder.
    Under a contract of suretyship for payment of rent, which recites that each of the two tenants is to pay one half of the rent, and that each of the two sureties is to be liable for only one tenant’s portion of the rent, a joint action cannot be maintained against the sureties.
    3. Same—Trial—Dismissal oe complaint.
    In such case, the court should grant a motion made by the defendants* attorneys, severally, at the close of the case, to dismiss the complaint, where it appears for the first time on the trial that different causes of ac- - tion are embraced in the complaint.
    Appeal from a judgment in favor of plaintiff,
    A. P. & W. Man, for app’lt Jackson ; James Armstrong, for app’lt Campbell ; A. D. Pape, for resp’t.
   FITZSIMONS, J.

—The plaintiff leased certain premises to

Charles S. Campbell and Charles I. Jackson, sons of the appellants, and they defaulted in the payment of the rent fixed by the lease, to the extent of |506.66 and interest. The defendants were sureties for the payment of the rent, but under their contract, as we interpret it, they are severally liable for one-half of the whole indebtedness, and not jointly for the whole thereof. Their said contract is as follows:

“ The above office being rented at the request of Charles A. Jackson and James D. Campbell, as sureties, they agree that the tenants shall pay the rent and perform their agreement on their part above written, without requiring any notice of default from the said landlord ; that is to say, the tenants being sons of the sureties, and each tenant is to pay one-half the rent, the sureties being themselves only for their sons’ shares, respectively.”

It therefore appears that the plaintiff and defendants, for the purpose of fixing the liability of each one of the defendants to plaintiff, agreed that each one of the tenants mentioned in the lease was liable for one-half of the rent therein mentioned; and to that extent, and for the shares of' their respective sons, the defendants severally bound themselves to pay any rent unpaid. The plaintiffs and the defendants, of course, had the right to fix the extent of the liability of the defendants, and limit the same. This was done in the surety clause under consideration, and, no-matter what was the liability of the lessees, the defendants can only be held under the contract they made, to the limit thereof, but no further. They plainly fixed the limit by saying that each defendant would pay one-half of the whole rent due. This is the plain intent and meaning of the contract with plaintiff.

The trial justice should have granted the motion made by the defendants’ attorneys, severally, at the close of the case, to dismiss the complaint. The complaint herein was sufficient and definite, and therefore the defendants were not required to move to make the complaint more definite; and certainly they could not have demurred thereto, as suggested by respondent’s attorney. Their objection was made at the trial, when, for the first time, they could properly object to the sufficiency of the plaintiff’s cause of action, because there, for the first time, its inffirmity and insufficiency appeared.

The complaint should have been dismissed, upon the defendants’ motion, because different causes of action were embraced in the complaint. The objection also appeared for the first time when the surety clause in question was offered in evidence at the trial, and the defendants, as we have pointed out, were each liable for one half of the rent. Each defendant was liable for a claim or demand, but not the same claim or demand; and each defendant was liable, as the surety clause runs, for his son’s share, and it was therein agreed that such share would be one-half the sum due. Although the demand against each defendant would be for the same sum, and was based upon the same written instrument, yet we believe that the cause of action against each defendant was separate and distinct. Section 454 of the Code permits a plaintiff only to join as defendants in the same complaint several persons where they are liable under the same instrument for the same demand, which is not the case, as we have endeavored to show.

For the reasons given the judgment must be reversed, and the complaint dismissed, with costs. This disposition is made because under our rulings, it is not possible for the plaintiff to succeed upon a new trial.

It would therefore be useless to order one.