text:
    In the Matter of the Probate of the Last Will and Testament of Schuyler Skaats, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December, 1893.)

    1. Will—Undue influence.
    The law indulges in the presumption that undue influence has been used where a client makes a will in favor of his lawyer.
    2. Same.
    Whether undue influence has, or has not, been exerted in a given case, is a question of fact.
    3. Same.
    In this case any presumption of undue influence arising from the fact that the will was drawn by the testator’s brother, who was named as a beneficiary, was rebutted by the facts.

      4. Same.
    Unreasonableness in the disposition of a testator’s property is not a ground for disturbing it, but only a circumstance, which may be considered -with other circumstances bearing upon either the question of testamentary capacity or undue influence.
    Appeal from decree of the surrogate admitting will to probate.
    This is an appeal from a decree of the surrogate, admitting to probate the will of Schuyler Skaats, deceased, taken by his widow, Catherine H. Skaats, and three daughters of a deceased brother of the testator.
    Schuyler Skaats, the testator, was born at Geneva, N. Y., in 1818, married in 1866, and died in 1890, without issue, at the age of seventy-three. Some seven years before his death, and on May 22, 1884, he made his will, and on August 21, 1884, a codicil thereto, wherein he republished his will. By the will and codicil the testator sought to dispose of the joint estate of himself and wife, which was worth, in 1884, $558,475; of which amount $186 505.83 was left to the widow. Of this latter amount, $140,802.94 was admittedly the separate and individual property of the wife which she owned at the time of her marriage, and which had been mingled with his own ; thus making the value of the bequest to Mrs. Skaats, $45,702 89. By the second paragraph of the will the testator stated it to be his intention to restore to his wife the entire amount of her separate and individual estate, and also to give her in addition thereto a reasonable part of his own property. The remainder of his property lie divided among his surviving brothers and sisters, and a son of his deceased brother Gideon, making no mention of the three contestants, children of another deceased brother.
    The grounds of objection on which the contest is made are, that the deceased was of weak mind at the time of the execution of the will, and subject to the undue influence of his brother, Bartholomew Skaats, and that the will itself was unreasonable, and contrary to the admitted declarations of the testator.

      John M. Boioers, for app’lt, Catherine H. Skaats; David McClure, for resp’t-proponent; Thomas G. Shearman, for. resp’ts-legatees.
   O’Brien, J.

Upon the question of testamentary capacity the law is well settled, and the leading case of Delafield v. Parish, 25 N. Y., 9, is stated as follows: “It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relation to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his 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. 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 is competent to dispose of his estate by will.”

Weeks, running into months, were consumed in eliciting facts bearing upon the question of the testamentary capacity of Schuyler Skaats, deceased. It would exceed the bounds of any opinion to collate from the three large volumes of testimony all the details of the life of the deceased, partly brought out on behalf of the contestants, which it is claimed tend to establish mental weakness, and partly bn behalf of the proponents to refute such theory. We must therefore content ourselves with grouping together the most salient features of the case and then deduce our conclusions.

It appears that the testator had been a man of regular habits and was a painstaking and marvelously accurate bookkeeper, and kept by his own hands, by a system of double entry, one of the most perfect sets of books that the experts had ever seen, which balanced year by year down to a penny, he having made the last balance January 1, 1883; that during 1883 he made the entries in the different books correctly, and continued to correctly enter his items down to April 30, 1884, and that in the fall of that year the accounts were kept in a more irregular manner, which irregularity gradually increased until his death.

They also attach great weight to the diaries kept by the testator, commencing with January, 1884, and running to within two days of his death, which contain minute entries of his daily life; contestants especially relying upon numerous entries of calls of nature, and of his having taken doses of tonics, liver invigorators and purgative medicines, and of bis symptoms in consequence, and other trivial incidents.

Again, reference is made to photographs of the deceased introduced in evidence, taken at different periods of his life, one in 1878, one in 1886, one in 1888, and one in 1890, which certainly show that as years went by he changed in appearance and became older looking, but which are of no assistance to us in determining whether or not in 1884 the testator was of weak mind.

It is further contended that weakness of mind is shown from the fact that in his latter years, beginning in 1883, the testator had occasional spells of unconsciousness, called by his wife “ indigestible turns," that he would sometimes scream or shout apparently without cause; that he had many odd manners and habits, such as making puns, reciting poetry in a showy manner, pasting pictures in books, shaking hands with hotel waiters, smoking in bed, wearing cap and gloves .while eating, etc.

As against all this, it is shown that he impressed people outside his family as being somewhat eccentric, to be sure, but neat in appearance, pleasant and cheerful,, a good joker, well read, intelligent, a good judge of pictures, very shrewd in matters of business and hard at a bargain; that many of his peculiarities were the habits of long years—such, for instance, as his punning propensities, and conversing with waiters and shaking them by the hand, and that his diaries for the years 1843 and 1853, which were produced, contained entries substantially similar to those in the diary for 1884. His occasional screams would appear to be explained by the fact that he suffered from a bad rupture, which at times gave him great trouble, causing him to cry out with pain. Even his failure to keep his books after the summer of 1883 may be sufficiently accounted for on another theory than failure of intellect. He had then passed his sixty-fifth year, and had long been out of business; his digestion was much impaired; he was troubled and sometimes tortured with rupture, and he was constantly dosing with powerful medicines, which he sometimes took under protest to allay -the anxiety of his wife, at whose suggestion, also, in the fall of 1883 he commenced the habit of driving out about ten o’clock in the morning, for the benefit of his health. His diary shows further that in 1884 he and his wife generally drove out in the afternoon a second time, and that he was accustomed to take a short nap in the day time. Hnder these circumstances it would be entirely natural in him to gradually give up the superfluous labor of keeping such an elaborate set of books.

But more than anything else, when it is made to appear that the testator during the very years when he is alleged to have been imbecile had the control and management of a large amount of property, buying and selling bonds, and that he never made a bad investment, but that the market value of his securities had. increaséd considerably at the time of his death, that he constantly watched the fluctuations in the values of his securities-—the principal part of which fluctuated wildly during the years 1883, 1884 and 1885, and frequently recorded the fact in his diarj', these facts show such firmness and sound judgment as could not have been exercised by a man of feeble mind. Moreover, the person most intimately associated with him, Mrs. Staats, the principal contestant, both before and after the making of the will, reposed the utmost confidence-in his business sagacity, trusting him with the management of all her fortune, which he kept invested, and from which she received a large income.

By reference to the dates, it will be noticed, that the more marked features of physical and mental weakness relied upon by contestants appeared subsequent to 1884, and while it was entirely proper, as bearing upon the impairment of the testator’s mind and body, to admit such testimony, it must be remembered that the will was made in May, and the codicil in August, 1884, about seven years prior to testator’s death, and that those are the important dates. It is conceivable that, by reason of physical and mental weakness, one might be deprived of testamentary capacity, just prior and subsequent to a period when such capacity existed, and the question in all such cases necessarily must be as to the mental condition of the testator at the date when the will was made.

In regard to the period prior to 1884, although some evidence was presented bearing upon the nervous results to the testator growing out of the panic of 1873, it appears that his recovery was sufficiently marked to make this simply an episode in his life which did not permanently impair either his body or mind. So that in January, 1883, concededly, the testator was in sound mind, amply competent, not only to make a will, but to enter into any contract. About that time he was attacked with the first of a long, series of what has already been alluded to as unconscious or “indigestible ” turns, consisting of a short attack of unconsciousness, during which “ he turned red in the face, became rigid and seemed gone.” That these occurrences resulted from attacks of indigestion is made apparent, because from this trouble the testator suffered for many years, which not only accounts for the amount of medicine he is shown to have taken during the latter years of his life, but to some degree may account for the watch that he kept upon his physical condition, resulting in the minute entries in his diary, some of them indelicate and disgusting as to his physical needs and acts.

In August of that same year, 1883, the testator had a serious fit of illness at Lake George, and testimony was adduced showing that while so suffering he was at times delirious, and that his mind was considerably disturbed. During this period he was unconscious of his surroundings, forgetful of his friends, occasionally violent and possessed of delusions, which were the result of a fevered and delirious mind. That he recovered, however, is equally certain, and though this attack may have had a marked effect upon him both mentallyand physically, it did not take away from him that grasp of his affairs or that ability to look after them which had distinguished him throughout his life. The most that can be said is that to some extent both mind and body may have been impaired, but his recovery left him in a condition so that he was able to understand his acts, and so as to produce the impression upon those outside of his family circle that he was entirely rational. Such a conclusion, moreover, is enforced not only by the successful way in which he administered his own and his wife’s estate, but by his conduct in the ordinary affairs of his daily life, including the preparation for and the final execution of the will.

Exclusive of the testator’s own diary, the contestants furnish no evidence having specific reference to the month of May, 1884 ; while on the other hand it was shown by five witnesses who had interviews with him in that month that they regarded him as of sound mind, and from the diary, accounting for each day in the month, the inference is fairly Reducible that he was in sound mental and bodily health and accustomed to walk and ride out frequently alone.

We cannot upon this ground, therefore, agree with the contestants that the evidence established a wapt of testamentary capacity; but, on the contrary, we think it .is abundantly shown that he understood the nature of the act, and possessed a mental grasp greater and stronger than in many of the cases that could be cited has been held sufficient.

This brings us to a consideration of the second ground urged, which it is insisted by the appellant was entirely overlooked by the learned surrogate.

It is claimed here, as it is suggested it was claimed below, that although reliance was placed upon the fact that the want of testamentary capacity had been established, and that even though this were not supported, a case was presented wherein one in an enfeebled state of body and mind was unduly influenced 'by another.

As said by Bedfield on the law, etc., of surrogates’ court,' 4th ed., p. 159. “The finding that the testator had capacity to make a will is not inconsistent with the finding that the same was made under restraint or undue influence. Undue influence must be an influence exercised by coercion, imposition or fraud, and not such as arises from gratitude, affection or esteem, and its exertion upon the very act must be proved. It will not be inferred from opportunity and interest. But the exercise of undue influence need not be shown by direct proof; it may be inferred from circumstances, though the circumstances must be such as to lead justly to the inference that undue influence was employed and that the will did not express the real wishes of the testator.”

As to the character of the evidence necessary to establish such a charge, and upon whom the burden is placed, the rule is thus given in Marx v. McGlynn, 88 N. Y., 370. “ It is not sufficient, however, for the purposes of establishing undue influence, to show that the will is a result of affection or gratitude, or the persuasion which a friend Or relative may legitimately use; but their influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which the testator would not have made if left freely to act his own pleasure, and this kind of influence will not generally be presumed, but must be proved like any other fact by him who alleges it. But there are certain cases in which the law indulges in the presumption that undue influence has been used, and those cases are where a patient makes a will in favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser, or where other close confidential relationships exist. Such wills, when made to the exclusion of the natural objects of the testator’s bounty, are .viewed with great suspicion by the law, and some proof should be required beside the factum of the will before the will can be sustained.”

Under well settled principles of law, therefore, whether undue influence has or has not been exerted in a given case is a question of fact, and it becomes necessary here as in every other instance where the claim is made to weigh the testimony and determine therefrom the fact of the existence or non-existence of undue influence acting upon the testator.”

- Here the charge is made that the testator was controlled in the disposition of his property by his brother Bartholomew, and the evidence sustaining such charge is mainly derived from Bartholomew’s testimony. He tells the story of the making of the will and codicil, from which it appears that the testator first spoke to him about making the will on May 7,1884, at the Buckingham Hotel, where he had called at the request of Mrs. Skaats upon another matter in which he was acting as counsel. The testator furnished him with memoranda of the different bequests he proposed to make, from which, the next day, Bartholomew, prepared a draft will. On the 9th the testator called and took away the draft, and on the 12th or 13th he called again and had a further consultation about the will, asking certain questions as to what would happen in the event of certain contingencies with reference to the specific legacies. The final changes were made in the will, after which it was engrossed and then carefully read over by the testator, and his name signed at the end of every page, and on the 22d of May, in company with his brother, the testator took the will to the office of the Farmers’ Loan and Trust Company and executed it. After it had been executed the testator received a copy, and Bartholomew kept a copy. With respect to the codicil, the testator had spoken to his brother about it at the Buckingham Hotel previous to going to Saratoga in June, 1884; and upon meeting him in Saratoga in August, the testator spoke to him again about it, suggesting that the share of W. W. Skaats, who was insolvent, had better be put in trust. The testator prepared the codicil himself; suggestions wére made as to its form by Bartholomew, and some alterations made in accordance therewith. Bartholomew never saw the codicil as it was finally executed, he having left Saratoga before the day of its execution.

The testimony is nowhere contradicted, but, on the contrary, is confirmed by the diaries produced by the contestants after his story was told. By such direct evidence, derived from two independent sources, viz., the testimony of Bartholomew Skaats, .and the testator’s diary, the one agreeing with and confirming the other, and neither being contradicted, and in the absence of evidence enabling any inference of undue influence to be-in directly drawn, the surrogate’s opinion seems to be fully supported when he says: “I cannot find any evidence which, according to the well settled rules of law, would authorize me to reject these papers upon the ground that they were obtained by an improper and undue influence exercised by anybody over the decedent. The evidence convinces me that both the will and codicil were prepared by him without any improper interference.”

Upon the question of unreasonableness the claim of the contestants is that as the will divided the greater portion of the estate among the testator’s own brothers and sisters, and out oí so large an estate made so small a provision for the widow, when, according to the testimony of the sisters of the widow, he had led them to believe her interest under the will would be much larger, such an unreasonable disposition of his property, regardless of the claims of his wife, and contrary to his expressed intentions, could-only have been the result of ulterior and sinister-influences exerted upon the testator’s weak mind. On the contrary, we have reached the conclusion from our examination of the case that the the testator was mentally competent to make a will, and that the will and codicil were his free acts. This being shown, the fact that the provisions of the will were inequitable and unjust would furnish no ground for disturbing it. But it is evident that, from the testator’s point of view, no injustice or unfairness was intended. He had no children, his wife was a rich woman in her own right, with an income which he might have thought to be in excess of her real wants, while his own family were comparatively poor, and he was no doubt convinced that if he should leave them out of his own will, their fortunes would be nothing improved by any legacies from Mrs. Skaats, who had relatives of her own to provide for.

It will thus be seen that any presumption that might arise from the fact that Bartholomew Skaats drew the will in which he was named as a beneficiary is met by the other facts appearing that, in addition to being the attorney, he stood in the relation of a brother to the testator, and thus entitled in case of intestacy to a share in that brother’s estate almost equal to what he receives under the will. We regard it, therefore, as a significant circumstance, bearing upon this question, that the brother and legal adviser, who drew the will, was a beneficiary only to about the same extent as the other seven persons who, besides the widow, shared in the estate.

In the Matter of Bedlow, 67 Hun, 412; 51 St. Rep., 782, it was said by the presiding justice, Van Brunt: “In the discussion of this question it is necessary that the court should consider the-circumstances surrounding the testator at and about the time of the execution of the will and subsequent thereto. It is urged that the testator was weak and easily influenced by those who surrounded him, which fact is a circumstance undoubtedly to be taken into consideration with the other evidence, but the mere fact that he was weak and easily influenced does not in itself raise the presumption that such influence was exercised simply because a will such as was satisfactory to the appellants had not been made by the testator. * * * And while it is undoubtedly true that it is always difficult to produce testimony showing undue influence over a testator, yet the mere fact that the opportunity of exercising undue influence has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence by no means raises a presumption that such influence was exercised.”

In this case, with the opportunity afforded, had he wished to exert an undue influence, as it was not exercised for his own particular advantage, we think the inference can be justly drawn, either that he did not attempt it, or that the testator was not amenable to such influence.

In disposing of the argument based upon the unreasonableness of the will, but few words will suffice. As to the failure to provide for the three nieces who contest, the explanation is furnished by the testimony showing that the testator had little personal relations with them during his life, and never regarded them as objects of his bounty; and were it not for the failure to recognize the claim of the wife to a larger share in his estate, there would be no basis upon which to urge that the will was unreasonable, because it was in all respects just such a will as it was most natural for the testator to make.

With respect to he wife, considering the part that she played in bringing a fortune to her husband, and in the amassing of his own wealth, and the care and solicitude which she exhibited— which latter was so assiduous as to be at times the subject of complaint even on the part of the testator himself—there would appear to be just cause for dissatisfaction upon her part in not receiving more of her husband’s estate; yet, on the other hand, the testator no doubt thought tlmt the $140,000 which she owned in her own right, to which was added about $45,000 from his estate, was, considering her needs and childless condition, sufficient for her wants. As already said, however, unreasonableness in the disposition of a testator’s property is not a ground for disturbing it, but only a circumstance, which may be considered with other circumstances appearing as bearing upon either the question of testamentary capacity or undue influence. We do not understand that it is here urged upon the question of testamentary incapacity, but is insisted that because the testator had stated at different times that it was his intention to make up his wife’s fortune, together with what she herself possessed, to an amount equal to $250,000, that a failure to carry out this intention is indicative of the influence of some other mind in changing such intention.

As said in Horn v. Pullman, 72 N. Y., 276: “A change of testamentary intention, as bearing upon the allegation of undue influence in procuring a will, is sometimes an important circumstance, but its force depends mainly upon its connection with associated facts. * * * A testator has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will, and he may, if he choose, exclude his children, or divide his estate among them unequally. The question in all such cases is, was the will a free act of a competent testator ? The reasons for the change of intention in this case do not very satisfactorily appear.”

So, in the case at bar, we may say, that if the testator had any such intention, the reason for the change in his views does not satisfactorily appear, but giving such weight as that circumstance is entitled to, in connection with the other facts here appearing, we think that the learned surrogate was right in his conclusion that at the time Mr. Staats executed these two papers he was capable in law of making a will, “* * * and that both the will and codicil were prepared by him, thought out by him, and executed by him without any improper interference.”

The decree should be affirmed, with costs against the appellants, Follett and Parker, JJ., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Henry Winthrop Gray, as Receiver of the Property and Assets of Levy Brothers & Company, Resp’t, v. Moses S. Levy et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December, 1893.)

    1. Receiver—Partnership.
    Where a receiver, appointed penitente lite of firm property upon an allegation that the partnership was a limited one, sets forth his appointment, and its validity is controverted, the question of his title is presented di- • rectly and not collaterally.
    3. Same.
    In such case, the introduction of the order appointing the receiver is not, in itself, sufficient to establish his title on a trial, in which the question of such title arises as a material issue.
    3. Same.
    Where the jurisdiction of the court to appoint a receiver is dependent upon special facts which it is essential to establish, it is competent for the defendant to put in issue such facts by denying the statements of the complaint, and an exception to a finding of such facts is available, upon appeal, to the persons taking such exception.
    Appeal from judgment of special term in favor of plaintiff.

      Ira Leo Bamberger, for app’lt Muhlhauser; Robert Payne, for app’lt Moses S. Levy ; Graiz Nathan, for app’lt Croner; George V. Brower, for app’lt Trust Company; George Zebriskie, for resp’t.
   O’Brien, J.

The plaintiff, having been appointed by an order of this court receiver of the property and assets of the limited copartnership known as Levy Brothers & Company, brought this action, asking by way of relief that a certain action brought by the defendant "Muhlhauser, in which the defendant Croner was appointed receiver of the same property of said limited copartnership, be vacated, set aside and all proceedings thereunder adjudged to be illegal, null and void.

Subsequent to the bringing of the action, the defendant, the Kings County Trust Company, by an order in supplementary proceedings, was appointed receiver of all the property, etc., of the firm of Levy Brothers & Co., judgment debtors, and of the property of the individual members of said firm. The defendant, the National Park Bank, having obtained an attachment, shortly afterwards commenced a suit in equity in this court against Levy Brothers & Co., and upwards of 130 other defen dents, who had seized in many actions of replevin the stock of goods on which the attachment of the bank had been levied, in aid of the attachment, for the purpose of procuring therein an adjustment of all conflicting claims and lights in respect to the attached property. In that action, Mr. Gray, the plaintiff here, was duly appointed receiver and qualified. ’ The facts in relation to the appointment of the Kings County Trust Company and of Mr. Gray in the suit brought by the National Park Bank, respectively as receivers, were alleged by supplemental complaint.

It will thus be noticed that we have here as parties four receivers claiming under diffierent titles an interest in all or some of the property of the firm of Levy Brothers & Co. The plaintiff’s title as special receiver appointed in the National Park Bank suit need not be considered for two reasons: First, that it was intended to extend only to the property which had been seized under the attachment of the bank; and secondly, because the court below held that it would administer the estate through only one of the conflicting receiverships, and for that purpose held in favor of plaintiff’s title in the Hardt suit, in which this plaintiff was originally appointed, and wherein and upon which title he originally brought this action.

The answer of the defendant, Moses S. Levy, admitted that he and those associated with him “undertook to form a limited partnership.” The defendant, Muhlhauser, denied upon information and belief the allegation with respect to the formation of the limited partnership. The Kings County Trust Company by their answer put in issue the allegation as to a limited partnership, and alleged that the firm of Levy Brothers & Co. was a general, and not a limited, partnership. To the finding that it was a limited partnership Moses S. Levy and certain of the other defendants excepted.

The Hardt action, in which plaintiff was appointed receiver, proceeded, and a judgment was entered, among other things holding that the firm was a limited copartnership, and from the judgment thus entered an appeal to this court was taken. Upon such appeal the judgment was reversed, and it was held that the partn ershi'p was a general and not a limited one. Hardt v. Levy, 25 N. Y. Supp., 248; 55 St. Rep., 706. Mr. Justice Parker, in his opinion, says: “The plaintiffs, as general creditors of a firm of which the defendants are members, instead of proceeding in actions at law to secure their respective claims, instituted this action in behalf of themselves and all others creditors of the firm, having for its object the appointment of a receiver, and ultimately a ratable distribution of the assets of the partnership. Such a suit cannot be maintained against the members of a general partnership, but it was long ago held in Lnnis v. Lansing, 7 Paige, 583, that it might be against the persons forming a limited partnership after insolvency.” These plaintiffs chose to proceed in equity, as they may if the partnership be limited, and may not if it be general”

. This action proceeded to judgment before the decision above referred to was reached; but there can be no doubt that if it can be resorted to, it is conclusive upon the title, not only of this plaintiff, but also of Oroner in the similar action brought upon the theory of a limited partnership in Kings county.

The question then presented is, is the judgment of the general term, which is conclusive upon the plaintiff’s title, available to the defendants upon this appeal ?

It is urged, and with much force, that though an issue as to whether it was a limited or a general partnership was raised by the answer of certain of the defendants, this was not presented in the form of a counterclaim upon which any affirmative relief was based, and though it were, that the validity and regularity of the plaintiff’s appointment as receiver in the Hardt suit are not open to question in this action. It is insisted by the respondent that in the order appointing the plaintiff receiver, as the court had jurisdiction of the parties and proceeded in accordance with the provisions of the statute, its order cannot be attacked collaterally by inquiring whether the court erred in the decision of any question of law or fact involved in making the order, but that this can only be done by an- appeal or by a direct proceeding to set it aside— citing in support of this position many cases.

Though it be conceded that- the rule of law relied upon is correct, that the regularity of an appointment cannot be attacked collaterally, it must be remembered that in this action the question presented involves one of jurisdiction to make the appointment, and, it seems to us, is directly and not collaterally raised. Upon the trial, the plaintiff, in support of his title, and of the allegations of his complaint that the firm was a limited copartnership—which was the basis of the court’s right to make the original order appointing him receiver—proved the same facts substantially as appeared in the suit of Hardt v. Levy, including the certificate of limited partnership and the two certificates purporting to be renewals of the same. It was also made to appear that there was not at any time any copartnership agreement between the partners other than the certificate of limited partnership.

The question, therefore, whether the plaintiff’s title was directly or collaterally involved, it seems to us, is to be disposed of by a consideration as to whether or not, without the finding which was made in this action upon the allegations and proof that the firm of Levy Brothers & Co. was a limited partnership, and that by order in an action brought by a general creditor against such copartnership he was appointed receiver, a judgment would have been given in his favor.

The right of the court to appoint the plaintiff as receiver depended upon the fact being established that it was a limited partnership; and the introduction of the order of appointment without additional proof to establish this fact would not have justified the finding which was the basis of the plaintiff’s title, not only to the receivership, but to maintain this action itself.

In Springs, receiver, v. The Bowery National Bank, 63 Hun, 505; 45 St. Rep., 327, the complaint alleged that the plaintiff was appointed receiver of a corporation by an order of the supreme court, which order the answer alleged the court had never acquired jurisdiction to make. Upon the trial the plaintiff put in evidence the order, which had been duly filed. As said in the opinion in. that case: “We think that, in the face of this denial in the answer, the order was not sufficient to prove the appointment of the plaintiff as receiver of the corporation. * * , * And it was necessary to prove the commencement of an action, and that the court obtained jurisdiction over the corporation as provided in that section of the statute before cited, § 1, chap. 378, Laws of 1883, to sustain the allegation that the plaintiff was duly appointed receiver.”

So here, where the jurisdiction of the court to appoint a receiver is dependent upon special facts which it is essential to establish, it is competent for the defendants to put in issue such facts by denying the statements of the complaint, and an exception to a finding- of such facts is available upon appeal to the persons taking such exception.

We think, therefore, that as the title of the plaintiff was directly involved, and as the finding supporting such title was excepted to and was erroneous, under the case of Hardt v. Levy, supra, the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., and Follett, J., concur.


author: Lansing, S.

text:
    In the Matter of Proving the Last Will and Testament of John Wheeler, Dec’d.

      (Surrogate’s Court, Rensselaer County,

      Filed October, 1893.)

    1. Evidence—Declarations.
    All acts or declarations, forming part of the act or transaction to be proved so as to explain or qualify it, are admissible when such transaction or act forms the fact in issue or is deemed relevant thereto.
    8. Will—Testamentary capacity.
    No presumption of want of testamentary capacity arises from old age alone, nor from enfeebled condition of body or mind.
    3. Same—Undue influence.
    Where it has been once proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is upon the party who alleges it.
    4. Same.
    Where the alleged testator is quite old and somewhat weakened, by reason of age and infirmities, both in body and mind, the burden is shifted upon the party in whose interest an important change in the will is made.
    5. Same.
    The presumption, which the law raises under such circumstances, is one of fact and not of law, and may be repelled.
    Application for the probate of the will of John Wheeler, deceased.

      King & Specie, for proponent; Cornelius Snyder and John P. Albertson ( William J, R. Roche, of counsel), for contestants.
   Lansing, S.

John Wheeler, late of the town of Sandlake, in this county, died March 3, 1891, aged 86 years. He left surviving him no widow child or descendant, brothers or sisters, but nephews and nieces and grand-nephews and nieces, some twenty in number, his only heirs at law and next of kin. His wife died some 15 years before him and after the death of his wife and. down to the time of his own death, he lived on his farm in Sandlake in the family of his nephew, George P. Gardner. The deceased had taken this nephew into his family upon the death of his mother. Wheeler’s sister, when he was an infant only a few weeks old, and they lived together upon the farm for a period of more than fifty years.

The farm upon which he lived, consisted of about 150 acres, the value of which is variously estimated from $5,000 to $8,000. He was also the owner of a small amount of personal property of the value of about $1,500.

The instrument propounded for probate as his last will was executed September 22, 1890, about six months before his death. The will was prepared by his neighbor and friend, Andrew J. Smart, who also attended its execution. It was witnessed by two persons residing in the neighborhood, who had known the testator for many years. By this will the bulk of the testator’s property, which consisted of his farm, stock and farm equipments, was devised to his nephew, George P. Gardner, subject to the payment of $1,500. Legacies of $50 each were given to some ten of his nephews, nieces, grand-nephews and grand-nieces, and two legacies of $100 each to the wife and daughter of George P. Gardner. It appeared that Mr. Smart drew and attended the execution of a prior will, in 1885 or 1886, which was destroyed at the direction of the testator after the execution of the will of September 22, 1890. All the legatees mentioned in the earlier will are also legatees in the will in question except Col. Silas Wheeler and John A. Coons, both of whom died after the making of the former will, and except, also, Hiram Taylor, a grandnephew of the deceased, who was given $1,200 under the will of 1885, and nothing under the present will. No legacies were given to the wife and daughter of George P. Gardner in the first will.

By the former will George P. Gardner and John A. Coons, since deceased, were named as residuary legatees and devisees, but in the last will George P. Gardner remained as the sole residuary legatee and devisee.

By the former will George P. Gardner was given the farm and its equipments in the precise terms employed in present will, except that in former will he took the farm subject to the payment of $2,500 instead of $1,500, as provided in the last will. A legacy of 100 was given to each of tire four children of the testator’s grand-nephew, Hiram Taylor, and a like sum was given to each of testator’s nephews and nieces, Col. S. Wheeler, Michael Wheeler, John C. Wheeler, Alvina Goewey and Zilpha Fielding, and to his grand-nieces, Cora Metcalf and Teletta Upham; each of these legacies was reduced to $50 under the last will.

Andrew J. Smart was named as executor in each will, but filed his renunciation after presenting the latter instrument for probate.

None of the contestants, except Hiram Taylor, a grand nephew; John G. Wheeler, nephew, and Zelpha Fielding and Lucy Met-calf, nieces, are mentioned, as legatees in the present will or in the will of 1885. The three last named nephews and nieces receive $50 less in the present will than in the will of 1885.

The substantial difference between the will of 1885 and the present will, so far as the contestants are concerned, is the omission in the latter instrument of a legacy of $1,200 to Hiram Taylor contained in the will of 1885.

The probate of the will is challenged by the contestants upon the ground, first, that the testator did not possess testamentary capacity; second, that undue influence was exercised over the testator by George P. Gardner in procuring the present will. .

I shall not attempt an extended analysis of the evidence, which is very voluminous, upon the question of testamentary capacity of the alleged testator. It is sufficient to say, after a very careful examination of the evidence, I am satisfied, notwithstanding the age of the testator and his considerable impairment in physical and mental vigor, that he possessed sufficient mind and memory to make the will in question.

It is well seeded in this state that “ no presumption of testamentary incapacity arises from old age alone. Nor can incapacity to make a will be inferred from enfeebled condition of mind or body.” Horn v. Pullman, 72 N. Y., 269 ; Van Guysling v. Van Kuren, 35 id., 70; Bleecker v. Lynch, 1 Brad., 458, 472 ; Van Alst. v. Hunter, 5 Johns. Ch., 148.

In the latter case the chancellor says: “ The control which the law still gives to a man over the disposition of his property, is one of the most efficient means which he has in protracted life to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been produced by fraudulent arts and contains those very dispositions which the circumstances and the situation and the course of natural affection dictated.”

The true test of testamentary capacity is, did the testator have sufficient intelligence to comprehend 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 ? If so, he was in law of sound mind and memory. Horn v. Pullman, supra; Delafield v. Parish, 25 N. Y., 10.

“ It is not necessary that he should be able to collect all these in one review. If he understands in detail all that he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of the will.” Wilson v. Mitchell, 101 Penn. St., 492, 502; Schouler on Wills, § 83.

“Nor is it necessary that the particular will and its provisions should have originated with the testator, provided he understands and adopts and sanctions whatever disposition was proposed and embodied in the instrument.” Tunison v. Tunison, 4 Brad., 138 ; Schouler on Wills, § 233.

Let us consider the testimony in the light of these rules. It appears that although the testator’s health was quite feeble, yet he was able to be about the house when the will was made and during the same fall and after the will was executed, was engaged in light work about the farm. He dug potatoes, husked corn and busied himself about such farm work as an industrious old man might do.

Considerable testimony was given by the contestants tending to show that the deceased was very feeble physically during the . last years of liis life; that he was afflicted with a hacking cough, had occasional lapses of memory, that he wandered off and was lost, on one occasion (the same year the will was executed), and was found in the field upon his .farm, where he .had - fallen upon the ground and remained unable to rise. That upon that and other occasions he appeared dazed and confused and could not walk without assistance, and on occasions complained of his head and said he could not remember as well as he used to. The family physician, Dr. Nichols, also testified that in _his judgmnet his mind was impaired; that in his opinion the deceased was not of sound mind on the 22d day of September, 1891, but the doc tor on further examination stated that he could not express such an opinion disconnected from knowledge which he gained in attending the deceased professionally. This testimony is, therefore, inadmissible, and was excluded. But if retained, sufficient facts were not stated -by him to warrant me in .accepting this opinion even in connection with the contestants’ other evidence against a great body of testimony from the acquaintances, neighbors and friends of deceased, who testified from personal intercourse with him during the latter years of his life, touching his health, intelligence, physical and mental vigor, as evidenced by his appearance, conduct and conversation, to the effect that not only about the time of the making of the will, but for a considerable period prior and subsequent thereto, the testator possessed a large measure of intelligence and mental vigor for a man of his years; that he was affected with no delusions, that his conduct was natural and his conversation rational and intelligent, compelling the conclusion that testator was possessed of a sound and disposing mind and memory when the will was executed on the 22d of September, 1891. T have not overlooked the fact that Mr. Smart, the draughtsman of the will and a very intelligent and conscientious witness, testified that the testator's mind was not on that occasion sprightly, but was dull and heavy, did not work well, his memory very much impaired.” yet he testified that he read the will to Mr. Wheeler twice, first the draft or memorandum, then the prepared instrument (indeed, the prepared instrument itself was read to him twice, once on each of two different days before its execution), and he states,, “ I think he understood it (the will) as I read it, he probably understood the paragraphs as I read them;’’ he-adds, “but possibly it slipped his mind as I read the next one,” a surmise I hardly think" justified by his description of what occurred there. For Smart states that Mr. Wheeler answered all the questions which he asked him in regard to the changes which he desired to made in the former will without requiring any assistance, and further, that before he (Smart) commenced to prepare the memorandum for the present will, the deceased stated to him his reasons for changing the former will, and that the changes were made in accordance with the reasons so stated. And, finally, as to whether the testator understood the changes made,in the former will and provisions of the present will, the witness testified: “ It looked as though he (testator) had made up his mind, before he commenced, to cut them (the legacies) down one-half, except one, and that was to be stricken out." And this is substantially all he did by the latter will. I am quite sure the testator knew what he intended to do in disposing of his property by his will and that he carried out his intention.

Upon the whole, then, I conclude, in the light of all the testimony and the rules of law applicable thereto, that the testator was of sound mind and memory at the time of the execution of the will.

But another and more serious question is presented by the second defense, namely, that the will was induced by undue influence exercised by George P. Gardner, the principal beneficiary. For the discussion of this question, it is important, preliminarily, to determine the admissibility of certain testimony which was offered upon the trial, decision upon which was reserved. It is charged that George P. Gardner, the principal beneficiary under the will, improperly influenced the mind of the testator to omit the legacy of §>1,200 from the present will which the testator had given in the former will to Hiram Taylor, a grand nephew of the testator, who had lived with him' a great many years. For the purpose of proving this charge, it was material and proper for the contestants to show not only interest and opportunity, but a disposition on the part of Gardner to produce the result. For the purpose of showing this disposition it was proven that Gardner personally procured the attendance of the draghtsman to draw the will. In this connection the contestants offered to show further that on the way over to Wheeler’s house, a distance of a mile or two, Gardner said to the draughtsman that the old gentleman (Mr. Wheeler) wanted alterations made in the will and wished him (Mr. Smart) to come down to make them ; that Gardner further said “ that he was surprised that Wheeler should have given his property or any of it to a drunkard, and he named as the drunkard Hiram Taylor ; ” and further said, “ that the old gentleman had given away more property than he had ” and had he known that there was any such intention to give his property to Hiram Taylor, he would have had a deed of the farm before that.”

The introduction of this testimony was strenuously resisted upon the ground that the declarations or admissions of one of several legatees are not admissible to impeach the validity of a will, where such admissions may affect others not in privity with the party. In support of this position they cite : Matter of the will of Baird, 47 Hun, 77; 14 St. Rep., 172; Brush v. Holland, 3 Brad., 240-242; Shailer v. Bumstead, 99 Mass., 112, 124.

Undoubtedly such declarations are inadmissible as independent testimony to show what a legatee or devisee had done or intended to do, to improperly influence a testamentary disposition of property. But it seems to me that for the purpose of showing motive or disposition to do so, the statement made to the draughtsman by the devisee, in connection with his act of securing the attendance of the draughtsman, was part of the res gestae and is competent. It might serve to characterize the act of the devisee in procuring the draughtsman, which was proven to show a disposition tó do the act charged. The declaration seems clearly within the rule th'at all acts or declarations forming part of the act or transaction to be proved so as to explain or qualify it, are admissible when such transaction or act form the fact in issue or is deemed relevant thereto. Stevens Digest Law of Ev., page 6; Waldele v. N. Y. C. & H. R. R. R., 95 N. Y., 274; People v. Davis, 56 N. Y., 95, 102; Eighmy v. People, 79 N. Y., 546.

Surrogate Bradford, in the case of Brush v. Holland, supra, while holding such declarations competent, insists that they should have little weight as reflecting the mind of the person making them, since they may spring from a boastful spirit. But it is not necessary to determine the weight of this testimony here.

Having decided to admit this evidence, it is important to consider its effect in determining the burden of proof. Ordinarily when it has been well proven that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is upon the party who alleges it. Tyler v. Gardiner, 35 N. Y., 559 ; Baldwin v. Parker, 99 Mass., 79, 85; In re will of Martin, 98 N. Y., 196; Matter of Green, 67 Hun, 531; 48 St. Rep., 450.

But it seems to me, where, as in this case, interest and opportunity are shown; and testimony tending to show a disposition upo(n the part of the person charged with undue influence has been introduced, and it further appears that the party charged had peculiar opportunity of influencing the mind of the alleged testator by reason of his being a member of his family, dependent upon him for the supply of his wants and the comforts of a home; and further that the alleged testator was quite old and somewhat weakened, by reason of age and infirmities, both in body and mind, that the burden is shifted upon the party in whose interest an important change in a will is made; and that he should be called upon to produce satisfactory evidence that the provisions made in his own favor in the later will following the change in the former will, was the result 'of the free act and will of the testator, entirely uninfluenced by any device or improper influence upon his part

The presumption which the law raises under such circumstances is one of fact and not of law and may be repelled. Marx v. McGlynn, 88 N. Y., 371.

The proponent in this case insists that he has assumed the burden and furnished ample evidence repelling any and every imputation of fraud or undue influence on his part, and shown that the instrument propounded was the free act and will of the testator. In support of this contention he insists that the testimony shows clearly and satisfactorily, first, that the will was executed in due form with all the solemnities required by the statute, by a person of sound mind; that it was made after careful explanation and consideration of every paragraph of the will; that several hours were spent in its preparation by the testator and the draughtsman upon two separate days; that it was carefully read to him twice, upon different days, before its execution, and received his approval; that the history of the drafting and the execution of the will show that no undue influence was exerted by anyone at that time; in addition thereto the draughtsman testified, “I think when I arrived there he (testator) knew what he was going to do.” Second, that the. will in question was drawn along the lines of the former will prepared five or six years before by the same draughtsman, without the knowledge of Gardner, when the testator had the aid of an old and tried friend, and was engaged several hours in its preparation and framed it with full knowledge of, and after due consideration, of the claims of his various relatives upon his bounty. That said will contained substantially the same provisions in favor of George P. Gardner as the present will. That by the former will George P. Gardner was given the farm, the stock and its equipments, charged with the payment of legacies to the amount of $2,500. That at that time the farm was of the probable value of $10,000 or $12,000. That at the time of the death of the testator the farm was estimated to be worth only from $5,000 to $8,000 showing an estimated shrinkage in value from one-third to one-half. Third, that at the time the last will was drawn, the testator stated to Mr. Smart, the draughtsman, the reasons he desired to change his will. The reasons stated were that “ he did not want his property drunk up in rum ; ” that he did not want to give money to dead men, and that he had given away more than he had. That it appeared that the will of 1885 was changed only so as to conform to the instructions which the testator gave to the draughtsman. That the changes made were, first, to eliminate the names of those deceased since the former will; second to lessen the amounts given to the ten or twelve legatees in the former will from $100 to fifty dollars, only three of whom are contestants of the present will. That the remaining contestants, except Hiram Taylor, received nothing under either the former or the later will; third, that the testator believed Hiram Taylor to be a drunkard, and for that reason omitted him in the new will. That it was of him the testator spoke when he said, “I don’t want my property drunk up in rum.” Fourth, that George P. Gardner was the child by adoption and the object of affection of the testator ; that he was reared in his family, given his family name, which he retained until he .was twenty-one years of age (when it was changed by reason of some difficulty about voting. That George married, brought his wife to his home, and after the death of the testator’s wife, twelve or fifteen years prior to his own, the testator became a member of Gardner’s family on the farm, ate at his table and resided with him until his death, a period of more than fifty years. That the mutually acknowleged relation of parent and child had existed between them during this entire period. That the testator had an abiding affection for George, which among other evidences was manifested by the fact that although Hiram Taylor (who was also reared in the family of the deceased and remained with him from the time he was three years of age until he was about twenty-three) was in his youthful days much more tractable, industrious and respectful than George in his treatment of the testator, yet Hiram was permitted to leave when he married, while George was retained and continued with the testator until his death. That although a considerable amount of testimony was given showing that George at times was disrespectful to, and at times chided, the testator, using language more forcible than polite, yet it appeared that upon most occasions it arose from solicitude on the part of George for the health or safety of the testator. And it is insisted that deceased never received any intentionally harsh or unkind treatment from Gardner or his family and never even complained of any; that on the contrary the evidence shows that his treatment by Gardner, and especially by Gardner’s family, was very kind and considerate and was so regarded by the deceased. Fifth, that considering the relations of these parties, there is nothing in the change made in Gardner’s favor by the later will, charging the farm with the payment of $1,500 instead of $2,500 or the legacy of $100 each to his wife and daughter, which may not reasonably be presumed to have resulted from motives of gratitude and affection or been prompted (in view of the change of the value of the testator’s estate) by his desire of carrying out his original intent of giving Gardner the farm without burdensome charges. And finally, that the deceased stated repeatedly during bis life, when in full health and strength, that he regarded George P. Gardner as his son and expected his property to go to him, and complained that his other relations had shown him little or no attention and said they would get but little from him.

To this contention the contestants reply that, assuming that the testator did intend to make George P. Gardner his principal beneficiary and give him the bulk of his property, yet it is apparent that George P. Gardner did exercise his influence to exclude Hiram Taylor from any share in the testator’s property, and that he substantially received the benefit of it for himself and his family, and they insist that the very fact that the testator was found uttering the same reasons for changing his will as those which were given by George P. Gardner to the draughtsman when he was conveying him to the testator’s house to make the change, furnishes cogent evidence that this particular act was inspired by George P. Gardner, and they insist that his will dominated the will of this feeble old man and produced the change in the will against him.

This contention has much force, and deserves and h"as received careful attention. But it seems to me that it is met by this consideration. If it was not true, as stated and believed by the testator, that Hiram Taylor was a drunkard and that “ his money would be likely to be drunk up in rum,” it was in the power of the contestants to show that fact. They failed to do so, although ample opportunity was afforded upon the trial and even after the trial, a proposition on the part of the surrogate to open the case and take further testimony upon that point, if either party desired, was declined. It is clear that the deceased believed the charge; and acting upon that belief it was certainly not an unreasonable act to exclude Hiram-Taylor from any share or portion of his property.

Although I have held that the burden of proof was upon proponent to repel the presumption of undue influence arising from Gardner’s declarations and his somewhat peculiar relations to the deceased in this case, yet the proponent having shown that the testator held and gave a sufficient reason for the change in his will, it seems to me that it then devolved upon the contestants, in order to fasten their charge of undue influence upon George P. Gardner, to show not only that the" charge was untrue, but that George P. Gardner, knowing it to be untrue, or not believing or having reason to believe it to be true, induced the testator to believe it to be true, and thus produced the result in question.

George P. Gardner could not testify under the law as to what he did or did not tell the testator upon the subject, but it is very "obvious that the testator, who was upon good terms with his neighbors and in constant intercourse with them and with the men who were employed upon the farm—of whom there were several every year—had ample opportunity to learn of the character and habits of Hiram Taylor, who resided in the same neighborhood, from others beside George P. Gardner, So that no inference is necessarily drawn from the fact that Gardner and the deceased held and expressed the same opinion concerning the habits and character of Taylor, that the testator received his information upon the subject, whether true or false, from Gardner.

The law applicable to this branch of the case seems to me to be exceeding well stated in Schouler on Wills, § 238.

“If the disposition appears on the whole a just and reasonable ene,- or even such as the testator would naturally have made under -all the circumstances with a due perception of the act engaged in, the property possessed and the' fit claimants to his bount}*", little remains to urge against the will unless it can be positively shown that the will notwithstanding was not that of the testator.”

And I venture to add the following—that where a satisfactory Teason is given by a testator for a change in his will, the law will not presume that the change was produced by undue influence upon the part of another even though such person be solely benefited thereby, but there must be absolute proof to establish the charge.

In conclusion, I am satisfied that the deceased intended that the property which he had accumulated by so many years of patient toil, industry and economy, should be received and enjoyed by his foster son, who was the principal beneficiary in his former will, drawn beyond question wliep he was competent to make one. That his legacies to his other relatives, except Hiram Taylor, were regarded by him as of comparatively slight importance, and their reduction in amount under the circumstances of this case, does not warrant the presumption of fraud or improper influence. That "the legacy to Hiram Taylor was omitted for the reason stated by testator and there is no evidence that the charge was untrue or that it emanated from George P. Gardner. And finally, I am satisfied that to set aside this will and scatter this property among the twenty odd nephews, nieces, grandnephews and grandnieces of ■ the testator, many of whom were not named in either of his wills, and to deprive George P. Gardner of the estate which the testator had in both wills planned to give him, would be a gross wrong both upon the living,and upon the dead.

Let proper findings be made and a decree entered accordingly.


author: Van Brunt, P. J.

text:
    Edward Wright, App’lt, v. Robert W. Chapin, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December, 1893.)

    1. Appeal—Decision puesuant to § 1021.
    Upon an appeal from a final judgment, in which notice of an intention to review the interlocutory judgment is given, the decision filed, pursuant to § 1021 of the Code, may he reviewed, though no notice of an intention to review such order is given.
    2. Pleading—Foreign law.
    An averment in a complaint that, under and pursuant to the laws of Canada, and the practice and rules of the court in which the judgment was rendered, it has all the force and effect of a personal judgment, and that the plaintiff .is, under the said laws, rules and practice, entitled to enforce the judgment against the defendant in all ways, and with the same force and effect with which he could enforce a personal judgment, and the person to receive the payment for the purpose of enforcing the same, is a sufficient allegation of the effect of a foreign law.
    3. Same.
    In such case, and under such an allegation, the judgment creditor is entitled to maintain, in New York, a personal action against the judgment debtor to recover the amount of the judgment.
    Appeal from final judgment sustaining defendant’s demurrer to the amended complaint.

      A. 0. Bounds, for app’lt; H. B. Olosson, for resp’t.
   Van Brunt, P. J.

In this action a demurrer was interposed to the complaint, and after a trial of the issue of law, a decision was made'by the court pursuant to § 1021 of the Code sustaining the demurrer upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action, and that there was a defect of parties apparent upon the face of the complaint in that George Goodwin was not made a party plaintiff or defendant; and directing that an interlocutory judgment be entered sustaining the demurrer, with leave to the plaintiff to amend, and further directing that in case the plaintiff should fail to amend, final judgment should be entered sustaining said demurrer, with costs. The interlocutory judgment was thereupon entered; and the plaintiff not having amended, the final judgment was entered, and from such final judgment this appeal was taken, and notice was given that upon the appeal the interlocutory judgment would be brought up for review.

It is now urged that inasmuch as the appeal is taken from the final and interlocutory judgments, and no notice is given of any intention to review the order directing their entry, the appeal brings up only the question whether the judgment conforms to this order; and certain decisions of the superior court are cited to sustain this proposition, and also the case of Cambridge Valley Nat. Bank v. Lynch, 76 N. Y., 514. The head note of this last case is presented upon the brief; but an examination of the opinion will show that the consequences of the head note, which are relied upon by the respondents, by no means follow.

It will be seen that the provisions of § 1021 in reference to the decision of the court upon the trial of issues of law raised by demurrer are similar to those of § 1022 in reference to what is to be done by the court or referee upon the trial of the whole issue of fact. In the one case the decision of the court or the report of the referee upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon. Upon the trial of the whole issue of fact the decision of the court or the report of the referee must state separately the facts found, and the conclusions of law, and it must direct the judgment to be entered thereupon.

But we have never heard it advanced but once, that in the case of an appeal from a judgment entered from a referee’s report, or the decision of the court, in order to bring up for review the proceedings upon the trial, it was necessary to mention that the decision, in which was stated the facts found and the conclusions of law, and which directed judgment to be entered thereupon, would be brought up for review. The theory upon which this fallacy rests in the case of a demurrer, is that the decision mentioned in § 1021 is an order. It is no more an order than the decision mentioned in § 1022. In the case of Cambridge Valley Nat. Bank v. Lynch, it is held that there is no appeal from such a decision, although it may be an order, because there is no provision in § 1347 for such an appeal.

But the court hold that the only way in which such a decision may be reviewed is upon an appeal from the interlocutory or the final judgment. It by no means holds, however, that by the provisions of § 1316 the right of review is extended to every order upon appeal from a final judgment whether mentioned in § 1347 as an appealable order or not. There is no intention of extending the' right of appeal by § 1316. All that is intended to be done is to permit the party who feels himself aggrieved by an order, which under the provisions of § 1347 is appealable, and has not already been reviewed upon a separate appeal therefrom to review such order upon the appeal from the final judgment. This is plainly stated by § 1316, which does not seem to admit of the construction claimed.

We think, therefore, that upon an appeal from an interlocutory judgment the decision filed pursuant to § 1021 may be reviewed, and also upon an appeal from a final judgment in which notice of an intention to review the interlocutary judgment is given; precisely the same as upon a final judgment, a decision filed under § 1022 may be reviewed, although no notice is given of an intention to review such an order. It seems to us clear- that the appellant is correct in his practice.

The complaint in this action alleged that in October, 1889, the plaintiff purchased certain Canadian lands of one Goodwin, and gave him a purchase money mortgage of $60,000. Subsequently, the defendant being about to purchase these lands of the plaintiff, he and Goodwin made an agreement by which Goodwin agreed to accept, in satisfaction of the unpaid $60,000 of purchase money and of the mortgage given by the plaintiff, the sum of $52,500; and the defendant promised to pay Goodwin this reduced sum. Shortly afterwards the defendant purchased these lands of the plaintiff, and by the deed agreed to pay Goodwin the $52,500 and to relieve the plaintiff of and from, and to indemnify him against, all liability whatever to Goodwin. The defendant also, by the deed, agreed to relieve the lands from the lien of the mortgage, but no time in which the defendant was to perform is alleged. The defendant thereafter paid Goodwin some $30,000 of the $52,000.

The plaintiff subsequently repurchased the land, but avers that by the deed of purchase the obligation of the defendant in the premises were unaffected. Subsequently Goodwin brought an action in the Canadian courts against the defendants and others, to which the plaintiff was not a party, and obtained a judgment decreeing a foreclosure of the lien of Goodwin upon said lands and directing a sale thereof for the satisfaction of said lien. Subsequently the plaintiff commenced an action against the defendant in the Canadian courts to enforce the liability of said defendant to said plaintiff arising from the facts above set forth, in which action the defendant duly appeared, and such proceedings were thereupon had that in May, 1892, the plaintiff duly recovered a final judgment directing that said defendant pay into court the amount due said Goodwin in respect to his said claim, the amount thereof to settled, etc., which amount was subsequently settled at $22,429.28, and the costs were thereafter taxed and allowed at the sum of $318.60.

The complaint then alleges: That, under and pursuant to the laws of the Province of Ontario and the Dominion of Canada, and pursuant to the practice and rules of the said court the judgment above mentioned was given, and has all the force and effect of a personal judgment for the' said sum of $22,429.28, and for the said sum of $318.60, as and for costs and disbursements, making a total of $22,747.88, in favor of the said plaintiff against the said defendants, and plaintiff was and is, under and pursuant to the said laws, rules and practice, entitled to enforce the’ said judgment against the said' defendent in all ways,and with the same force and effect in or with which he could enforce a personal judgment against the said defendant for the said amount, and that under and by virtue of the said laws, rules and practice, the plaintiff is the person to receive payment for the purpose of enforcing the same.

The complaint further alleges that payment has been demanded, and no part thereof has been paid, and that the whole of said sum is due and owing for which judgment is demanded.

A demurrer to this complaint is interposed to the effect that another action, was pending between the same parties for the same cause; that there was a defect of parties in that Goodwin was not joined as a party; and that it did not state facts sufficient to constitute a cause of action. The court decided that the amended complaint does not state facts sufficient to constitute a cause of action, and that there is a defect of parties. An interlocutory judgment was entered as above mentioned, and subsequently a final judgment, and from these judgments this appeal is taken.

It is urged that the complaint does not state facts sufficient to constitute a cause of action, because by the prayer for judgment, the plaintiff seems to recover for himself the money directed to be paid into the Canadian court by the Canadian judgment. It is urged that the judgment determined that it is into the Canadian court, and not to the plaintiff that the defendant must make payment, and when the plaintiff comes into this court in a suit on that judgment, and in the face of it asks that the money be paid to him, it would seem that the rule to which he appeals requires that he be thrown out of court; and the case of Green v. Republic Fire Ins. Co., 84 N. Y., 572, which was an action on a Mississippi judgment, is cited in support of this proposition. All that that case decides is that it appearing upon the face of the declaration that the action was brought for the use and benefit of the plaintiff, in view of the rule of the common law which prevailed in that state, that choses in action were not assignable, it was held that the judgment roll furnished presumptive evidence that the plaintiff was the owner of the judgment, and that the plaintiff in the Mississippi action was merely a nominal party having no interest in or right to control it, and that he was not a trustee in any legal sense under the Code, and that the plaintiff alone could sue upon the judgment.

In view of the allegation in the complaint that pursuant to the practice and rules of the Canadian court, a judgment entered in the manner in which this judgment was, entitled the plaintiff to enforce the judgment against the defendant in all ways, and with the same force and effect with which he could enforce a personal right to maintain his action and collect the money.

But it is urged that the appellant’s allegation in respect to the laws, rules and practice of Canada and Canadian courts is not sufficient to justify any proof of the law and practice of Canada, and the case of Rothschild v. Rio Grande Railway Co., 59 Hun, 455; 37 St. Rep., 44, is cited, which case undoubtedly sustains the contention of the respondent, so far as relates to foreign laws. But this case is, we think, overruled by the case of Schluter v. Bowery Savings Bank, 117 N. Y., 125-131; 27 St. Rep., 980 ; in which an allegation that a surrogate of Hew Jersey had jurisdiction and was duly authorized and empowered by the laws of Hew Jersey to issue letters of administration was held to be sufficient to authorize proof of the laws of Hew Jersey and the jurisdiction of the surrogate is issuing letters.

The allegation in question in the case at bar being admitted by the demurrer, there seems to be no reason why the action upon the part of the plaintiff as the party entitled to collect the money, cannot be maintained.

The judgment should, therefore, be reversed, with leave to the defendant to answer, upon payment of the costs of the appeal and. of the demurrer in the court below.

O’Brien and Parker, JJ., concur.


author: O’Brien, J. Van Brunt, P. J.—I concur.

text:
    Mary Scott Rowland, Resp’t, v. Margaret A. Howard et al., as executors, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January, 1894.)

    Decedent’s estate—Claims.
    . Strict proof is required when the claim is advanced, for the first time, long after decedent’s death. ,
    Appeal from j udgment entered on report of referee in favor of claimant.

      Redfield & Redfield (Amasa A. Redfield, of counsel), for app’lt ; Epstein Brothers (Alfred Epstein, of counsel), for resp’t.
   O’Brien, J.

This is a statutory action upon a claim against a decedent’s estate, and was commenced by the entry of an order of reference on the consent of both sides. The action was brought to recover the sum of $250 on an oral agreement for professional services for a course of treatment to the complexion, and skin foods and preparations furnished by plaintiff to the defendant’s testator.

The plaintiff’s case rested wholly on the testimony of her husband, who stated that he remembered calling with his wife upon Mrs. White, the decedent; that he took no part in the conversation when the agreement now sued upon was made, and that he could only give it in fragments; that decedent spoke about being treated, but objected to the price, which the plaintiff met by saying she would make the price one-half, and a time, namely, seven o’clock in the morning, was fixed for the visits of the decedent to plaintiff’s place for treatment. In answer to a leading and direct question as to whether the plaintiff stated that she would render her services for $250, the husband said: “Yes, certainly,” and that it was in response to that, that Mrs. White said: “All right.” He further testified to seeing his wife work on Mrs. White’s face a number of times, and when asked to fix the number he subsequently stated that he would say five or six times. This witness also said that the money was to be paid after the treatment was concluded, and in answer to a question as to whether he knew what the treatment consisted of, he summed up the whole subject of the agreement and what was done under it, by the parties, as follows:

“ I know what preparations she uses and what she does. I do not know just what treatment Mrs. White received. I can’t state to my own knowledge that the treatment was entirely completed. I know something was done to Mrs. White. I do not know whether the treatment was completed. Sometimes ten, sometimes twenty and sometimes thirty treatments make up a course, according to the complexion. It depends upon the work to be done and the price to be paid. In the majority of cases about ten or twelve treatments constitute a course. The agreement between my wife and Mrs. White was for a course of treatment. Of course it was to be completed before the money was paid, and 'the money was not to be paid until after it was completed. That was Mrs. White's agreement.”

Another witness produced by plaintiff was a woman who testified that during October and November, 1891, which was the time covered by the alleged contract, she was in the employ of Mrs. White, but would not swear that she was discharged from such employment for cause. She stated that Mrs. White oh one occasion said she wanted her to go and see the plaintiff and “see if you can get her to do my face for half price, and tell her that I can send her lots of customers, and see if you can arrange it for me ; you know how to manage it.” This witness testified that she called on the plaintiff, but did not state that she reported the result of the interview to Mrs. White, or that, the latter ever mentioned to her the fact that she received treatment from plaintiff; and her sole knowledge of whether Mrs. White was treated or not was derived from the fact that she saw bottles of preparations, which had labels belonging to, and a picture of, the plaintiff upon them.

As against the testimony of the husband, that the treatment all took place, according to agreement, between seven and eight o’clock in the morning, the defendants produced three witnesses, who were practically personal attendants upon Mrs. White during the period in question, who saw her every day, and who testify that Mrs. White never left her rooms during the hours when the plaintiff’s husband testified he had seen her undergoing treatment by his wife at her place, as agreed upon.

With respect to the hour, if material, we think there is a preponderance in favor of the conclusion that the decedent was never treated by the plaintiff, between the hours as fixed in the husbrnd’s testimony.

As to the date, it is claimed that the contract sued upon was made in October 1891, and that the course of treatment was concluded in November, 1891.- Mrs. White died in June, 1892, and the first information of plaintiff’s claim obtained by the executors was in a letter as follows:

Jan. llflh, 1893.

“Mrs. M. A. Howard:

“ I enclose herewith bill for $250 against the estate of Mrs. M. H. White, but as Mrs. White missed a few of her treatments, and for the purpose of an early and amicable settlement, will, if I re- ■ ceive check now, deduct $100 from bill. Trusting this may be entirely satisfactory, I beg to remain

“Yours very truly,

‘ “ Mary Scott Rowland.”

No proof was offered tending to show that during the seven months that elapsed between the time when it is claimed the contract was completed and Mrs. White’s death any bill had been rendered or any request made to her to pay; but it does appear that Mrs. White, subsequent to the date of the alleged completion, called at the plaintiff's office and bought and paid for some rouge. And it seems remarkable that the husband, who testified that he was the plaintiff’s man of business, in no way referred to the fact that she was indebted, and that nothing was said upon the subject of an obligation of Mrs. White to the plaintiff.

These circumstances to which we have adverted create a suspicion against the good faith and validity of the claim. Such suspicions, however, should not defeat the claim if satisfactorily established, but should incline us to apply the rule “ that claims withheld during the life of the alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon satisfactory proof.” Kearney v. McKeon, 85 N. Y., 139; see, also, Forbes v. Chichester, 30 St. Rep., 370; Ulrich v. Ulrich, 60 N. Y. Super. (J. & S.), 237; 42 St. Rep., 216.

In his opinion, the learned referee in this case, says: “It is true that there is no proof of the precise number of times the claimant treated the decedent’s complexion, nor as to how many visits composed the course of treatment for the decedent. ” And, after adverting to the fact that the claim was sustained by the testimony solely of the husband, he continues: “ Under these circumstances, the court should be guided by the probabilities of the case as they appear from the character of the evidence, and I cannot resist the conviction, from a careful consideration of all the evidence in this case, that the agreement for a course of treatment was substantially complied with, and that thé treatment was substantially completed by the beginning of November, 1891.”

We think that the first error into which the learned referee fell was in relying on the probabilities, instead of, as he should, upon satisfactory proof: and the second was in assuming that the testimony showed that the course of treatment was substantially complied with.

We have quoted at length from the most significant portion of the testimony of the husband, and it will be noticed that he stated that the agreement was that a completion of the course of treatment was a condition precedent to" any, payment being made by the decedent, and that he did not know whether or not the treatment was completed. This testimony, emphasized by the statement in the letter that the decedent had missed some visits, which was the reason assigned by plaintiff for offering to deduct $100 from a bill of $250, does not tend to establish the conclusion of the referee that the contract was either entirely or substantially completed.

Upon the whole case, fit can be said that no such satisfactory proof was offered in support of the claim as would have justified a conclusion favorable to the claimant. That the decedent visited the plaintiff’s place and may have received some treatment appears ; but that there was an agreement by which the decedent undertook to pay for a complete course the sum of $250, and that in accordance with the terms thereof the plaintiff completed such agreement by giving the course of treatment, either fully or substantially, or that the amount thus due remained unpaid and owing at the time of Mrs. White’s death, is not satisfactorily established.

As against what the husband himself characterized as a fragmentary statement of the conversation between the plaintiff and the decedent, and the uncertain character of the services, if any rendered by his wife as the result of such conversation and what services in fact were rendered, and the times at which they were rendered, we have testimony, negative it is true in its character, yet throwing around the whole claim of plaintiff a cloud of suspicion and distrust, which should not permit a recovery unless more satisfactory evidence were presented of the validity of the claim. As was well said in Forbes v. Chichester, supra:Public policy requires that demands against deceased persons must be” strictly proved, and to relax that rule would give rise to evils far outweighing the inconvenience resulting from its strict enforcement, inconveniences which would be obviated by the exercise of ordinary care in procuring written or other evidence of contracts not dependent for validity upon the continuance of the life of either party.

Our conclusion is, therefore, that the order confirming the referee’s report, and the judgment entered thereon, should be reversed and a new trial ordered, with costs to appellants to abide event.

Van Brunt, P. J.—I concur.

There was no proof of the terms of any contract.

Parker, J., concurs.


author: Pryor, J.

text:
    American Surety Co. v. George A. McDermott.

      (New York Common Pleas, Trial Term,

      Filed October, 1893.)

    Evidence—Parol.
    Parol evidence is incompetent to transform a personal liability into a representative obligation as receiver.

      John J. Crawford, for pl’ff; John Franlcenheimei•, for def’t.
   Pryor, J.

In an action by this defendant, as receiver of the National Ammonia Company, against John Harrison and others, the plaintiff herein bound itself for costs incurred by this defendant in that action. To indemnify the plaintiff herein against such costs, the defendant herein executed the paper in controversy.

The instrument purports to be between “ George A. McDermott, receiver,” of the first part, and the American Surety Company of the second part; and the defendant covenants for “ himself his heirs, administrators, successors and assigns,” that he, “George A. McDermott,” will pay the premium upon plaintiff’s engagement for costs, and that he, “ George A. McDermott,” will indemnify the plaintiff against such costs. The paper concludes, “ in witness whereof, said party of the first part has hereto set his hand and affixed his seal; ” and is signed, “ George A. McDermott, receiver.”

It is not open to question but that, by the terms of the instrument, the defendant bound himself, in his individual capacity. Schmittler v. Simon, 101 N. Y., 554 ; Willis v. Sharp, 113 id., 591; 23 St. Rep., 670; Ryan v. Rand, 20 Abb. N. C., 313; 9 St. Rep., 523 ; De Witt v. Walton, 9 N. Y., 571; Pumpelly v. Phelps, 40 id., 59, 67. Nothing to the contrary can be deduced from the decision in Whitford v. Laidler, 94 N. Y., 145, for there the agent expressly assumed to contract.for his principal, and employed no language susceptible of construction as a personal promise or engagement.

Whether the oral evidence, admitted provisionally, be competent and effectual to transform the personal liability apparent on the face of the instrument into a representative obligation as receiver, is a more interesting and difficult problem.

That the defendant, as receiver, had no power to bind the interest of which he was representative (101 N. Y., 557) is an important circumstance in the solution of the question. For it is not to be assumed that either party would enter into a nugatory engagement; still less, that the plaintiff, demanding indemnity against its risk, would be content with a paper which afforded no indemnity whatsoever.

For support of his contention defendant relies upon Schmittler v. Simon, 114 N. Y., 176; 23 St. Rep., 160. But in that case the .adjudication was that where the words of an instrument “ are not entirely intelligible, oral evidence of the circumstances attending its execution may be admissible to aid in the interpretation.” Page 188. In the instrument before me I detect no. obscurity or ambiguity. The word “ successor ” is an apt and appropriate term to designate one to whom property descends (6 Lawson’s Rights, etc., § 3108; 2 Bouvier’s Law Diet., 681; Wharton’s Law Lexicon, 634; Anderson’s Diet, of Law,, 986); and in association with the words “ heirs,” administrators ”, and “ assigns,” plainly imports a devolution of charge upon the obligor’s estate.

At all events, by the most precise and explicit language, the defendant binds himself to the performance of his covenant.

“Evidence to explain an ambiguity * * * is received where doubt arises upon the face of the instrument as to its meaning, not to enable the court to hear what the parties said, but to enable it to understand what they wrote, as they understood it at the time. Such evidence is explanatory, and must be consistent with the terms of the contract.” Thomas v. Scutt, 127 N. Y., 133, 141; 38 St. Rep., 692. “ The court did not err in excluding oral evidence of the understanding of the parties at the time the defendants executed their indemnity agreement. There was * * * no ambiguity therein, which, within the rule, would justify oral evidence as the understanding of the parties. The court was bound to seek for that information in the agreement executed by the defendants, which must be assumed to embody it.” American Surety Company v Thurber, 121 N. Y., 655, 659; 30 St. Rep., 489.

In Schmittler v. Simon, 114 N. Y., 176; 23 St. Rep., 160, the court explicitly reaffirms the cardinal rule that “ when an agreement is reduced to writing, no oral evidence is admissible to vary, qualify, explain or contradict its terms; ” and vindicates a deviation from the rule in the litigation before it, upon the express ground of an ambiguity apparent on the face of the paper.

The incompetency of parol evidence to modify the meaning of a written contract is all the more obvious and incontestible in case of an instrument under seal. Briggs v. Partridge, 64 N. Y., 357; Kiersted v. Orange, etc., R. R. Co., 69 N. Y., 343; Schaeffer v. Henkel, 75 N. Y., 378.

Judgment for plaintiff