Marx v. McGlynn

In 1869 Catharine Henrietta Marx, Mary Caroline Marx and Emma Julia Marx, three unmarried sisters, were residing together in the city of Hew York as one household. Mary was about fifty years old, Catharine somewhat older, and Emma a few years younger. Their property consisted mostly of real estate, which they owned as tenants in common, and from which they received an annual income of about $15,000. They were brought up in the Protestant Episcopal Church, and were zealous and devoted members thereof. Then* usual place of worship was St. Alban’s Church, where the services were of a highly ritualistic character. They were very much interested

“First. I give and bequeath to my sister Catharine Henrietta Marx the sum of $1,000 a year during her life and all my clothing forever, and all my right, title and interest in the premises now known as number 122 East Fortieth-street, Hew York city, and my share in the family silver, during her life. After my sister’s death I wish my share of the said house aud silver to go to Rev. Aloysious J. D. Bradley.

“Second. I give, devise and bequeath to Rev. Dr. Edward MeGrlynn, the sum of $1,000.

“Third. I give and bequeath to Rev. Aloysious J. D. Bradley of Liverpool, England, all my personal property now in a storage house in Liverpool, England, for his own use forever. It is my will and desire that my executor hereinafter named pay to Rev. Aloysious J. D. Bradley all the income derived from my estate after paying the necessary expenses accruing thereon. After the death of Rev. Aloysious J. D. Bradley, I give, devise and bequeath to the Roman Catholic Little Sisters of the Poor of the city of Hew York all the rest, residue and remainder of my estate for their use forever.

“Lastly. I do hereby nominate and appoint Rev. Dr. Edward McG-lynn executor of this my last will and testament, with full

In August, 1878, this will was presented for probate in the Surrogate’s Court in the city of Hew York, and thereafter Bradley, upon his petition was permitted to intervene and appear in the proceedings by his proctor. Catharine contested the will on the ground that it was not according to law, that the testatrix was not of sound mind and memory, and that the will was the result of undue influence. The surrogate, after hearing the evidence, admitted the will to probate, and his decree was, upon appeal to the General Term, affirmed.

We are not to examine the evidence and weigh it as a court of original jurisdiction. If there was sufficient evidence to authorize the decision made by the surrogate and affirmed by the Supreme Court we must affirm the judgment. It was for the surrogate and the Supreme Court to weigh the evidence and to draw conclusions and inferences therefrom and to determine the questions of fact. We can consider questions of law only. (Davis v. Clark, 87 N. Y. [Mem.] 623, and in the Matter of the Probate of the Last Will and Testament of George Ross, deceased, 87 N. Y. 514 .)

It is undisputed that the will was executed with the formalities required by law. There is nothing in the statute which requires any particular qualifications of the witnesses. They were both men of sufficient age and intelligence and while neither of them had any previous acquaintance with the testatrix they were able to tell how she appeared and conducted herself at the time the will was executed and that is sufficient. It cannot be doubted that it is wise on such occasions to call as witnesses persons who have previously known the testator or testatrix. The evidence of such persons would in all cases be more satisfactory; but it cannot be said as matter of law that these witnesses were not perfectly competent and that their evidence is not sufficient, standing alone, to establish the due execution of the will.

It cannot be doubted that the testatrix was, within the meaning of the law, of sound mind and memory. She appears from

The allegation of undue influence presents a more serious question; but after a careful reading of the evidence we cannot say, as matter of law, that it is established that the will was the result of undue influence exercised upon the mind of the testatrix at the time of its execution. Undue influence may be exercised by physical coercion or by threats of personal harm and duress, by which a person is compelled, really against his will, to make a testamentary disposition of his property. That kind of undue influence can never be presumed. It must be shown by evidence legitimately proving the facts, and where it is established, the will cannot be admitted to probate, for the reason that it is not the will of the testator.

There is another kind of undue influence more common than that just referred to, and that is where the mind and the will of the testator has been overpowered and subjected to the will of another, so that while the testator willingly and intelligently executed a will, yet it was really the will of another, induced by the overpowering influence exercised upon a weak or impaired mind. Such a will may be procured by working upon the fears or the hopes of a weak-minded person; by artful and cunning contrivances; by constant pressure, persuasion and effort, so that the mind of the testator is not left free to act intelligently and understandingly. It is not sufficient, however, for the purpose of establishing undue influence, to show that the will is the result of affection or gratitude, or the persuasion which a friend or relative may legitimately use; but the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which the testator would not have made if left freely to act his

The claim is made on behalf of the contestant that this presumption of fact was not rebutted or overcome by evidence, and hence that the case comes to us with this presumption unimpaired existing in it. But we think otherwise. The surrogate had before him the diaries of the deceased kept during the whole of her sojourn in Europe, photographing her mind, giving her inmost thoughts and her mental impressions and the facts transpiring around her from day to day. He also had numerous letters written by her in confidence to her sisters at home, and there is nothing in those letters or diaries indicating that Bradley had attempted to operate upon her hopes or fears

I have not cited or referred to the numerous authorities upon the subject of undue influence found in the very learned and interesting brief submitted to us by the counsel for the appellant. They lay down and illustrate general principles which receive our fullest sanction and which we have applied in this case.

I have thus far considered this question as if the diaries and letters introduced in evidence by the contestant were evidence of all the facts stated in them. It was held by the surrogate, and by the Supreme Court at General Term, that they were not, and we are of that opinion. They are in the nature of hearsay evidence, declarations of the deceased which are incompetent for the purpose of defeating or destroying the will, or any of its provisions. They are competent only as bearing upon the condition of the mind of the testatrix at the time of the execution of the will. Such memoranda or declarations, whether made before or after the execution of a will, are competent as bearing upon the testator’s mental capacity. They are also competent as bearing upon the condition of the testator’s mind, with reference to the objects of his bounty. They may be given in evidence for the purpose of showing his relations to the people around him, and to the persons named in his will as beneficiaries. They are, however, entitled to no weight in proving external acts, either of fraud or undue influence. (1 Redfield on Wills [3d ed.], 538; Waterman v. Whitney, 11 N. T. 157). The rule, as laid down in that case, is that “ where a will is disputed on the ground of fraud, duress, imposition or other like cause, not drawing into question the testator’s mental capacity at the time of its execution, neither his prior nor subsequent declarations are evidence. But where the will is resisted on the ground

We are, therefore, of the opinion that the objections of the contestant to the probate of this will were properly overruled, and that no error was committed in admitting the will to probate.

Under section 11 of chapter 359 of the Laws of 1870, applicable to the Surrogate’s Court in the city of ¡New York, the contestant asked the surrogate to construe the will, claiming that some of its provisions were illegal and void. The construction of the will is reasonably free from doubt upon the facts as they appear. In the first clause the devise of the house to Bradley, who is shown to be an alien, is void, as an alien cannot take real estate by devise. In the third clause of the will a valid trust is created. There is a direction within the meaning of the statute (1 ¡R. S. 728, § 55) to receive the rents and profits of the land and apply them "to the use of Bradley. A direction to pay over rents and profits is equivalent to a direction to apply them to the use of the beneficiary. (Leggett v. Perkins, 2 N. Y. 297 ; Vernan v. Vernan, 53 id. 351 .)

It is true that there is no direct or express devise of the real estate to the executor in trust, but such a devise must be implied, and in analogous cases has frequently been implied. (Betts v. Betts, 4 Abb. N. C. 385 ; Vail v. Vail, 7 Barb. 226 ; Leggett v. Perkins, supra.) The executor is to receive the income of the estate. He is to pay the necessary expenses of the estate and pay over the income, and hence it must be implied that the testatrix intended that he should take the title of the estate in order that he could manage and control the same,

At common law an alien could take land by devise, or grant and hold it against the whole world except the sovereign, and even against him until inquest of oifice found. But our statute provides that a devise to an alien of any interest in land shall be absolutely void and that the land thus devised shall descend to the heirs of the testator. ( 2 R. 8 . 57, § 4.) It is simply a devise of land or any interest therein that is condemned. The policy of law which prohibits aliens from holding title to land is to have the title in the hands of citizens, who owe allegiance to the government, and can be called upon to discharge the duties of citizenship. This policy is not violated by this provision of the will. The title vested in a citizen. Bradley has no estate whatever in the land. What he gets is a personal right, and the income of the real estate, when it comes to him, will come as personal property. It has been held in cases above cited that land may be devised to a citizen upon trust, to sell and pay over the proceeds to an alien cestui que trust. And for the same reason a citizen trustee may take the title to land, and rent it, and pay the net income to an alien.

The residuary devise to the Roman Catholic Little Sisters of the Poor of the city of Hew York is undoubtedly void, for the reason stated in the opinion of the General Term. If that society is unincorporated, it is incapable of taking title to real estate; if incorporated, the provision would be void under the

We are, therefore, of the opinion that the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.