In re the Probate of a Paper Propounded as the Last Will & Testament of Mooney

On the offer to probate the paper writing now propounded, the executor named in a will of earlier date has filed objections.

. On the hearing it appears that Anne L. Mooney, whose testamentary dispositions are now at issue, was, in ¡November, 1910, an unmarried elderly woman nearly seventy years of age. She then lived alone with a single attendant in a small flat in the city of New York. She had no ascertained relatives, having survived a bachelor brother who had lived with her most of her life. For some years prior to 1910 Miss Mooney had been an invalid, having suffered her first apoplexy in the year 1905, or thereabout. ¡Before this seizure she was an intelligent woman and able to read. This stroke resulted in the condition which physicians, I believe, term hemiplegia, or paralysis of the side of the body, rendering Miss Mooney’s right side, arm and hand useless, besides seriously affecting her powers of locomotion and speech. But, as no medical experts were called as witnesses, the surrogate is obliged to infer the disorder from the very general description and symptoms described unmistakably by the lay witnesses as “ paralysis ” or “ stroke.” From the lasting results of the first strokq, it must have been a severe one.

It was, however, shown on the hearing that Miss Mooney, subsequently to the first attack, measurably recovered possession of her mental faculties, and she could talk a little, but “ not much“ very few wordsher answers were mainly monosyllables and affirmative or negative motions of the head. Yet it appears that she was able to- keep house for her brother after the first stroke and until her second attack after his death. The brother and sister had few acquaintances. They were obviously highly respectable people, and their later- existence seems to have been that of lonely valetudinarians. Both brother and sister were Catholics, and after her first seizure testatrix occasionally went out of doors for the purpose of attending the parish church in the neighborhood. But,.in the month of October, 1910, and for some-months prior thereto, she was not able to go about much without assistance. This evidence is, I think, entirely uncontradicted. The variations and discrepancies in it are not noticeable on its general accuracy.

The earlier will provided, in substance, for the payment of all debts and funeral expenses of testatrix, and then for religious observances, in accordance with Catholic faith and tradition, such as masses for testatrix after her death, masses for her deceased brothers and for her “ beloved mother,” Maria Mooney. The other bequests of the earlier will were wholly devoted to charitable or religious uses. , The former agent of her brother James and of herself, one Mr. Spichter, who took no benefit under such will, was named as executoro of this first instrument.

If we assume that the first will then expressed the testamentary intentions of the testatrix, and there is no evidence that it did not, the later writing now propounded evinces the most marked change of intention on the part of the alleged testatrix; and this is to be considered by the surrogate in view of the circumstances hereinafter mentioned. McLaughlin v. McDevitt, 63 N. Y. 213 , 217; Children’s Aid Soc. v. Loveridge, 70 id. 387, 402. Such a disposition of her estate as that indicated, when made by a lonely old woman, without kindred, a Catholic in faith, would not appear to be unnatural. It doubtless summed up the cherished affections. and sentiments of the whole life of the testatrix. The later testament, in any event, shows a complete change of a prior intention. Is such radical change explained on this proceeding to probate the later writing, made under circumstances which I shall now proceed to consider ? That is one of the elements for my present consideration, and it is an important one, under the circumstances here indicated.

It is of the first importance in this cause to determine from the testimony before me just what did occur on the 17th of November, 1910, when the paper propounded ap-' pears, who were the actors in its preparation, .their precise. relation to the testamentary act in question and the weight of the evidence on the capacity of Miss Mooney, the alleged testatrix, to make any will at all on that day, and under the circumstances already partly narrated.

■ The surrogate’s consideration of charges of fraud, duress and circumvention may meanwhile.be relegated to the background, for if the testatrix was then incompetent to make a will, or if the act in question was not done by her consciously, animo testandi, the probate sought must be denied.

On the 17th day of November, 1910, Miss Mooney, the alleged testatrix, not only was confined to her bed, but by preponderating proofs it is disclosed that she was unable to carry on the simplest conversation; she was inanimate, listless, motionless, and some disinterested witnesses say that she was wholly unconscious when they saw her. But we may, I think, disregard this last statement without prejudice to the result. Certainly after her second stroke Miss Mooney never again took solid food. Two disinterested witnesses saw Miss Mooney on November 17, 1910, both before and after the hour of the execution of .the paper in controversy. If their testimony is accurate Miss Mooney on -that day lacked capacity to perform the simplest legal act. But, as such testimony is to some extent challenged and contradicted, the surrogate must go f arther to find convincing proof of the condition of the testatrix on the day in question. The landlady of the house in which Miss Mooney lived and died and where the alleged testamentary act was performed, gives, I think, important'.testimony on this point, in which she is corroborated. This witness certainly had ample opportunity to observe the state of Miss Mooney’s mind and health on or about the 17th of'November, 1910, and her evidence is not favorable to proponents. While there is contradiction in many points on most of the testimony given in on the hearing, it is yet apparent from the evidence at large most favorable to proponents, that on the 17th of November, 1910, Miss Mooney’s state of mind and body was desperate; that her mode of communicating her wishes and desires was most limited and unsatisfactory, and that her mental capacity was very doubtful. A written statement of the lawyer employed to draw the will is in evidence, .and is, I think, im

These circumstances, considered apart, are not fatal to probate. But certainly such a combination of facts and circumstances taken in connection with the very serious condition in which the alleged testatrix then was, called for the highest circumspection and prudence on the part of all who had to do with a new will for the dangerously sick and speechless woman of very uncertain mental capacity.

Was there such circumspection on the part of its draftsman and attesting witnesses as entitled the paper propounded to respect 'as the will of a capable, conscious, intending testatrix ? ¡Reluctantly the surrogate feels constrained to answer that there was not. If the lawyer who prepared the paper .of November 11, 1910, could not understand Miss Mooney in June, 1910, he could not better understand her in November, 1910, after she had her second stroke and was by all accounts more incomprehensible than before. How then did the lawyer get his instructions for the contents of this testamentary paper ? . It must have been from some other

How, what from the evidence is conceded to have taken place at the session held for the purpose of making a will and celebrating the formalities attending its execution ? There were then present the alleged testatrix, whose mental and. physical condition were most unsatisfactory, if not desperate, the two attesting witnesses, including the lawyer who drafted the paper, and also Mrs. Shaughnessy, who was the'sole beneficiary of the will propounded, although at some point this legatee retired from the session by the direction of the lawyer. The lawyer and the husband of the sole legatee then proceeded, with some reference to the Statute of Wills, to the execution of the document now propounded. It was certainly a very grave undertaking on their part, and it could have been dictated only by imperious necessity of some kind. Of this necessity the surrogate detects no evidence. Miss Mooney was already testate, -and there is visible on her part no eagerness for change. In fact, Miss Mooney, by the account given in by the attesting witnesses themselves, took only a subordinate part in the performance of Hovember 17, 1910.,

There is no pretense that the chief beneficiary of this latter will was-even named by Miss Mooney, the alleged testatrix. The main persons in the preparation of the instrument do say that she pointed out the sole beneficiary, and that the lawyer named executor was likewise pointed out in the same manner with a monosyllabic “ you.” In this doubtful way the contents of the will now offered and the dispositive provisions -are conceded to have been arrived at.

Let us suppose, for an instant, that at the time the paper now offered was in course of preparation, two women and not one had been present in the room with testatrix, and then Miss Mooney had- been summoned to select one of them

Is it possible that such evidence as that indicated is sufficient, under the circumstances-, to establish that this paper now offered to the surrogate is the conscious -and deliberate act of a capable testator? The surrogate is unable to bring himself to an affirmative conclusion on this point.

When it came to the signing -of the paper,, at the end thereof, as commanded by -the Statute of Wills, it appears that the lawyer, without any request from -the alleged testatrix, but of his own initiative, as he says, took up the useless left hand of the sick woman, placed the pen in her rigid fingers, and in this way was affixed her mark only to the document before me. Such is the evidence of the attesting, witnesses themselves on the point of. a subscription by testatrix. If we remember that there is evidence of disinterested persons to.the effect that at this time Miss Mooney had not regained her faculties, and that since her second “ stroke ” she was never- herself again, but a mere dying mass of inanimate clay, what is the duty of the surrogate in such a case as this?

While a surrogate should always, I think, have most careful and conscientious scruples in rejecting a paper which concerns the will of the dead, as it was said in Rollwagen v. Rollwagen, 63 N. Y. 517 , there should he no straining after probate in a doubtful case, and the same thing’ was said in Parish v. Delafield, 25 N. Y. 1 . The surrogate is

It was said by one of the most distinguished probate judges of modern times that the burden of proof in probate proceedings is always on proponents. Barry v. Butlin, 1 Curt. 637 ; 2 Moore P. C. 480. And see Thayer’s Cas. Evidence, 32, 100, 106; Crispell v. Dubois, 4 Barb. 393 , 397; Hoyt v. Jackson, 2 Dem. 443 ; affd., 112 N. Y. 493 . This burden never shifts throughout the entire proceeding; otherwise many of the decisions casting additional burdens, or degrees of proof, on proponents under certain circumstances prescribed, would' be useless distinctions. The contrary doctrine if intended to be announced in Parish v. Delafield, 25 N. Y. 97 , has been certainly qualified in other decisions more directly in point. The burden of taking up the evidence on an affirmative plea, or an exception to probate, of course, rests in the. first instance with contestants, and thait is all, I think, that is generally meant by stating that the burden of proof is shifted or that it is on contestants in probate causes. Matter of Martin, 198 N. Y. 196 . When contestants have furnished their affirmative evidence, the proponents’ adminicular proofs, or those in support of the probate, are in order. Taylor Will Case, 10 Abb. Pr. (N. S.) 300. But the onus probandi is always on proponents of -a will and it never shifts throughout the cause. This great rule of probate jurisdictions is reinforced, by several provisions of the Statute of Wills and procedure thereon. Code Civ. Pro., § 2622; Decedent Estate Law, §§ 10, 15; Matter of Schreiber, 112 App. Div. 495 ; Matter of Goodwin, 95 id. 183. A very recent case speaks, I venture to -think (Matter of Blaine, 143 App. Div. 687 , 689), without precise reference to established rules denoted above. But also, I venture to think, with no intention of departing from such rules.

While I have no doubt that the burden is. on the pro

The proof on the part of the proponents, that the subscription of the paper propounded was made by testatrix is, I think, insufficient. It purports to he made by mark of testatrix, formed with the aid of the lawyer. No doubt, one who is unable to sign her name may call upon another for aid even to the extent of holding her hand and guiding it. Robins v. Coryell, 27 Barb. 556 ; Matter of Kearney, 69 App. Div. 481 . But in some way the act of subscription must he the act of the intending testator and not of another. I can see no evidence of request for aid on the part of Miss Mooney, and none is pretended. It is not apparent that the subscription was more her act than that of another. This is not enough. The proofs, therefore, on this point are insufficient to entitle the paper offered to probate.

Nor am I satisfied with the proofs offered to show that on November II, 1910, the testatrix was of sound mind and memory. In fact, I am convinced that she had not, oil November 17, 1910, capacity to make or revoke a will.

In the case of a helpless, sick, or dying woman, the evidence to establish her will is required to he clear and con.vincing, and the burden cast on the proponents, under such conditions, has not, I think, been discharged in this cause. Proponents have failed to establish that the paper propounded was the will of Anne L. Mooney, or that it was signed by her as required by the Statute of Wills.

The probate sought must, therefore, he denied, and the findings and decree herein so provide, in accordance with this opinion.

Probate denied.