In re Estate of Finn — 1 Misc. 280

Majority

p. 280

Matter of Estate of James Finn, Deceased.

(Surrogate’s Court—Westchester county,

November, 1892.)

Headnote

Where it is shown that testator had testamentary capacity, and was not subject to influence, undue or otherwise, in malting his will, it must be permitted to stand as a final disposition of his estate, however much the court might feel disposed to criticise the provisions contained therein.

A mistake made in the person named as executor •will not avoid a will. If valid as to the disposing portions, probate should be allowed and an administrator with the will annexed appointed.

p. 281

Where a construction of a will is not asked, for on probate, the questions which may arise in regard to the validity of bequests to religious and charitable institutions named therein, must remain undisposed of until the accounting.

The alleged will of the deceased, executed while he was a patient in a hospital at Yonkers, is claimed to he void mainly for lack of testamentary capacity. The facts are stated in the opinion.

F. X. Donoghue, for Nathan A. Warren, executor and proponent.

Joseph F. Daly, for St. Matthew’s Church, legatee.

Arthur J. Burns, for contestants.

The deceased left a widow, Catharine Finn, and two sons by a former wife — John and James Finn—which sons are the contestants. After a careful consideration of the facts developed by the testimony, the conclusion that the deceased was possessed of a sound and disposing mind, when the will was made, seems quite irresistible. He sent for the attorney to come and draw it; he fully understood the fact of the existence of his ivife and children, and of others who ivere made objects of his bounty. The attorney ivas ignorant on the subject, and received the instructions^as to the provisions of the will wholly from the deceased, who also stated correctly the amount of his estate, to wit, about §6,000 in money. By the paper propounded, he gives to his wife for life the use of the whole; at her death he gives §500 to the children of John and Julia Fox, of Galway, Ireland; to his sister in Ireland $2,000; to the children of John Finn, of the same place, $1,000; to the children of James Finn, of the same place, $700; to his own sons, $100 each; to Sister Josephine, for the benefit of St. Matthew’s school, Hastings, §300 ; for saying of masses for the repose of his soul, §25 ; and the residue (about §1,275) to ReA. David O’Connor, for the benefit of St. Matthew’s church, Hastings. IloAxrever much avc might feel

p. 282

disposed to criticise these provisions, and especially those for his own children, yet it cannot' he denied that, being competent to make the will, and not subjected to any influence undue or otherwise, it must he permitted to stand as a final disposition of his estate.

It is claimed that there was a mistake made in the person nominated as executor', and that the will is void for that reason. If such mistake were made, it is not considered that that fact would furnish a sufficient ground for its rejection. It might still he admitted to probate as to the disposing portions, as they are in no way involved, and an administrator with the will annexed appointed. There were three physicians connected with the hospital, Dr. Warren, Dr. Miles and Dr. Duffy. The latter two attended the patient; whether the first did or not does not appear. After the question as to who should he named as executor had been discussed between the deceased and his lawyer, the testator suggested that “ the Doctor ” be the executor. On being asked the name, he did not recall it; whereupon he was asked if it was Dr. Warren, and he replied that he believed it was, and the proponent’s name was accordingly inserted. Under these circumstances, no sufficient evidence> of a mistake, in that respect, is found.

As the court has not been asked to construe the will on the probate, the questions which may arise in regard to the validity of the bequests to the religious and charitable institutions named in the will, must remain undisposed of here until an accounting shall be had.

A decree granting probate will be entered.