author: Andrews, J.

text:
    George C. Carter, Resp’t, v. Emily P. Beckwith et al., Adm’rs, App’lts.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Lunatics—Services in attempting to supersede commission,
    ■ An action may be maintained against the estate of a deceased lunatic by an attorney to recover compensation for services rendered in an unsuccessful attempt to procure a supersedeas of the commission where the inquiry was expressly sanctioned by the court.
    2. Same—Former adjudication.
    An order made during the lifetime of the lunatic, confirming report of referee fixing the amount of plaintiff's compensation and directing its payment, was reversed by the general term and the reference vacated, but the application was not denied. Held, that plaintiff's right to compensation was not res adjudicata by that decision.
    (O’Brien, J., dissents.)
    Appeal from judgment of the supreme court, general term, fourth department, modifying and affirming as modified a judg-ment in favor of plaintiff.

      John Lansing, for app’lts; P. C. J. De Angelis, for resp’t.

       Affirming 32 N. Y. State Rep., 880.

   Andrews, J.

The judgment recovered in this action is founded upon a claim for services rendered by the plaintiff, an attorney, upon the request of the intestate, in the prosecution of proceedings in the supreme court, instituted in 1871, to supersede a commission of lunacy issued against the intestate in 1855, and to have restored to him the possession and control of his property. The proceedings failed in their object, it having been determined that the lunacy still continued. The lunatic died, in 1875, and the plaintiff presented to his administrators a claim for his services, which claim was rejected by them, whereupon this action was brought.

The main question in the case is whether, under the circumstances, a liability was created in favor of the plaintiff for the value of the plaintiff’s services, enforceable in an action against the estate of the decased lunatic. It is clear, under the decisions, that the plaintiff cannot maintain the action on the theory o'f a contract with the lunatic to pay for the services arising out of an employment by the lunatic. The law is well settled that a lunatic whose lunacy has been judicially determined and for whom a' committee had been appointed is incapable of entering into any contract, and that any contract which he may assume to make while in that situation is absolutely void. Wadsworth v. Sherman, 8 N. Y, 388; L'Amoureux v. Crosby, 2 Paige, 422 ; Hughes v. Jones, 116 N. Y., 67; 26 N. Y. State Rep., 511. The court will not inquire whether the lunacy in fact continued and existed when the contract was made. The presumption of its continuance is conclusive as to all dealings after the inquisition until it has been superseded. The court, on the finding of an inquisition establishing lunacy, is vested with jurisdiction over the person of the lunatic and assumes the custody and control of his estate, which it manages through the committee appointed in the proceedings, as its bailiff or agent, and although the title of the lunatic to his property is not divested by the proceedings, he can no longer buy or sell, or enter into any contract or dealing binding him or his estate. People ex rel. Smith v. Commissioners, etc., 100 N. Y., 215; In re Otis, 101 id., 580.

The incapacity of a lunatic, whose lunacy has been judicially ascertained in lunacy proceedings, to bind himself, does not relieve his estate from debts or liabilities incurred anterior to the lunacy. But he cannot be sued without permission of the court, except at the peril of the party prosecuting of having his action restrained and of being adjudged in contempt. In re Heller, 3 Paige, 199; In re Hopper, 5 id., 489. See, also, Crippen v. Culver, 13 Barb., 424. The court, as incident to its jurisdiction in lunacy, administers the estate of an adjudged lunatic for the protection of creditors, and will apply it to the payment of his debts, the expenses of support and maintenance of the lunatic and his family, and the satisfaction of all obligations, charges and expenses which legally or equitably ought to be satisfied out of his projDerty. The question as to the allowance of costs in lunacy proceedings has been several times before our courts. It has been the usual practice to allow to the petitioner for a commission the costs and expenses of proceedings in lunacy out of the estate of the lunatic, where they have resulted in the appointment of a committee. Rule 85 of the supreme court authorizes the committee to pay such costs and expenses without the order of the court where they do not exceed fifty dollars, but if they exceed that sum payment cannot be made without the special order of the court.

It was said by the chancellor, in the case In re Giles, 11 Paige, 638, that if the petitioner fails to establish the lunacy, he must bear his own costs, but that he will not be charged with costs if he proceeded in good faith and upon probable cause. To the same effect on the last point is the remark of Chancellor Kent, in Brower v. Fisher, 4 Johns. Ch., 441. The English rule seems to be less stringent, and costs will be allowed to the petitioner, although the alleged lunatic be found by the inquisition to be of sound mind. Nelson v. Duncombe, 9 Beav., 211.

It was held in Matter of Conklin, 8 Paige, 450, that a solicitor, who unsuccessfully opposes a commission of lunacy, has no legal claim on ground of contract for his services, but that the court may in its discretion, allow the solicitor his taxable costs out of the lunatic’s estate, where the circumstances are such that the chancellor, if applied to, would have sustained or directed the opposition ; and a small allowance was made in that case.

The question here relates to the right of an attorney to recover compensation out of the estate of a lunatic for services rendered in an unsuccessful attempt to procure a'supersedeas of a commission and where the inquiry was expressly sanctioned by the court. The statute provides that in case any lunatic against whom an in ■ quisition has been found shall be restored to his right mind and become capable of conducting his affairs, his real and personal estate shall be restored to him. 2 Rev. St., 55, § 24. The statute is simply declaratory of the common law. Upon the application of a lunatic to set aside the commission, the court may in its discretion deny the application and will do so where the case is plain, or it may allow the lunatic to traverse the inquisition, or order a feigned issue to try the question of his present sanity. In re MClean, 6 Johns. Ch., 440; In re Tracy, 1 Paige, 580. In the case first cited the co'urt at first denied the application, but subsequently, on the application being renewed, directed a feigned issue. The question whether an allowance should be made to the person prosecuting the traverse out of the estate of the lunatic, or whether he should be charged with costs in case of an unsuccessful traverse, has been variously ruled, depending upon the special circumstances of the particular case.

In the Matter of Tracy, supra, the case of an habitual drunkard, upon an application made in his behalf, to be permitted to traverse the inquisition, and that a reasonable amount for the expenses of the traverse might be paid out of his estate, an issue was granted and “ as the property was large and the party had not had an opportunity to be heard on the taking of the inquisition,” an allowance was made out of the estate of the petitioner to defray the necessary expenses on his part. In Folger’s case, 4 Johns. Oh., 169, the costs of an unsuccessful traverse was charged upon a third party at whose instance and for whose benefit the issue was awarded.

In the Matter of Van Cott, 1 Paige, 489, the application of a solicitor for an habitual drunkard, who had procured leave to traverse the inquisition, for an allowance of costs of an unsuccessful traverse out of the estate of the party against whom the inquisition was found, was denied for the reason that the solicitor had a personal interest to set aside the proceedings. But the court in denying the application affirmed the doctrine that the allowance in such a case was discretionary, shying, “it denends on the character of the application and the conduct of the party.” In Matter of M' Clean, supra, the chancellor permitted the lunatic to traverse the inquisition, but decided that it should not be done at the expense of the estate. The estate was small and necessary for the support of the lunatic and his family, and the application appeared to the chancellor to be groundless. The cases show we think that no hard and fast rule has been established in this state, concerning allowance to the defeated party or his attorney of the costs and expenses of an unsuccessful traverse of an inquisition of lunacy. Where the proceeding is clearly groundless or vexatious, and is supported by no probable cause, or where it is instituted in bad faith, or for the benefit of a third party, clearly no costs should be allowed. But as this exercise of the jurisdiction of the court to deprive a person df his liberty and property on the ground of lunacy, however necessary, is nevertheless the exercise of a supreme power and should be surrounded by all reasonable safeguards to prevent mistake or fraud, so also where upon a case presented after inquisition there is reasonable ground to inquire whether the lunacy still continues, it is highly important for the protection of the rights of the party that he should be afforded all reasonable facilities for the prosecution of the inquiry, and it cannot we think be doubted that the court has the power on an application to supersede the commission, where it is convinced that there is probable cause, or even in a doubtful case, to make the reasonable costs and expenses of the traverse a charge upon the lunatic’s estate, and this although the traverse prove unsuccessful. Unless this power exists the direction of the statute that on the restoration of reason and the capacity of the lunatic to conduct his affairs, his real and personal estate shall be restored to him, would in some cases afford but a barren protection. The language of the chancellor in 1 Paige, 583, commends itself for its wisdom and equity. “ In every case of this kind,” he remarks, “ the court must exercise a sound discretion, regulated by the particular circumstances, so that while the party proceeded against is not deprived of the means of protecting his legal rights, the property which is necessary for the support of himself and family shall not be unnecessarily wasted in useless litigation.”

The further question arises as to the nature of the claim, and as to the means of enforcing it in the case of an unsuccessful traverse, but where the circumstances equitably entitle the expenses of the traverse to be charged upon the lunatic’s estate. There can be no doubt we think that during the pendency of the commission the question whether the costs of an unsuccessful traverse shall be allowed out of the estate of a lunatic is one exclusively within 'the cognizance of the court having jurisdiction of the lunatic and his estate, and that its jurisdiction to award costs and expenses can only be invoked on petition or .motion. This results from the settled practice in such cases, the fact that the court has custody of the person and estate of the lunatic, and as incident to its control the power to administer the estate for the purpose of satisfying all just and equitable charges thereon, created either before or after the finding of the inquisition and the > policy of preventing unnecessary litigation, whereby the estate may be wasted. It is a summary, convenient and inexpensive method of determining the right in each particular case. But on the death of a lunatic who is under a commission the power of the committee ipso facto terminates, and his real and personal property, if he dies intestate, descends to his heirs and personal representatives in the same manner as if he had been of sound mind and memory. 2 Rev. St., 55, § 25. There is no longer any necessity that the court should exercise a summary jurisdiction in administering the lunatic’s estate for the payment of debts or charges, and there seems to be no good reason why any claim thereon, legal or equitable, should not thereafter be adjusted and settled in the ordinary course of administration, as ip. other cases.

In the present case the plaintiff during the life of the lunatic applied to the court by petition for an allowance out of his estate for his services in the proceedings to supersede the commission. The court ordered a reference, and the referee reported that a certain sum ought to be allowed. The report was confirmed by the special term, and by its order the committee was directed to pay to the petitioner out of the lunatic’s estate the sum awarded. The general term on the appeal of the committee reversed the order of confirmation, and vacated the order of reference. The appeal to the general term was argued and submitted before the death of the lunatic, but the decision was not rendered until after his death, but the order of reversal was entered as of a date anterior to his death. We have held that the proceeding abated by the death of the lunatic, and could not be revived. In re Beckwith, 87 N. Y., 504.

It is insisted by the administrators that no action can be maintained against them by the plaintiff for his services. There was, they insist, no contract, and consequently no debt owing by the intestate, and that the plaintiff’s only remedy was in an application to the court; that any allowance in such a case is purely discretionary, and that the rendition of services in proceedings to supersede a commission of lunacy, which failed, creates no liability and cannot be made the foundation of any legal claim against the estate of the lunatic after his death. That there was no contract between the lunatic and the plaintiff, in the ordinary sense, must be admitted. He was incapable of entering into any contract whatever. There can be no mutual assent of minds, which is essential to a voluntary contract, where one of the parties is deprived of reason, and this was the situation of the intestate when the alleged retainer was made, as was conclusively established by the inquisition. The courts do enforce, in some cases, on equitable grounds, the acts and contracts of lunatics made before the lunacy has been formally established, where the other party has acted in good faith, without notice. Mutual Life Ins. Co. v. Hunt, 79 N.Y., 541. We need not here inquire as to the extent and limitation of this doctrine. But in this case the plaintiff had notice, and the point is whether the law may not imply an obligation enforceable as a claim against a lunatic’s estate, after his death, to pay for services rendered in an unsuccessful application on his part to get rid of an inquisition, where the proceedings were fair and not vexatious or groundless, and were founded upon probable cause. This doctrine is approved by the English courts. Wentworth v. Tubb, 1 Younge & C., 171; S. C, 2 id., 537 ; Williams v. Wentworth, 5 Beav., 325 ; Brockwell v. Bullock, L. R., 22 Q. B. Div., 567; Rhodes v. Rhodes, L. R., 44 Ch. Div., 94.

In Wentworth v. Tubb, the question arose on an exception to the master’s report, by which a certain sum of money was appropriated from the estate of a deceased lunatic to his solicitor for the costs of an unsuccessful, traverse to an inquisition. It was held by the vice-chancellor (Sir J. L. Knight Bruce) that the costs in such cases were chargeable as a debt against the estate, but he stated the qualification, “ subject to this: that if anything fraudulent or unfair, or perhaps I may go so far as to say frivolous or litigious, appear to have taken place on the part of the solicitor, the court may say no debt arises.”

This ruling, we think,- places the matter upon a reasonable basis. On the other hand, it affords no inducement for mere wasteful or groundless litigation, and on the other it enables a lunatic, where the court is of the opinion that reasonable grounds exist for an inquiry as to his continued sanity, to procure necessary assistance in prosecuting it The court, while it has the control and custody of the lunatic and his estate, may, as we have seen, authorize expenditures to be made in such a case. By the death of the lunatic the possession of his estate is vested in his legal representatives, and the jurisdiction of the court thereafter summarily to administer the estate, which before existed, ceases. See Sherwood v. Sanderson, 19 Ves., 280; Williams v. Wentworth, supra. There is certainly no reason why the accident of death occurring before the power of the court to settle the question of allowance to an attorney has been definitively invoked, should cut him off from subsequently claiming compensation from the estate and from the right to have the claim determined upon equitable grounds. We think, therefore, the present action is maintainable.

We are concluded by the findings of the referee, which have been affirmed by the general term, from reviewing the question of the good faith of the plaintiff in instituting the proceedings and of probable cause. The court, on a full hearing on the part of the petitioner, and of the committee and his relatives, ordered a reference to inquire as to the continued sanity of the petitioner, thereby giving its sanction to the investigation. It appears that the lunatic had a very considerable estate. He was affected with some delusions which were not disclosed in ordinary conversation, was permitted for years before the investigation to visit his friends in the city of Htica, attend dinners, entertainments, etc., without restraint from the asylum authorities, and that he was regarded by many of his friends and acquaintances as sane. Upon the facts proved and found, we think a case -was made which authorized a recovery in the action, and that the judgment should be affirmed.

The point that tne question of the right of the plaintiff to compensation was res adjudícala by the decision of the general term reversing the order entered upon the report of the referee in the proceedings taken by the plaintiff before the death of the lunatic to procure compensation, is not well founded. The order of the general term reversed the order of the special term and vacated the reference, but did not deny the original application. The decision of the general term may have proceeded on grounds entirely consistent with the claim of the plaintiff to some compensation, as for example that the allowance made was excessive. It is incumbent on a party claiming an estoppel to make out a clear case, and it cannot be sustained by doubtful inferences, or where the record is capable of a construction ponsistent with the subsequent claim. The point that the general term could not direct a reduction of the judgment and an affirmance for the reduced amout, if the plaintiff consented to the reduction, is also untenable. There was no conflict as to the value of the services on the trial. The general term, somewhat arbitrarily, we think, reduced-the recovery, and of this the defendants have no reason to complain.

These views lead to an affirmance of the judgment, but under the circumstances without costs to either party in this court.

All concur, except O’Brien, J., dissenting, and Finch, J., absent.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Rachel S. Lynk, by Guardian, Resp’t, v. Charles Weaver, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    Costs—Trespass—When plaintive not entitled to costs.
    A plaintiff cannot recover his costs in the supreme court in an action of trespass on lands where the allegation of title in his complaint is admitted, or not put in issue, unless his recovery be at least fifty dollars. In such case the claim of title does not arise oñ the pleadings, and the defendant is entitled to all the costs.
    Appeal from order of the supreme court, general term, third department, affirming order of- special term denying motion for re-taxation of costs.
    The plaintiff brought this action in the supreme court to recover damages for injuries to her real estate and she recovered a verdict-for thirty dollars. Both parties claimed the costs of the action and the clerk taxed them in favor of the plaintiff The defendant-made a motion at the special term for a retaxation of the costs, which was denied, and he then appealed from the order of the special term to the general term, and from affirmance there to this court.
    The facts appear sufficiently in the opinion.

      Simon Galkins, for app’lt; Alonzo P. Strong, for resp’t.

       Reversing 34 N. Y. State Rep., 1016.

   Earl, J.

The plaintiff in her complaint alleged that she was seized of certain land, subject to an estate in her mother who was entitled to the use and possession of the same during her minority, and that the defendant wrongfully and unlawfully entered upon the land and cut and removed therefrom certain trees of the value of $300, and thus diminished her inheritance to that amount; and she claimed that the defendant had thus forfeited to her under the statute and become liable to pay her treble the amount of such damages, and she demanded judgment for $900. The defendant in his answer expressly admitted plaintiff’s title and all the allegations in the complaint in reference thereto, and alleged that he had entered into a contract with the owner of adjoining land to cut trees thereon; that there was no fence or perceptible division line between such land and her land, and that while he believed he was cutting trees upon such adjoining land he casually and involuntarily cut trees over.the boundary line upon her land, and that the trees he thus cut did not exceed in value thirty-five dollars. At the same time with his answer he served upon her attorney, in writing, an offer to allow judgment to be entered against him “for seventy-five dollars besides costs to date.” This offer her attorney declined to accept, and the action. was brought to trial at a circuit court. The litigation at the trial was confined to the .amount of damages and to the question whether the trespass was willful or casual and involuntary. Two questions were submitted to the jury and answered by them. -

1. “ What was the actual damage done by the defendant to the plaintiff’s estate in the land described in the complaint by the cutting and removing wood and timber therefrom at the times mentioned in the complaint?” Answer, “Thirty dollars.”

2. “Was such cutting and removal casual and involuntary?" Answer, “Yes.”

Upon this verdict judgment was entered against the defendant for the thirty dollars, and $129.93 costs.

It is thus seen that the defendant has had a hard measure of justice. He defeated the plaintiff upon all the issues tried. She claimed $900 damages against him. He did not deny, in his answer, that he had done her some damage, but alleged that it did not exceed thirty-five dollars, and he offered her judgment for seventy-five dollars. She recovered only thirty dollars, and yet he has thus far been held liable for all the costs.

The court below held that the offer of judgment given by the defendant was a nullity and did not protect him against costs subsequent to the offer, because he added at the end thereof the words “to date,” and that thus the plaintiff, if she had accepted the offer, would have been obliged to incur the expense of fifty cents for the entry of judgment upon the offer. This is an erroneous view. The plaintiff could at once have accepted the offer and have entered judgment on the same day, and could then have taxed the expense of entering the judgment. The cost of entering the judgment was a portion of the costs “to date.” The words “ to. date ” were mere surplusage, and they add nothing to the force and effect of the offer. This appears quite plainly by reference to § 738 of the Code, under which the offer was made. The last clause of that section is as follows: “If the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.” If the plaintiff in such a case declines to accept the offer, and does not obtain a more favorable judgment, the time of the offer is the dividing line as to costs. Obviously the words “ time of the offer ” mean the same as the “ date of the offer. ” When a defendant offers judgment, “with costs,” the offer speaks as of the time or date when it is made, and the plaintiff in such a case cannot recover costs from that time or date, but must from that time or date pay the costs. The defendant’s offer was, therefore, an effectual offer, and adequate to protect him against costs, and to entitle him to costs from that time or date.

But we must go further. The plaintiff was not entitled to any costs, because her recovery was less than fifty dollars, and the defendant was entitled to all the costs of the action.

It was provided in the Revised Statutes, 2 R. S., 613, § 3, subds. 1 and 2, that the plaintiff recovering judgment should recover costs as follows: (1) “ In all the actions relating to real estate enumerated in the fifth chapter of this act, and in all proceedings to recover the possession of land forcibly entered or detained. (2) In all actions in which the title to lands or tenements, or a right of way, or a right by prescription or otherwise to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause.” Among the actions enumerated in the fifth chapter referred to are actions “ of trespass on lands for the recovery of treble damages.” Notwithstanding these provisions it was held in Wickham v. Seely, 18 Wend., 649, that a plaintiff in an action of trespass quare clausum fregit, prosecuted in the supreme court, not under the statute giving treble damages, recovering less than fifty dollars damages, was not entitled to costs, but was bound to pay costs to the defendant, although the locus in quo was uninclosed, unoccupied and uncultivated, because the defendant did not put his title in issue. The effect óf that decision was that in all actions of trespass, where treble damages were not claimed, the defendant would recover the costs of the action if he did not put in issue the plaintiff’s title, although the plaintiff alleged title in his complaint, unless the plaintiff recovered at least fifty dollars. The action of trespass on lands to recover treble damages was the only exception to the rule that where a plaintiff could commence and try his action in justice’s court, and yet commenced his action in the supreme court, he was obliged to recover at least fifty dollars to entitle him to costs. The distinction as to costs between ordinary actions of trespass on lands and trespass to recover treble damages no longer exists. All actions for injuries to lands now, as to costs, stand on the same footing, and the scheme and policy of the law are absolute that the plaintiff shall not recover costs in the supreme court in any case where he could have commenced and tried his action in a justice’s court, unless his recovery shall be at least $50.00.

In the Code of 1848, subd. 1, of § 259, was substituted and made to embrace the substance of subds. 1 and 2 of the sections of the Revised Statutes above quoted, and it gave the plaintiff costs “in an action for the recovery of real property, or where a claim of title to real property arises on the pleadings, or is certified. by the court to have come in question at the trial.” The same provision is now found in subd. 1 of § 3228 of the Code, as follows : “ An action triable by a jury to recover real property, or an interest in reál property, or in which a claim of title to real property arises on 'the pleadings or is certified to have come in question upon the trial.” Under the Revised Statutes the requirement was that the plaintiff’s title must have been “ put in issue by the pleadings.” blow the requirement is that a claim of title must arise upon the pleadings. ” We think the meaning in both cases is substantially the same. The provision in the Code is a mere revision of the prior law, and in such a case a mere change of phraseology must not be deemed or construed to change the law unless it evidently appears that such was the intention of the legislature. Taylor v. ‘ Delancy, 2 Caine’s Cases, 143; Goodell v. Jackson, 20 Johns.; 693; Matter of Brown, 21 Wend., 316; Hall v. Western Transp. Co., 34 N. Y, 284.

It has never, prior to the decision now under review, been decided in any case, either under the Revised Statutes or under the Code, so far as we can find, that a plaintiff can recover his costs in the supreme court in an action .of trespass on lands where the allegation of title in his complaint is admitted, or not put in issue by the answer, unless his recovery be at least fifty dollars. On the contrary, the decisions are uniform to the effect that in such a case he cannot recover the costs, but the defendant can. O'Reilly v. Davies, 4 Sandf., 723; Snyder v. Beyer, 3 E. D. Smith, 235; Niles v. Lindsley, 8 How., 131; Burnet v. Kelly, 10 id., 406; Squires v. Seward, 16 id., 478 ; Utter v. Gifford, 25 id., 289 ; Earl of Craven v. Price, 37 id., 15 ; Turner v. Van Riper, 43 id., 33; Lillis v. O'Conner, 8 Hun, 280; Learn v. Currier, 15 id., 184; Green v. Trustees, etc., 30 id., 306 ; Crowell v. Smith, 35 id., 182; Bailey v. Daigler, 50 id., 538 ; 20 N. Y. State Rep., 549 ; Kelly v. N. Y. & M. B. R. R“. Co., 81 N. Y., 233; Dunster v. Kelly, 110 id., 558; 18 N. Y. State Rep., 548.

These cases all involved the construction of the language contained in subdivision 1 of § 3228, and the meaning of the phrase a claiiú of title to real property arises upon the pleadings,” and they determine beyond any question that a claim of title does not arise by the mere assertion of title in the complaint, even in a case where, if the title was disputed, it would be incumbent upon the plaintiff to prove it at the trial. A claim of title in the complant is not a claim of title upon -the pleadings. Where, viewing all the pleadings, there is no issue or dispute about the title,in no legal sense can it be said -that a claim of title arises upon the pleadings. The phrase has reference to a case where both parties in the pleadings claim the title, or where one claims it and the other disputes it. This construction of the phrase preserves the historic continuity of the law and enforces the policy of the law which seeks to compel a plaintiff in cases where his claim is under fifty dollars to sue in a justice’s court in all cases where that court has jurisdiction.

It is not disputed that this action, upon these pleadings, could have been commenced and tried in a justice’s court The law prohibits justices from, trying and determining disputed titles to real estate. Here there was no dispute about the title. That was admitted and the question of damages was really the only one to be tried and determined. The action was to recover damages for an injury to property. Code, § 2862, subd. 2.

The counsel for the plaintiff thinks great inconvenience and injustice may flow from the holding that the plaintiff cannot recover costs in such a case as this, and he calls our attention to § 2956 of the Code, which provides for a case where the action for .an injury to real estate is commenced in a justice’s court, and the defendant does not interpose a plea of title and give the undertaking required in such a case.

The section is as follows: “If, however, it appears upon the trial, from the plaintiff’s own showing, that the title to real property is in question, and the .title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly.” His claim is that in the •cases contemplated by this section the defendant may dispute the title of the plaintiff, and thus oust the justice from jurisdiction, and then, when the plaintiff commences his action in the supreme court, admit his title, and thus impose the costs there upon him. Of course if that could be done in a case like this, there would be :a mischief unprovided for by the law. We do not now determine whether the practice suggested by the plaintiff’s counsel could be successfully pursued by a defendant in such a case as this. We are, however, inclined to the opinion that it could not be, and that, when such a case arises, it will be found that the difficulty suggested does not exist It is sufficient to say now that this is not such a case. Here the plaintiff did not in the first instance •commence her action in a justice’s court. If, however, we should uphold the plaintiff’s contention in this case, injustice would result in another direction. Then the plaintiff could generally, in actions of trespass, by alleging in his complaint title as the basis of his action, maintain that a claim of title arose on the pleadings, and could thus for any trivial trespass, where he knew there was no dispute about his title, recover costs in the supreme court, and this could always be done when the trespass related to unoccupied, vacant lands, not in the actual possession of the ■ plaintiff. The conclusion which we have reached is supported by the plain meaning of the statute, and by the general policy of the law.

The orders of the general and special terms should be reversed, and the motion granted, with costs of the appeals to the general term, and to this court, and ten dollars costs of the motion.

AÍ1 concur.


author: Peckham, J.

text:
    Henry Dale et al., Resp’ts, v. Frank T. Gilbert, Sheriff, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    Replevin—Undertaking—Amendment.
    The supreme court has power to permit an amendment of an undertak-

      ing_ given by the defendant in replevin by striking out an admission in the recital thereof with the consent of the principal and sureties. Wbe'her it should be permitted or not depends upon the question whether the party in whose favor the error may have been made can be placed in the same: position substantially which he occupied previous to its commission. -
    Appeal from order of the supreme court, general term, fifth department, affirming order of special term denying motion to set. aside an undertaking given by defendant to retake certain goods replevied, and for leave to substitute another undertaking, on the-ground of want of power.

      B. Frank Dake, for app’lt; Abraham Gruber and Hadley Jones,, for resp’ts.

       Reversing 35 N. Y. State Rep., 723.

   Peckham, J.

In Martin v. Gilbert, 119 N. Y, 298; 29 N. Y. State Rep., 440, the question depended upon the proper effect to be given a recital contained in an undertaking which remained, unamended and in full vigor as when first delivered. The defendant in that case had given an undertaking by xdrtue of which he took back the property which had been taken by the coroner-under his requisition. .That undertaking contained a recital admitting that the plaintiff had taken from defendant’s possession the property described in the plaintiff’s requisition. Upon the-trial the defendant offered to prove that, in fact, lie did not have in his possession or under his control when the demand was-, made upon him more than one-quarter of the property mentioned in the affidavit of the plaintiff accompanying the requisition. It was rejected by the court, and we thought properly. We held that the recital in the undertaking was conclusive upon the defendant as to the fact of the amount of the property actually taken, and that the only issue left was as to the fraud. We thought the plaintiff had a right to rely on the recital and that the defendant ought to be estopped from denying the fact admitted in the undertaking. We there gave some reasons for the conclusion that the plaintiff had this right, and we stated that he-might have been misled by the recital and so have failed to take-any further measures to obtain possession of property which the defendant in the undertaking thus solemnly admitted that he was in possession of and which he kept possession of by reason of such undertaking. The question was not presented as to the right of the court upon the application of the defendant to amend the undertaking by striking out the admission with the consent, of the principal and sureties thereto.

We think the court has the power to permit such amendment,, the same as it has the power to permit the correction of many-other alleged errors which a party states that he has inadvertently made. Whether it should be allowed or, not depends upon the. question whether the party in whose favor the error may liavebeen made can be placed in the same position substantially which, he occupied previous to its commission.

All that was said in the Martin and Gilbert case must be construed in connection with the fact that the bond in that case still remained on the record or files of the court, unamended and with, no motion for leave to amend the same. Upon the principles laid down in that case it is apparent that an application to amend - the undertaking so as to strike out the admission contained in the recital would come too late when the parties had entered upon the trial, assuming that a motion to so amend the undertaking could be made at the trial. The admission in the above cited •case in fact remained in the undertaking, which was itself part of the record of the case and was on the files of the court, and so we held that under the circumstances no evidence could be admitted which should contradict the admission. We assumed as matter of law that the party receiving the undertaking relied on the admission contained in the recital, and that no evidence to the contrary was admissible.

We are still of the same opinion. The admission was, so to speak, a part of the record so long as the undertaking remained unamended, and a party has a legal right to rely upon such an admission, and there is no principle upon which, so long as it remains of record, it should not be conclusive. In this respect it is like an admission in a pleading. While the admission remains, evidence is not admissible to show that the party does not rely upon it. It is an admission of record, and is conclusive. If the pleading be amended by striking out the admission, the truthfulness of the admission is still a question, when proven to have been made, but it is not conclusive upon the party who made it, and he may give evidence to show that it was made inadvertently and mistakenly, and then the jury must decide whether on the explanation it be correct. Strong v. Dwight, 11 Abb. Pr., N. S., 319 ; Paige v. Willet, 38 N. Y., 28.

When the application to substitute an undertaking, or in other words, to amend it, shall be presented to the supreme court, it will be for that court to say whether in view of all the facts it should be granted.

We said in the Martin and Gilbert case, supra, that we did not think the defendant should be allowed to contradict admissions of fact made in his own bond, by virtue of which he kept the property which had been taken by the coroner, and we thought he was properly concluded by recitals in the bond upon the question of what property was in truth in his possession and taken by the coroner. It must be remembered, however, that it was by virtue of the undertaking, and not of the recital, that the property was taken back by the defendant. He would have been entitled to take back all the property which the coroner actually took from him, without putting a word of the recital in the undertaking. And as has already been intimated, the language used in the Martin case was used in reference to a bond then on the record and unamended, and in such case we held the admission was conclusive.

The question will still present itself to the court when the application to amend shall be made, whether in consideration of all the facts, justice would not be promoted by holding the defendant to his admission, and as bearing upon that question, the inquiry would be very material, whether the party accepting the undertaking had relied upon the admission contained in it. If it should appear that he had so relied upon it during all the time when but for such admission he would have made an examination and discovered the truth, and if it should further appear that by permitting the amendment the plaintiff would not be placed in the same position and with the same advantages he would have occupied and possessed had such admission not been made, a ease would be made upon such application for the consideration of the supreme court, which we doubt not would be decided by that, tribunal in a manner consistent with justice and the rights of the different parties litigant.

If. the amendment were permitted it would still remain a fact that an admission had once been made by the defendant, and the question whether the admission were not in fact correct would not-alone remain, but if it should appear that the admission had been made under such circumstances as to constitute an equitable estoppel in the plaintiff’s favor, the admission would then still remain conclusive as to him.

Upon the whole we think the supreme court had power to deal with the question, and the order denying the motion should be reversed, and the case remitted to the special term to be heard and decided upon its merits. As the main application of the defendant is addressed to the favor of the court below, and it is not at-all certain whether it will be granted, or if granted, upon what, terms, we think that no costs of this appeal should be granted to-either party.

All concur, except Earl, J., not voting, and Finch, J., absent..


author: Lansing, S.

text:
    In the Matter of Proving the Last Will, etc., of Roxalana Williams, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed June 83, 1891.)

    1. Will—Execution.
    Where a will is subscribed by the testatrix in the presence of the witnesses and is declared by her to be her will, and the witnesses subsequently sign in her presence and at her request, there is a sufficient execution, although the declaration and request were made before the subscription took place.
    2. Same—Genuineness of signature.
    The signature of a testator will not held to be a forgery because-spelled out of decedent’s usual habit, where it appears that at an earlier period of her life she spelled her name in two different ways; that the signature is spelled the same as her name in the body of the will, and there was evidence as to its genuineness and the subscribing witnesses testified that they saw her sign.
    3. Same—Undue" influence.
    Undue influence will not be presumed from the facts that the will is. that of an aged, feeble and deaf person; that it disinherited her heirs and gave the property to a stranger in blood; that the memorandum was prepared by the principal beneficiary with whom deceased maintained friendly and affectionate relations, and that testatrix and the beneficiary thereafter stated that no will had been made, where the testatrix was of sound mind and memory, had possession of the will for a half hour before execution and declared that it was all right and just as she wanted it, and upon other property coming to her she conveyed it to the principal beneficiary.

      Proceedings for probate of the last will and testament of Eoxalana Williams, deceased.

      Warren, Patterson & Gambell, for Norman Carpenter, ex’r and Eroponent; Smith & Parmenter and John Hall, for Julius and ¡mory Hall, heirs at law and next of kin, contestants.
   Lansing, S.

The will of the above-named deceased was admitted to probate by my predecessor, Mr. Lord, some time in 1889, after a somewhat careful examination and cross-examination of the subscribing witnesses by the attorneys for the respective parties. Subsequently and about February, 1890, by consent of the parties, the probate of the will was revoked upon the stipulation that the testimony already taken should stand; and thereupon the contestants proceeded to offer testimony upon their part. The will before the present surrogate is contested upon four grounds:

First. That the will was not executed with due statutory formalities.

Second. That the signature to the will was a forgery.

Third. That the execution of the will was procured by undue influence or fraud.

Fourth. That at the time of the execution of the will the decedent was not of sound mind and memory.

The material facts in this case are as follows : Eoxalana Williams, who was the widow of John B. Williams, died in the month of October, 1888, at the age of about eighty-two years. She was somewhat feeble in health for a year or two prior to her decease, but was not confined to her bed or room until a short time prior to her death. For a number of years prior, and down to the time of her death, she had been quite deaf, and unable to hear any words spoken to her, but conversation was carried on with her by use of a slate or tablet of paper, aided by signs or gestures; questions were usually written upon paper or slate, and verbal answers given by her. She was an intelligent woman, of an apparently active mind, and a large number of witnesses testify that she conversed readily and intelligently in the method above described. Ever since the death of her husband, which occurred forty years or more prior to her death, she had resided with her brother, Jacob F. Hall, a bachelor, upon his farm of about 140 acres, situate in the town of Pitts town, which was of the value of about $5,000. Her brother was also possessed of personal property of the value of about $20,000. Mrs. Williams had a small property of her own, not to exceed $4,000 or $5,000, but no real estate.

Jacob F. Hall died on the 28th of February, 1887, having been in feeble health for some months prior to his death. The disease was softening of the brain. He died intestate, leaving his sister, Mrs. Williams, his sole heir at law and next of kin.

On the 17th of February, 1887, the will in question here is alleged to have been made. It appears from the testimony offered by the proponent that about two weeks prior to the execution of the will Merritt Snyder, who resided about two miles from the residence of Jacob F. Hall (where Mrs. Williams then lived), was requested by Mr. Carpenter, the husband of the principal beneficiary in this will, who lives upon the farm adjoining Mr. Snyder, to call upon Mrs. Williams, as she wanted him (Snyder) to do some writing for her. Mr. Snyder states that he went over and saw' her, that they went into the room off from the kitchen and that Mrs. Williams said “ She wanted him to do some writing for her, to draw her will.” He wrote on the slate that he would do it, if she would dictate to him just what she wanted She wrote, in reply': “ I don’t know who I will get for witnesses.’ He wrote that “ He could be one, and his wife could be another.” She said: “ I didn’t think you could witness it if you wrote the will. ” He nodded that he could. This is all that took place between them at that time. Two or three days afterward Mrs. Carpenter brought over and gave to him a memorandum for Mrs. Williams’ will. The instructions were drawn in Mrs. Carpenter’s handwriting. Within a day or two Mr. Snyder made a draft of the will from the memorandum, interlined it somewhat to make it correspond with the instructions, and then made a copy of the draft, which he subsequently compared with his wife, she holding the draft and he holding the completed copy. The next morning Mr. Snyder and his wife went over to the house of Jacob F. Hall; got there about 9 o’clock. They found there (in the kitchen) Mrs. Williams, Mr. Hall, Mrs. Carpenter, Mr. Downey and Hannah Eldredge. Shortly after his arrival Mr. Snyder handed Mrs. Williams the will. She left the room and went to her own room, and after the lapse of about thirty minutes she came into the sitting-room, a room adjoining the kitchen, where she found Mr." Snyder and his wife sitting by a fire, which in the meantime had been built by Mrs. Carpenter. When Mrs. Williams came inx Mrs. Carpenter left and closed the door. On coming into the room, in the presence and hearing of Mr. Snyder and his wife, Mrs. Williams stated that it, referring to the will, was “ all right; just as she wanted it.” Then Mr. Snyder wrote upon the slate, “Do you acknowledge this to be your last will and testament and do you want us to sign it, my wife and I ?” And she said: “Yes, but I must first sign it myself.” Mrs. Williams then sat down. Snyder gave her a pen, and she wrote her name as it appears in the will, “ Eoxy Lany Williams.” Thereupon Mr. Snyder and his wife wrote their names below as witnesses. The testatrix then said that “ that was her will, and she was glad it was done.” Snyder then folded up the paper, handed it to her, and she handed it back to him, saying she wished he would keep it for her. This will remained in the possession of Mr. Snyder until after the death of Mrs. Williams.

Fot long after the death“of Jacob F. Hall, which occurred on the 28th of February, 1887, Mrs. Williams removed to the house of Forman Carpenter, with whom she resided until her death. Harriet Carpenter, the wife of Forman Carpenter and principal beneficiary in the will, was the adopted daughter of Mrs. Smith Harrington, who was a sister of Mrs. Williams. Mrs. Harrington died some twenty-five years ago or more. It appears that there had existed, for years prior to the death of Mrs. Williams, a great degrec of intimacy between Mrs. Williams and Mrs. Carpenter. Mrs. Carpenter was accustomed to visit Mrs. Williams quite frequently at her home, and to nurse and attend her in sickness, and Mrs. Williams gave frequent expression to others of her affectionate regard for Mrs. Carpenter; There, was a large number of witnesses who testified upon this subject; while some of them were partial and interested, there were several others whose position and relation to the parties place them above suspicion of bias or prejudice. To one witness Mrs. Williams stated that “she thought a great deal of her (Mrs. Carpenter) and would do well by her, and that Mrs. Harrington, when she was going to die, said she had tried to be a mother to Hattie and that she wanted her (Mrs. Williams) to take her place, and she had tried to do so.” To another she said: “ She thought more of Hattie than any one else living.” To another: “ She thought a great deal of her, and if she was her own daughter she didn’t think she could think any more of her.” To still another: “ She was my sister’s daughter ; she does everything for me; I don’t know what I would do without her.” Ten years prior to her death she said, when sick, to her physician: “ Hattie is my mainstay; she is always ready to come.” There is no contradictory evidence upon this subject.

These statements, and many others testified to by the witnesses, show that the relations between these persons, Mrs". Williams and Mrs. Carpenter, were very close and affectionate; they undoubtedly continued so down to the time of her death.

The nearest blood relatives of Jacob F. Hall and Mrs. Williams were three cousins residing in the state of Connecticut, who are the contestants herein. There had been some visiting and some correspondence between them ; but for the thirty years prior to the death of Jacob F. Hall and Mrs. Williams the visits between them were very few and the letters were quite infrequent, not to exceed one or two for a period of ten years prior to the death of Mrs. Williams. After the death of Jacob F. Hall, and while Mrs. Williams was residing at Mr. Carpenter’s (on the 28th day of August. 1888), Mrs. Williams executed a deed of the farm which she had inherited from her brother to Harriet Carpenter, for a consideration of one dollar and affection.

This deed was drawn by Jonathan Hoag, a justice of the peace, residing some three or four miles from the residence of Mr. Carpenter, who was a stranger to her. He drew it at'the suggestion of Mr. Snyder, who was himself informed by Mr. Carpenter that Mrs. Williams wanted a .deed of the farm drawn. He prepared the deed, assisted by Mr. Snyder, and visited Mrs. Williams at Mr. Carpenter's. Upon examining it she called his attention to an error. He had written the name of the grantee as Harriet Harrington, instead of Harriet Carpenter. Thereupon he erased the name of Harrington and inserted Carpenter, and the deed was executed by her and acknowledged before him.

The will of the deceased gives a legacy of $1,000 to Mrs. Carpenter and $100 each to two other persons and fifty dollars each to two others, and the rest and residue to Harriet Carpenter. The principal part of the estate conveyed by the will is that derived "by Mrs. Williams as heir at law and next of kin of her brother, Jacob F. Hall.

Considerable testimony was taken upon the trial in regard to the genuineness of the signature to the will; a large amount of expert testimony was produced upon each side, the contestants claiming that the signature to the will was not that of the deceased. The signature to the will (the Christian name) is written in two parts “ Eoxy Lany.” It was usually written by Mrs. Williams in one word, “Eoxalana,” each syllable terminating in “ a” instead of “y.” It appeared, however, that she had upon one or more occasions signed her name “Eoxa L. Williams,” and her silver spoons and pillow cases were marked “ E. L.W.” and E. L. H.” In her will she gives certain spoons marked “E. L. H.” to one of the legatees.

The first question presented for decision in this case is: Was the alleged will executed in compliance with the statute ? The statute contains four requirements, the lack of either of which renders the execution of a will invalid: First, the instrument must be signed at the end by the testator. Second; it must be subscribed or the subscription acknowledged by testator in the "presence of at least two witnesses. Third, it must be declared to be his last will and testament by the testator at the time of the subscription, or acknowledgment of subscription, in the presence of each witness. Fourth, it must be signed by each of two witnesses at the end, in the presence of the testator, and at his request 2 E. S., 63, §40.

The following general rules have been adopted by the courts in the construction of this statute:

First. The order in which the formal acts of execution and publication should be done is not material, except that the testator must sign before the witnesses. Jackson v. Jackson, 39 N. Y., 153; Rugg v. Rugg, 21 Hun, 383.

Second. The law does not require a technical and literal compliance with the statute; a substantial compliance with its requirements is sufficient. 2 Redf. L. & P., 4th ed., p. 142, and cases cited.

I think the evidence shows that there was at least a substantial compliance with the statute in the execution of this will. First, the will wits subscribed by testatrix at the end in the presence of the witnesses. Second, it was at the time of making the subscription (but before it was signed) declared by her to be her last will and testament. Third, the witnesses signed after the will had been subscribed by her, in her presence and at her request, although the request to the persons to sign as witnesses was made before the subscription of the1 will.

It has been held that the request to sign as a witness need not be actual, but may be implied from circumstances; as “ where "persons are called to witness a paper, which they do, in the presence of the testator, he at the same time subscribing it and declaring it to be his last will and testament” Butler v. Benson, 1 Barb., 526 ; Hutchings v. Cochrane, 2 Bradf., 295.

It has been further held that the declaration may be made immediately before as well as after the subscription if on the same occasion and forming part of the same transaction. Jackson v. Jackson, supra.

As this construction of the statute covers all of the alleged defects, it must therefore be held that the formalities necessary for the due execution of the instrument were complied with.

The next question and one which was greatly contested upon the trial is as to the genuineness of the decedent’s signature to the instrument propounded as her will.

The contestants in support of their contention produced a number of signatures of the alleged testatrix made about the time of the alleged execution of the will, notably signatures attached to the papers which Mrs. Williams executed upon taking out letters of administration upon her brother’s estate, signatures to the petition and bond, and also to the deed executed within a few months after the will. In each of these instances the Christian name “ Roxalana ” is signed in one word, whereas in the will it is signed “ Roxy Lany ” in two words and is also differently spelled; in the one case with two “y’s” and in the other with none.

And it is insisted that this mode _ of writing the name to the will affords evidence in itself that it was not written by the testatrix, because not in the usual spelling and form of her signature.

It is further contended that, aside from the peculiarity in spelling, the signature when critically examined appears to be a simulated signature, and two expert witnesses, Professor D. T. Ames and Dr. Hagan, were called and testified to that effect; and photographs of the recent signatures of the deceased and that to the will were produced in contrast for examination. And further, in support of their contention that the signature was never penned by the deceased, testimony was offered tending to show that on several occasions after the date of the execution of the alleged will, both Mrs. Williams and Mrs. Carpenter denied that the will had been executed, or stated in effect that the deceased had made no will.

Upon the part of the proponent several papers and documents were produced dated many years before her death, in which Mrs. Williams’ name was written “Roxa L. Williams,” one of which, dated March 28, 1859, and purporting to be a conveyance of real estate by her to her brother, is signed “Roxa L. Williams.” Another - instrument purporting to be a deed, said to have been executed by Mrs. Williams and her husband, dated February, 1847, the body of which appears to be in the handwriting of her husband, has her name written as one of the parties thereto (the Christian name) “RoxaLana,” in two words, although the name is signed by her in one word “Roxalana.” In another instrument dated March, 1859, her name appears as grantee, in a deed from her brother, Jacob P. Hall, and is written Roxa L. Williams. It also appeared that old silver spoons and towels and pillow cases, kept at the residence of deceased and used by her, were marked with the letters “R. L. W,” and “R. L. H.”

It is very apparent that Mrs. Williams at an early period of her life, at times, at least, wrote and recognized her Christian name as spelled in two separate words. It further appears from an examination,of the will itself that the name Eoxy Lany Williams wherever it appears, which is at the commencement of the will and also in the attestation clause, is written in two words and spelled precisely as it is spelled in thé alleged subscription to the will. Mr. Snyder testifies that he so inserted it in the will because he found it written so upon the memoran dam which was delivered to him for drafting the will. I am satisfied that so far as the first branch of the contention of the contestants is concerned, namely, that the signature must be deemed a forgery because spelled out of decedent’s usual habit, cannot be sustained.

It is quite conceivable that this old lady, who was executing a -document (if she did execute it) of the solemnity of a will, after having read it over as it is alleged during the thirty minutes during which she had it in her possession, deemed it important that her name should be subscribed to the will as it was written. Indeed, it is quite natural and the. usual mode for people in subscribing formal instruments to write their signatures in what they believe or understand to be its correct and original form, although not the form usually employed by them. And finally it is quite unreasonable to believe that a person desirous of simulating the signature of the decedent would have written it in a form and mode of spelling so unlike the one commonly used by her. The proponent also produced a large number of expert witnesses, including Dr. Ward, a professional expert. But the greater number of the witnesses called by the proponent were cashiers and tellers of different banks in this city, who were accustomed to examine hundreds of signatures each day and upon whose knowledge and skill in that department the safety and credit of their several banks largely depend. These witnesses all testify that the signature to the will, notwithstanding its spelling and seperation into two words (not found in the later signatures of Mrs. Williams), was unquestionably in her genuine handwriting.

Upon the whole I incline to the opinion, from a careful examination of the signature in connection with the testimony and exhibits, that the signature to the will is genuine and was written by Mrs. Williams.

But beyond this and entirely independent of this class of testimony (expert) is the testimony of the two subscribing witnesses to the will, both persons of intelligence and whose reputation has been unassailed upon this hearing and presumptively is unassailable, who both testify they saw Mrs. Williams affix her signature to the will, so that, upon the "whole evidence, there cannot remain the slightest doubt upon the question of the genuineness of the signature to the will.

The remaining question and the more serious one is presented by the contestants’ contention that this will was the result of undue influence or fraud and not the free, spontaneous act of the testatrix. It is urged that Mrs. Williams was a person of great age, eighty-two. years old, somewhat feeble in health, shut off from ready commanication with the world by reason of her lost hearing, residing with her aged brother, who was himself an invalid and by reason of his malady (softening of the brain), incapable of advising with her; that the memorandum for the will was prepared by Mrs. Carpenter, the principal beneficiary, without the presence or knowledge of any other person, so far as appears; that there existed between the deceased and the principal beneficiary (as she admits and claims) the most tender relations, amounting almost to those between mother and daughter, which had existed for years and grown closer as time progressed; that said beneficiary was not a relative either by blood or affinity; that the blood relatives (heirs at law and next of kin of said deceased), were not even mentioned in her will, and although the deceased had frequently said she expected a portion of the property would go to them; and finally that Mrs. Williams denied, as is alleged, after the making of said instrument, on one or more occasions, that she had made a will; that Mrs. Carpenter had, also, on several occasions, made the same denial. These circumstances, it is claimed by the contestants, establish that the alleged will, if executed, was the result of moral coercion amounting to fraud. Upon the other hand, the proponent relies upon the general intelligence and capacity of the deceased; the absence of proof of impairment of memory, or of the exhibition of mental weakness or loss of will power; her full knowledge of her property, and of those upon whom she desired to bestow her bounty; the deliberation and care with which the act was done; the affection which prompted the act, and the absence of all proof of fraud and imposition, to repel any and all presumption of undue influence.

Cases of this class have been before the courts so frequently that certain general rules have been established by which evidence of the character adduced by contestants in this case should be weighed and applied; the courts have also decided what kind and amount of countervailing evidence will avail to repel the presumption of fraud or undue influence raised by such evidence. The general rule as to the capacity and ability of a person to dispose of his property is as follows: Any person of sound mind, acting with full knowledge of his affairs, competent to understand his relations to those whom he chooses to benefit, may bestow his bounty as he likes, although the disposition may appear and in fact be unjust and inequitable. Clapp v. Fullerton, 34 N. Y., 190; Seguine v. Seguine, 4 Abb. Ct. App. Dec., 191; Colt v. Patchen, 77 N. Y., 533; Hollis v. Drew Theo. Sem., 95 id., 166.

The fact that a will disinherits testator’s kindred is not alone evidence of undue influence; nor is the fact that the memorandum for the will is prepared by the person who is largely benefited under the will, and who is active in procuring its execution. Matter of Smith, 95 N. Y, 516; Matter of Martin, 98 id., 193; La Bau v. Vanderbilt, 3 Red., 384; Cudney v. Cudney, 68 N. Y., 148. Neither is the fact that a will is not in accordance with testator’s previously expressed intention, although it may have an important bearing in connection with other facts, but without such facts of a pertinent and forcible character a change in purpose of malting a testamentary disposition does not invalidate the will. Matter of Phillips, 90 N. Y., 294. “There can he no fatally undue influence unless there is a person incapable of protecting himself as well as a wrong-doer to be resisted.” In other words. “ It matters not how ingenious the fraud, or how coercive the influence, if there be intelligence enough to detect and strength enough to resist them.” Schouler on Wills, 225; Shailer v. Bumstead, 99 Mass., 121. The proof of undue influence must be by direct affirmative evidence, or by such an array of circumstances as makes the inference of its exercise irresistible. In other words, the contestants must show facts utterly inconsistent with the hypothesis of the execution of the will by any other means than undue influence. Gardiner v. Gardiner, 34 N. Y., 155; Loder v. Whelpley, 111 id., 239; 19 N. Y. State Rep., 631; Matter of Claussman, 9 N. Y. State Rep., 182; Marx v. McGlynn, 88 N. Y., 357.

No presumption of testamentary incapacity arises from old age alone, Horn v. Pullman, 72 N. Y., 269 ; nor from deafness, Gombault v. The Pub. Admr, 4 Bradf., 226 ; and even feeble and weak-minded people may make valid wills. In re Gray's Will, 5 N. Y. Supp., 464; 24 N. Y. State Rep., 345; In re Gross, 14 N.Y. State Rep., 429. In fine, the rule to be deduced from the authorities maj'- be stated as follows: 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 interest and opportunity; and if, on the other hand, there is adduced proof of capacity, mature deliberation, settled purpose and absence of fraud and imposition, the will must be deemed the exercise of personal right and be respected accordingly. Let us apply these rules here.

The case for the contestants may be summarized as follows:

First. The will was that of an aged, feeble and deaf person.

tSecond. It disinherited her heirs (although she had expressed an intention or desire that they should have some of her property), and gave the property to a stranger in blood.

Third. The memorandum was prepared by the principal beneficiary, between whom and the deceased there had long existed the most friendly and even affectionate.relations.

Fourth. The alleged testatrix and beneficiary had each, as is alleged, stated upon occasions after the making of the will that no will had been made.

I will consider these in the inverse order of their statement. As to the alleged admissions of the testatrix and the principal beneficiary under the will, it may be stated that it is a well settled rule that admissions of the alleged testatrix not made at or about the time of execution of will are not admissible and cannot be received as a statement of facts upon the question of undue influence and fraud, Matter of Baird, 47 Hun, 77; 14 N. Y. State Rep., 172, although such admissions may be competent on the question of mental capacity in connection with the charge of undue influence. Marx v. McGlynn, 4 Redf., 455; S. C., 88 N.Y., 357; Waterman v. Whitney, 11 id., 166; Abb. Tr. Ev., 115.

It may be further stated that the alleged admission of Mrs. Carpenter, that no will had been made to her knowledge, is not, I am satisfied (she not being the sole beneficiary under the will), competent evidence upon any issue. So far, therefore, as these latter alleged admissions are concerned they may be regarded under the authorities as immaterial in the decision of this case.

The charge that the memorandum was drawn and the making of the will was procured by the principal beneficiary, with whom the 'relations of the deceased were most intimate, presents the most serious question in the case, and the courts say under such'circumstances it devolves upon the beneficiary to show that it was the free act of the mind of the testatrix. The proponent insists that this is conclusively shown in this case by the manner in which the will was prepared and executed. The alleged testatrix had indisputably the instrument in her possession, which was plainly written, for a half hour, and after such opportunity to inform herself of its contents she came in the presence of two persons who were in nowise related to her or Mrs. Carpenter and stated that the will was “All right and just as she wanted it,” and thereupon executed it and declared it to be her last will and testament.

It must be conceded that if deceased was of substantially unimpaired mind and memory, with such ample opportunity for knowledge and deliberation upon the contents of the alleged will (even if she had no prior knowledge) as was afforded in this case, the charge of implied fraud and imposition would not be sustained. As a further proof of decedent’s intent to convey the bulk of her property to Mrs. Carpenter, the proponent points to the fact that although the will gave the residue of the property to Mrs. Carpenter, yet after the death of her brother, J. E. Hall (by which she became entitled to a large amount of personal property, in addition to a farm of 140 acres), that her attention was called to the question that the will, perhaps, did not carry the farm; that she then, in the presence of a stranger, after careful examination of the instrument, and pointing out an error in the name of the grantee, signed the deed of the farm, thus deliberately turned over the entire balance of her estate to the principal beneficiary in the will, thereby showing, as is alleged, that she must have understood and intended that Mrs. Carpenter should have her entire estate with the exception of the small legacies given in the will. Upon the whole, it seems to me upon this point that the requirement of the law has been met, and that there has been shown knowledge, capacity, deliberation and settled purpose in' the disposal of the property, with an entire absence of any proof of fraud or imposition producing the result. “ The fact that the beneficiary communicated to the draughtsman a provision in her favor to be inserted in the will, will not be sufficient to shift the burden, where the testatrix was intelligent and bad personal knowledge of the contents of the will.” Matter of Martin, 98 N. Y., 193.

Upon the question of the disinheritance of heirs, the same considerations above stated have equal application, to which must be added the additional consideration that the next of kin were cousins only, and lived in another state, and that there had been no intercourse between the families for years, except a visit and letters at very considerable intervals. While, on the other hand, Mrs. Carpenter was regarded by testatrix as a daughter, and the most ardent expressions of confidence and love were indulged in by Mrs. Williams respecting Mrs. Carpenter, which were fully reciprocated on the part of Mrs. Carpenter, not so much by expressions as by care, attention and kindness toward the deceased, which continued down to the last moment of her life.

It has been repeatedly held that an intelligent and deliberate-, testamentary disposition of property to strangers in blood, when prompted solely by gratitude, love and affection will not be set aside in favor of any presumed or even previously expressed intent of a testator not to disinherit his heirs.

The same general considerations will apply upon the question of decedent's age and infirmities; to which should be added the-additional facts that the will was executed more than a year and a half before her death, that she was the administratrix of her brother’s estate and consequently knew the value and extent of his property (which constituted the bulk of her estate), and, finally, was not without independent advisers as to the disposition of her property. If, therefore, she was of sound mind and memory, of which there is abundant evidence and substantially no countervailing proof, was able to know and retain in her mind the value and extent of her property and those who were or might be the proper objects of her bounty and to choose intelligently between them, and, uninfluenced by fraud, did so choose, then whatever her age or infirmities, or however completely she excluded'her blood relatives from participation in her bounty, or however intimate her relations may have been with the principal beneficiary, or however great may have been the influence of the beneficiary, as the result of kind offices and considerate treatment of deceased,, the will must stand.

In conclusion, the evidence discloses a complete knowledge on the part of the testatrix of the contents of the will, ample deliberation, settled purpose and a full legal capacity, and I fail to find from the evidence that the principal beneficiary, or any one in her interest, so controlled the action of the testatrix either by importunity which she could not resist or by deception, fraud or other improper means, that she thereby procured the execution of this, instrument. The burden of establishing this was upon the contestants ; and they having failed in this, the will must be admitted to probate. Let a decree be so prepared.


author: Coleman, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of the Executors of William Tobin, Deceased.

      (Surrogate’s Court, Orange County,

      Filed December 4, 1890.)

    Executobs and administb atoes—Accounting—Joint bank account.
    Testator by his will gave his wife $1,000 and the balance of his estate to-his brother. He and his wife had an account in bank in their joint names in which each deposited, having independent sources of revenue, and the larger portion of the drafts upon it was made by the wife. Shortly after his death she drew out the balance. Held, that there being no proof as to how much belonged to each, the presumption was that each owned half; that the wife held as trustee any part of such balance as belonged to the estate; that the court had no power to direct her to pay the same over, but would direct that the same be charged against her statutory allowance, the legacy having been paid, and that the executors pay the same to the brother.
    Testator William Tobin died May 26, 1889. At the time of liis death there was in the Newburgh Savings Bank an open account in the names of “ William and Catherine Tobin ” amounting to $402.41. Catherine Tobin was the wife of William Tobin. Both had independent sources of revenue sufficient to account for ■the half or the whole of the account. William was a soldier in the employ of the government and was stationed at West Point. •Catherine at the time of her marriage was keeping, and after that continued to keep, a saloon at Highland Palls. The bank officer testified that previous to William’s death all the drafts upon the account, twelve in number, had been made by Catherine, except two. The amount drawn out by William was $500, and 'the ■amount drawn by Catherine was $2,333.32. The account began in 1873. Three days after William's death Catherine drew out the balance of the account, $402.41. By his will the testator gave to his wife $1,000 “ out of my personal property of money in bank or otherwise,’’ and gave his brother, James Tobin, “ all •of the balance of my money in bank or otherwise.”
    The legacy to the wife is not mentioned to be in lieu of any right given her by law as widow. The will is dated December 1, 1888.

      W. C. Anthony, for ex’rs; A. H. F. Seeger, for Catherine Tobin; J. G. Graham, Jr., for James Tobin.
   Coleman, S.

Objection is made upon this accounting by •James Tobin, that the executors have failed to account for any part of the bank account, and urge that their account should be surcharged with the amount of the testator’s interest in the account, or that such amount be deducted on this accounting from the amount of the legacy to Catherine Tobin, for which they ask to be credited, or from any other moneys she may be entitled to from this estate.

The will disposes of the testator’s whole personal estate; she, therefore, takes no distributive interest as widow, R. S., 2565, § 75, 8th ed., notwithstanding the fact that the legacy to her is not mentioned to be in lieu of her legal rights. She is, however, entitled to receive the $150 given her by statute, Sheldon v. Bliss, 8 N. Y., 31; Vedder v. Saxton, 46 Barb., 188, which appears not to have been paid to her.

As to the bank account there is no testimony showing how much of the account belonged to each, and the presumption is that at least one-half of it belonged to the husband. Gelster v. Syracuse Savings Bank, Gren. Term, 4th Dep., 17 Wk. Dig., 137.

Catharine had the legal right to draw the money from the bank and she holds, as trustee, any part of it which belongs to the estate of the deceased. Mulcahey v. Emigrant Industrial Savings-Bank, 89 N. Y„ 435; Gaffney v. Pub. Adm’r, 4 Dem., 223.

This proceeding is for a judical settlement, and in it the rights of the legatees under the will must be determined by this court, which has jurisdiction to settle and adjust the conflicting rights and interests in and to the fund held, or which ought .to be held, by the executors for distribution. Riggs v. Cragg, 89 N. Y, 479, 491.

In the case of Rogers v. Murdock, 45 Hun, 33; 9 N. Y. State Rep., 660, it was held that the surrogate on a judicial settlement, could charge an executor with the amount due upon certain notes made by a legatee to the testator and deduct this amount from the amount of the legacy, although the executor could not have maintained an action upon the notes, more than six years having elapsed between the. making of the notes and the death of the-testator.

James Tobin and Catharine Tobin are both parties to this proceeding, and I am of opinion that this court should, so far as it has power to do so, settle their respective rights in the estate, including the bank account. The only money still unpaid Catharine-Tobin is the $150 mentioned. At least this amount should be charged against the executors as part of the half of the bank account held by Catharine Tobin in trust for this estate, and thearnount thus charged against the executors, be by them paid to James Tobin, as residuary legatee, and Catherine’s claim thereto, thereby extinguished. As to any further interest the said deceased had in said bank account, this court has no power to make-a decree directing Catharine Tobin to pay over. Although the executors have not collected from Catharine Tobin the interest of the deceased in the bank account, and have paid to her the legacy of $1,000, without retaining such interest therefrom, still I do not. think the evidence in the case sufficient to charge them personally therefor. But the decree should provide that the executors shall, execute an assignment to James Tobin of all such interest to beheld by him to his own use.


text:
    In the Matter of the Estate of James Taggart, Deceased.

      (Surrogate's Court, Orange County,

      Filed September 11, 1891.)

    1. Executors and administrators—Administration.
    Administration cannot be granted where 'the deceased left a document", purporting to be a will until the question of the validity of the will has-been disposed of, notwithstanding the declared purpose of the next of kin not to offer it for probate.
    3. Same—Proof of will to avoid administration.
    No obligation reáts on the next of kin to bring the will to probate in order to avoid administration being taken, but a creditor of deceased who seeks letters of administration may, if he so desires, bring proceedings for probate to determine the validity of such will.
    Application for letters of administration by a creditor of deceased, who died November 29, 1890. From statement of counsel it appears that on the 31st day of August, 1883, the deceased executed a will, but subsequently transferred all his property, so that, apparently, no property remains to pass by the will. The petitioner, desiring to attach the transfer, asks for the appointment of a representative of the estate, so that he may bring suit for that purpose.

      E. A. Brewster, for James Wrigley, creditor; W. D. Dickey, for next of kin.
   Coleman, S.

Petitioner in this case applies for letters by administration as a creditor of the deceased, to which application the next of kin object, alleging that the deceased did not die intestate, and produce and file with their answer a document purporting to be the last will and testament of the deceased, and ask that these proceedings be dismissed.

The petitioner, however, urges that the proceedings should not be dismissed until it is made to appear that a will has been admitted to probate, and that only an adjournment can be properly applied for by the next of kin, to give them time in which to prove the will, and that failing to so apply, and having stated in open court that they do not intend to offer the will for probate, letters should now be granted as prayed for.

After reflection, I conclude that it having been shown to this court that the deceased left a document purporting to be a will, administration cannot be granted until the question of the validity of the will has been disposed of, notwithstanding the declared purpose not to offer it for probate.

That no obligation rests upon the next of kin to bring the will to probate in order to avoid administration being taken upon the estate.

That the will cannot properly be probated in these proceedings.

And that the petitioner may, if he so desires, bring proceedings for the probate of the will, § 2614, Code of Civ. Pro., and an adjournment, if it is desired, will be made of these proceedings for that purpose; otherwise these proceedings will be dismissed, with twenty-five dollars costs and disbursements, to be taxed, to be paid to the petitioner from the estate by any executor or administrator hereafter appointed.