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

The testamentary paper of November 25, 1912, brought into court for probate is objected to by George Hermann, one of the heirs at law and next of kin of Magdalena Hermann (formerly Mrs. Rollwagen), the alleged testatrix, and also by Henry Leis, claiming to be the executor of an earlier testamentary paper, purporting to be made by the same testatrix. The testimony offered in support of the probate and by contestants in opposition thereto is very voluminous. The hearings on the issues of fact began in October, 1913, and occupied for many months the sessions of this court. Portions of this testimony were taken subject to the. usual objections, the validity of which may in a probate cause heard by the surrogate be often advantageously reconsidered by the surrogate before the close of the case. If any such objections after deliberations are then found to be well taken the testimony can be disregarded without prejudice to the litigants. This is one of the advantages offered by the old practice in Surrogates ’ Courts, nevertheless, perhaps fated to be superseded by more modern and less deliberate methods of procedure.

Much of the testimonial evidence taken doubtless relates to very trifling matters, but intermingled with such matters at long intervals possibly are facts of importance in a probate cause. In no other kind of litigation are the parties so anxious to unbosom, with

Magdalena Hermann, whose will is contested, was at the time of its inception, as found in Rollwagen v. Rollwagen, 63 N. Y. 504 , nearly eighty years of age. In this cause her age is made even greater. She was the widow of one Frederick Rollwagen, and consequently had herself been the principal actor in a very leading case on the law of wills in this state. Rollwagen v. Rollwagen, 63 N. Y. 504 . The judgment in that case gives with unsparing precision an account of the early life of our testatrix Mag’dalena, and it need not, therefore, be again reviewed at length. It is a matter of record. It there appears that Rollwagen, a wealthy old butcher by trade, had married his young housekeeper, this testatrix, and that his will in her favor was the product of undue influence imputed to her. The will in question in her favor was rejected. The judgment is most unsparing in its denunciation of her acts and conduct. Prior to her employment by Mr. Rollwagen it appears Magdalena had been a saleswoman in a bakery establishment in this city. From the bakery and from penury she passed to affluence as the wife of Mr. Rollwagen. She seems to have been somewhat better educated than Mr. Rollwagen, who was adjudged to have been an illiterate. She could both read and write, and one witness testified to her fondness for the poetry of Groethe and Schiller. Not

Between the year 1876 and the year 1912, the date of the paper propounded, Magdalena had been remarried, divorced her husband, one Hermann, and had finally entered on what I cannot help regarding as a somewhat pathetic and isolated or lonely old age. It was in her old age that she made the disputed testament. She then had no near relatives, and was surrounded, in the main, by persons who as strangers in blood could have no great affection for an old woman living alone. The fortune which Mrs. Hermann had derived from her first husband, Mr. Rollwagen, obviously furnished' her chief attraction in the eyes of many of those who were about her in her later life. The testimony reveals that the various wills of the old woman were matters of some anxiety to those who profited by them. Consequently, when a favorite was superseded in a later will by a rival, the old legatees evinced great solicitude and the criticism became occasionally more liberal than firmly founded. Between legatees thus situated who have no natural claims to the bounty of testatrix there can be but little choice, and the law is free in such a ease to view the testamentary act with dispassion and without danger of

We are relieved in this case from the necessity of inquiring into the natural capacity of the aged testatrix to testaméntate, for that is conceded in contestant’s brief, and the contest is placed by counsel solely on the allegation of conspiracy, undue influence and the weakness of old age, with the added contention that on the day of making the propounded paper the testatrix was induced to drink an excessive quantity of champagne in order that the scheme of those accused of the exercise of such influence, might be the more readily consummated. There is some proof of this allegation of excessive alcoholism, but, taking into consideration the fact that testatrix came from a country where wine is regarded as an article of diet, and also the fact that she was surrounded by persons accustomed to partake of wine in her house on all occasions, I do not think the allegation merits any extended consideration, especially in view of the contradictory testimony before me on this point. There is no sufficient evidence that at the moment of making her will or at any other time Mrs. Hermann was incompetent by reason of a want of sobriety.

The pleas, allegations or objections interposed to the probate are undue influence and conspiracy. On these pleas, objections or allegations the contestant alleging them has, in this state, the burden of proof and the onus of sustaining it. This burden does not shift — it is said. Matter of Kindberg, 207 N. Y. 220 , 228, 229; Matter of Will of Falabella, 139 N. Y. Supp. 1003 ; Matter of Will of Gedney, 142 id. 157,160. While this rule governing burden of proof in probate cases is

Pleas or allegations of undue influence have been so often before courts of justice that, as I have often stated, unless something new can be added to the discussion there is little justification for repetition or amplification of settled authority. Matter of Van Ness, 78 Misc. Rep. 598 . In no reported case that I have ever seen, however, are the final elements of undue influence discussed or even traced to their source. Therefore, at the risk of appearing elementary and commonplace, I shall, for the purpose of precision in the discussion in this case, endeavor to supplement distinctions, perhaps sufficiently apparent to others, but certainly not always noticed in the reported adjudications.

Undue influence in a court of probate, although it may involve elements of fraud and duress, for it is protean in character, is nevertheless now an allegation or plea distinct from a plea of fraud or duress. Sir John Nichols’ predication in Williams v. Gonde, 1 Hagg. 596, ‘‘ that undue influence must be of the nature of fraud or duress,” is, at the present day, inconclusive. Fraud, which includes misrepresentation, is always the subject of a separate plea in the modern English probate practice. In that practice a plea or allegation of undue influence raises a question of coercion, and that only. Lord Penzance in Parfitt v. Lawless, (1872) 2 P. & D. 471; Sefton v. Hopwood, (1855) 1 F. & F. 578; Lovett v. Lovett, (1857) 1 id. 581. While , it may be true that undue influence can be regarded as a species of the genus fraud, undue influence has become in probate law sufficiently differentiated to be regarded in the catalogue of wrongs as a distinct

Undue influence in this court, while it always imports moral coercion, is also distinct from “ duress ” as interpreted in the courts of common law and equity, where duress consists in menace or actual or threatened physical violence or imprisonment. Duress is a physical wrong; coercion a moral wrong. Where duress is established in law or in equity no consent of a testator at all is possible. Undue influence in this court differs from duress in many particulars. Duress is primarily a matter of legal cognizance.

In equity an allegation of undue influence is a well known allegation in suits to rescind contracts or to enforce specific performance of contracts, and the rules laid down in equity, in so far as they relate to the invasion of a “ freedom of the volition of a contracting party, ’ ’ are very analogous or similar to the rules laid down in the testamentary common law in relation to freedom of testators’ wills in respect of testamentary acts procured from them by undue influence. The rules of the testamentary common law are, however, naturally more specific or concrete for our purposes than those familiar to equity practitioners, and in this court it is the testamentary common law which is primarily controlling in respect of undue influence exercised over testators. Both Anson and Pollock in their justly celebrated treatises on Contracts

What is undue influence in respect of testamentary acts and dispositions has been stated to be a question difficult to answer in the abstract. Doubtless definition is always a difficult logical process. Legal definitions in particular are not usually well regarded (Swinb. 6), as they are generally a posteriori and involve at. some stage the inductive process and not the deductive process familiar to a priori disciplines. The vice of principles or definitions arrived at by incomplete induction is well understood for better reasons than those given by Swinburne. But the a priori definitions of testamentary law are different. In so far as the legal definition of undue influence is a priori it is recognized in testamentary common law, which was built up originally by scholastic lawyers trained in the civil, law and the old logical disciplines.

Undue influence in testamentary law postulates freedom of the will, or, in more modern philosophical verbiage, that a testator’s volition is indeterminate. Now just at this point testamentary law touches some of the deepest principles in the philosophies of all the ages. Freedom of the will, libertas arbitrii, is conceded to be one of the profoundest problems in all departments of metaphysics, and yet it determines not only many principles of testamentary law, but all theories of life and morality. Testamentary law, which, as stated above, is scholastic in origin, takes no note of modern philosophical doubts on freedom of the will, and it invariably presupposes a testator’s capability of self- • determination, or, in other words, the absolute and in

In order that a testamentary act be valid the testamentary common law requires, and has always required, not only that the testator must be free from physical restraint (duress) (Godolphin, Orphan’s Legacy, Pt. 1, chap. 9), but that his soul, mind, volition or will, that dual principle of the ego, should also be free and not coerced. Swinb., pt. 7, § 2 (1868), L. R. 1, 481. It will be observed that the old technical term of testamentary law employed in this connection is “ coerced.” I have never seen the origin or history of the legal term “coerced” discussed, although it runs through all the modern leading cases as the one sufficient criterion of undue influence. Williams v. Goude, 1 Hagg. 581; Wingrove v. Wingrove, (1886) 11 P. & D. 82; Children’s Aid Society v. Loveridge, 70 N. Y. 394 . And see cases cited in Matter of Campbell’s Will, 136 N. Y. Supp. 1105 , and in Matter of Van Ness, 78 Misc. Rep. 598 . That the term coercion is a mere translation of Latin usage of the canonists could be easily demonstrated.

The slightest reflection will disclose that coercion in the sense of a compulsion of the mental states of a human being is a very different force or influence from a coercion which affects his rights to physical freedom.

Mr. Williams, in his most excellent compendium of the Law of Wills and Succession (p. 31), notes an admirable definition of undue influence, taken, he says, from the Roman law: “ Quamvis si liber esset noluisset, lamen coactus voluit.” I do not find the original of this citation, but the Roman law also required that a will must originate in the free will of the testator, and, if a testator was coerced to make or alter a will, the will was voidable for this reason (D. 29,6,1), and the property then reverted to the Fiscus. The Roman law was particularly precise and refined on principles of this character. Const., 1 C. 6 , 34. Violent or impetuous pressure whereby a testator was swayed against his free will vitiated a Roman testament. While the principle of wrongful coercion of a testator’s will undoubtedly originated in the Roman law, any coercion was in the old spiritual courts of England, whence we derive our testamentary common law, a wrong. In those spiritual courts the term coercion had even a larger meaning. We find that Ayliffe employs it in the Parergon Juris Canonici, and Sir Matthew Hale likewise, in references to the sentences of the spiritual courts, in the general sense of restraint.

We have now arrived at a point where it may be stated generally that in probate law any wrongful interference by or on the part of a beneficiary with a testator’s freedom of will, or volition, may be fatal

Undue influence can rarely be made out by direct evidence and hence indirect or circumstantial evidence is sanctioned by authority in support of this allegation. Rol lwagen v. Rollwagen, 63 N. Y. 519 , cited Matter of Van Ness, 78 Misc. Rep. 602 . The proofs offered in support of the allegation of undue influence in this proceeding are largely in the nature of circumstantial evidence. Circumstantial or indirect evidence may be cogent or it may be slight. It is always to be received subject to rules relating to legal relevancy. Although evidence may be logically relevant, if it is not legally relevant it cannot be received in a court of justice. In this ease the testimony of the acts and conduct of

For many years prior to the making of the disputed will the testatrix had lived alone with a single servant in her own substantial private dwelling-house in this city. Her habits had become those of an elderly recluse in a great measure, and she found her diversions and enjoyment largely within the four walls of her own dwelling. Her servant, her agents, her rents, her maladies and her simple diversions made up the round of a monotonous existence. Among those who ministered during these years to the wants of testatrix was Mrs. Stein, the wife of the executor under the will in question. Although not related by blood, Mrs. Stein always addressed the testatrix as “Aunt,” and the evidence discloses that if testatrix had a real regard for any one or real reason for such regard it was for Mrs. Stein, who for years assiduously cared for

It is obvious from the testimony that Mrs. Stein regarded herself as a legitimate object of the bounty of testatrix and that she regarded the others as intruders, It is equally obvious that Mr. Quintín and Mr. Leis, legatees for considerable sums under an earlier testament made by testatrix, regarded Mrs. Stein and her faction as dangerous opponents. The conduct of these factions for the old woman’s favor and testamentary regard figures largely in the evidence. The domestic . politics of these factions, one headed by Mrs. Stein and the other by Mr. Quintín and Mr. Leis, also figure largely in the evidence. It was apparent as the evidence developed that Mrs. Stein by herself was not a match for the other and more astute faction. Mrs. Stein seems to have been a quiet, domestic and well behaved but rather slow minded person. Certain it is that she had long ministered to the wants of the testatrix with a fidelity and care which gave her great claims on a childless old woman, without a single relative for whom testatrix cared or could care. If there was a natural object of the bounty of testatrix it was, ■perhaps, Mrs. Stein. Had not one Mrs. Noll appeared on the testamentary scene Mrs. Stein’s conduct would doubtless have continued irreproachable.

For some period prior to the execution of the paper now propounded, it was apparent that Mrs. Hermann’s end was approaching, and ! think the evidence discloses that the resources of the factions indicated were put to a strain. The testamentary dispositions of testatrix were evidently matters of supreme interest to these factions. Before taking up the somewhat desultory evidence in detail, we may recall that upon an allegation of undue influence the declarations of those charged with its exercise become competent in varying degrees, according to the circumstances of a particular case. Rollwagen v. Rollwagen, 63 N. Y. 519 . On this issue the way of life of testatrix and her relations with the persons said to have influenced her are competent evidence, Coit v. Patchen, 77 N. Y. 533 ; Boyse v. Rossborough, 6 H. L. Cas. 42, 58; Rollwagen v. Rollwagen, 63 N. Y. 519 . In Rollwagen v. Rollwagen it is stated without reservation or qualification ‘ ‘ that the acts and declarations of such person wielding the influence ” may be shown on this issue. No distinction is drawn between declarations prior to the act of will or subsequent thereto. No distinction is made between declarations part of a competent res gestee, or naked declarations. Why should there be, as a party is judged out of his mouth? I have always been guided by this express statement, although, if left to myself, I would have, perhaps, been inclined to limit the competent declarations of such persons to those which were a part of a competent res gesta, or else competent admissions or declarations against, interest.

In the early part of the year 1912, which was the year the contested will was made, there appeared at the dwelling of testatrix, one Beatrice Noll, a German

On the direct examination the lawyer in question was asked by proponents ’ counsel calling him, without objection, whether he had ever been charged with crime, and he stated that he had. On cross-examination by contestants’ counsel the lawyer was asked over objection of one counsel for proponents if he had been

That some of the legatees mentioned in the will now offered for probate were highly respectable people and no parties to the making of the will is apparent, but the title of all the legatees depends in this case not only on the regularity of the execution, but on the capacity of the testatrix and her freedom from all manner of coercion by Mrs. Noll, Mrs. Stein and their agents or abettors. It would seem apparent that the respectable Mrs. Stein had some reason to think that the sudden entrance of the mysterious Mrs. Noll into the household, the most private affairs, and even the testamentary act of the aged testatrix, was to say the

It was said in Rollwagen v. Rollwagen, 63 N. Y. 519 , that undue influence “ can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it and the acts and declarations of such person.” Here the general declarations of persons charged with such influence are expressly declared to be competent on an issue of undue influence. If as here such a person is also one of several legatees, does that additional fact exclude his declarations, at least, if part of competent res gestae?

When we come to the ceremonial required by the Statute of Wills for the formal execution of a solemn testament we find it unquestioned that there was a substantial compliance with the statute. The Statute of Wills requires what is technically known as rogalio testium, or a request from the testatrix to the attesting witnesses to act as such. Tarrant v. Ware, note, 25 N. Y. 425 ; Neugent v. Neugent, 2 Redf. 369; Matter of Lyman, 14 Misc. Rep. 352 ; Burke v. Nolan, 1 Dem. 436 , 440; Matter of Kivlin, 37 Misc. Rep. 187 . We must observe in this case that in the first instance the summons to the attesting witnesses to attend the execution of the will offered was not made by testatrix herself, but by the persons implicated by the allegation of undue influence. This in itself is not in all cases fatal, if the testatrix ultimately or thereafter requested such witnesses being present to sign their names as witnesses at the end of her will. But as attesting witnesses to a will are placed as safeguards about an intending testatrix the omission of an original summons by her to them in the first instance and its delegation to the very persons implicated in the charge of contestants is unfortunate in this particular case. . It is not necessary in a probate case to connect all the attesting witnesses with conspiracy or the undue influence charged. Even persons of high character may be employed and yet fail to do their duty on such an occasion. Here the attesting witnesses testify to a substantial compliance with the Statute of Wills by testatrix in the act of execution, but this does not.in this case refute the proof of undue in

The allegation of undue influence is sought to be established not only by the acts and conduct, but also by the declarations and admissions of Mrs. Beatrice Noll, one of the legatees named in the disputed will.

It is a very old rule of evidence that statements made by a party to a proceeding, if they tend to prove his adversaries’ case, are admissible in evidence as admissions. Maltby v. Christie, 1 Esp. 395. But this rule is subject to exceptions. It is said in this state that the admissions of one legatee, made prior to the execution of the will, are incompetent as against other legatees, parties to the proceeding and interested in the result. Matter of Myer, 184 N. Y. 54 ; Matter of Kennedy, 167 id. 163, 177 ; Matter of Benjamin, 136 N. Y. Supp. 1070 , 1080; Matter of Baird, 47 Hun, 77 . Matter of Baird does not seem to contain a very exhaustive discussion of principle, but it is express enough. In Matter of Myer, 184 N. Y. 54 , the issue of undue influence was not, however, tried out, and the case turned upon the capacity of testatrix. Matter of Kennedy was a proceeding to establish a will lost or destroyed. The admissions and declarations of one legatee were rejected as inadmissible against the others on the issues actually presented. In this pro

If a declaration of a co-conspirator is part of a competent res gesta, that is, of an act or conduct relevant to the issue of conspiracy, I think the declaration is clearly competent, notwithstanding the conspirator making it is a legatee and his mere admissions are ruled out by the cases. Matter of Wheeler, 5 Misc. Rep. 279 , 286; Matter of Budlong, 54 Hun, 131 . But I am inclined to think the charge of conspiracy has not been made out in this case, and

But there is another question. If the declarations of Mrs. Noll to the various witnesses called to the stand are not competent as declarations of a conspirator against co-conspirators, are they then -receivable as admissions? Doubless had Mrs. Noll been a sole legatee her admissions against her interest would be receivable in this as in any other litigation. But she was not the sole legatee, and it is urged that as admissions her declarations ought not to be received on that ground in this case. Abstractly this contention may be right under the rulings in this state. To avoid controversy I shall ignore in the conclusion all such evidence as relates to the admissions of Mrs. Noll or Mrs.' Stein made to third persons not in the presence of Mrs. Hermann. Thus any error on this head will not affect the conclusion reached.

Most of the declarations of the testatrix herself were given in evidence without objection. The contents of such declarations are not proof of the truth of the fact stated, for that would be hearsay (Smith v. Keller, 205 N. Y. 39 ; Marx v. McGlynn, 88 id. 357, 374; Waterman v. Whitney, 11 id. 157); they are admissible for the purpose of proving the condition of testator’s mind. They are entitled to no weight as proof of undue influence. Marx v. McGlynn, 88 N. Y. 374 ; Matter of Woodward, 167 id. 28. While not competent to prove acts of others amounting to undue influence, such declarations are, however, competent, as I have before stated, to show the operation such acts

We come now to the consideration of the actual proofs on the issue of undue influence without the admissions and declarations of Mrs. Noll and Mrs. Stein. It is not enough to show an opportunity to commit the offense charged. The offense itself must be made out by relevant or direct evidence. I think it is so made out. It is an extraordinary circumstance, and one established, that the comparative stranger to testatrix, Mrs. Noll, had much to do in the creation of the paper propounded. What is still more extraordinary and established is that she is named as a legatee in the same paper for a large amount. How was this brought about? These are circumstances which require more justification than the record affords in view of other circumstances established. Mrs. Noll was not employed about Mrs. Hermann’s dwelling-house; she had no labor to perform there, and no business in the dwelling, apparently, other than the new and old wills of Mrs. Magdalena Hermann; at least, this was her main business. The old servant of Mrs. Hermann tried to eject Mrs. Noll as an unworthy intruder. What an extraordinary testamentary situation these bare facts disclose, for it certainly is extraordinary that an entire stranger to the aged testatrix should be allowed to meddle at all with the last will and testament of the alleged testatrix. Mrs. Hermann, it will be remembered, had been testate before she knew Mrs. Noll, and there is evidence that her prior will was long satisfactory to herself. The testimonial evidence of Barbara Hecht, Mrs. Stein herself and Mrs. Amelia Hermann discloses how it came about that testatrix changed her will and attempted to make a new will. Testatrix became prejudiced against Quintín and Leis by reason of the acts and conduct of Mrs. Noll and

If the old servant, Barbara Hecht, is to be believed, ■ and she is not adequately contradicted in this, nor is she discredited as a witness, additional or extra sheets were inserted in the old will to carry out this scheme, and Mrs. Hermann was induced to believe that this was done by her prior legatees, Leis and Quintín. The effect which the misrepresentations had on the aged testatrix are competently proved by Mrs. Hermann’s own declarations. Cudney v. Cudney, 68 N. Y. 152 . They establish that testatrix was induced to believe that by her prior will Quintín and Leis took her whole estate, which was not the fact. Mrs. Stein herself testified, as well as Mrs. Amelia Hermann, that Mrs. Magdalena Hermann so believed. There is no doubt from the evidence that Mrs. Hermann’s mind was thus unfairly prejudiced in and about her act of will against Mr. Leis and Mr. Quintín, her prior legatees, by misstatements of fact made by those charged with the exercise of undue influence. This under the decision in the case of Budlong’s Will, 126 N. Y. 423 , is sufficient" proof in itself of undue influence. The mind of testatrix was coerced by misrepresentations. I have brought my ruling within the decision in Matter of ' Kindberg, 207 N. Y. 221 , which I followed in Matter of Falabella, 139 N. Y. Supp. 1003 , placing the burden of proof on those alleging a plea of undue influence.

In this párticular case any evidence of an imposition upon the testatrix in respect of her act of will, if uncontradicted, ought to be sufficient proof of undue influence, as the aged testatrix is not proven to have had the benefit of disinterested and respectable legal assistance in the act of will, nor did she have the safeguards about her of circumspect and entirely neutral attesting witnesses. Two of the attesting'witnesses were procured by Mrs. Noll and Mrs. Stein. One of them was instrumental in bringing about a particular legacy. He thus made himself an actor, not a witness.

I could, I think, refuse probate according to probate law on the additional ground that the proponents have not sustained the burden resting on them to show satisfactorily that the ins trament propounded was the last will and testament of Mrs. Hermann. In Rollwagen v. Rollwagen, 63 N. Y. 517 , it was said on the plea of undue influence that “ a party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. It he fails to satisfy the court that the instrument speaks the language and contains the will of the testator, probate must be refused.” I cannot, for the reasons stated by me in Matter of Tod, 85 Misc. Rep. 298 , think that this judgment was intended to be overruled by Matter of Kindberg, 207 N. Y. 221 , although if the burden of proof of nndue influence is on a contestant, as said in the Kindberg case, it cannot at the same moment be on .proponent, as said in the Rollwagen case. The fact is that in probate cases there is a great discrepancy in many of the decisions on the subject of burden of proof, as I attempted to show in my judgment in Matter of Gedney, 142 N. Y. Supp. 157 . So much so

I cannot believe that the recent ruling on the burden of proof in probate cases was intended in any event to disturb the doctrine of Howland v. Taylor, 53 N. Y. 628 , and Rollwagen v. Rollwagen, 63 N. Y. 517 , that before a will is admitted to probate the surrogate must be satisfied that it is the will of the testator. I referred to this point in Matter of Van Ness, 78 Misc. Rep. 592 . But as this particular point is not now necessarily here, and the judgment need not rest on it, I will not discuss it at large. For the other reasons already stated by me, probate of the paper propounded is refused.

Decreed accordingly.