In re Schober's Will

[1] The petition states that the decedent was a resident of and died in the state of Pennsylvania possessed of certain personal property, to wit, debts owing to him by a resident of the county of Bronx and state of New York. These allegations, not being controverted, must be accepted as true (Code Civ. Proc. § 2546), and this court therefore has jurisdiction to entertain this proceeding (Code Civ. Proc. § 2517). The decedent also died seised of real estate situated in the-state of New York. The disputed document is alleged to have been executed on the 5th day of June, 1914, and the decedent died on June 13, 1914. By its terms the residue of the estate remaining after the payment of his debts and funeral expenses is devised and bequeathed to a sister of the decedent, if she be living at the time of

[2] As the alleged will contains testamentary dispositions of real property, the validity and effect of such testamentary dispositions are regulated by the laws of this state, without regard to the residence of the decedent; and as it also contains testamentary dispositions of personalty, the validity and effect of said testamentary dispositions are regulated by the laws of the state of Pennsylvania, where the decedent was a resident at the time of his death. Decedent Estate Law, § 47 (Laws 1909, c. 18, constituting Consol. Laws, c. 13) § 47. It therefore becomes necessary in deciding the matter to consider, not only the laws of our own state, but also those of the state of the decedent’s residence.

From the petition it would appear that the decedent left him surviving a widow, two sisters, two nieces, and a nephew. The widow filed objections in the usual form, but containing, in addition, an allegation that the heirs at law and next of kin, as set forth in the petition, are not the heirs at law and next of kin of the decedent, but that a person therein named and the widow are such heirs at law and next of kin, and that the said person thus named should be made a party. The latter was thereupon brought into the proceeding by a supplemental citation issued to her. She thereafter appeared by counsel, and upon the hearing it was contended that she was a daughter of the decedent, being the issue of the marriage between him and his surviving widow. All of the parties are therefore before the court. The situation presented, regarding it from the standpoint of the contestant, is that of "a testator who, by his alleged last will and testament, makes no provision for his wife and child.

I am satisfied from the evidence produced before me that the legal formalities of execution prescribed by the statutes of the state of New York and of the state of Pennsylvania, in which latter state the document is alleged to have been executed, were complied with. Decedent Estate Law, supra, § 21; Purdon’s Digest (13th Ed.) tit. “Wills.”

[3-5] The objection to the effect that the subscription and publication of the disputed document was procured by fraud or undue influence is not sustained by the evidence. Mere opportunity to exercise undue influence does not of itself justify a conclusion that it was exercised. Cudney v. Cudney, 68 N. Y. 148 ; Post v. Mason, 91 N. Y. 539 , 43 Am. Rep. 689 ; Logan’s Estate, 195 Pa. 282 , 45 Atl. 729 ; McNitt’s Estate, 229 Pa. 71 , 78 Atl. 32 , citing Tyson’s Estate, 223 Pa. 596 , 72 Atl. 1065 . It cannot be presumed, but must be shown to have existed, either by direct evidence, which from its nature is not often possible, or by circumstances of such a character as to reasonably lead to the conclusion that it was present. Loder v. Whelpley, 111 N. Y. 239 , 18 N. E. 874 ; Rollwagen v. Rollwagen, 63 N. Y. 504 ; Matter of Richardson, 137 App. Div. 103 , 122 N. Y. Supp. 83 ; Caughey v. Bridenbaugh, 208 Pa. 414 , 57 Atl. 821 ; Phillip’s Estate, 244 Pa. 44 , 90 Atl. 457 ; Matter of Campbell, 136 N. Y. Supp. 1086 , 1104.. The, influence exerted by kindness to the testator, or by feel

It imports coercion. Matter of Van Ness, 78 Misc. Rep. 592 , 139 N. Y. Supp. 485 , and cases cited. It is “an affirmative assault on the validity of a will, and the burden of proof does not shift, but remains on the party who asserts its existence.” Matter of Kindberg, 207 N. Y. 220 , 229, 100 N. E. 789 , and cases cited. While I have been unable to find a decision of the highest court of appellate jurisdiction in the state of Pennsylvania .which lays down a rule as definite and broad as that enunciated in Matter of Kindberg, I believe that the general trend of decisions in that state justifies the conclusion that, under the facts and circumstances surrounding the execution of the disputed document in this case, the burden of proving undue influence was upon the contestant. Douglass Estate, 162 Pa. 567 , 29 Atl. 715 ; Messner v. Elliott, 184 Pa. 41 , 39 Atl. 46 . No evidence tending to sustain this particular objection was introduced by the contestant, so that the weight of evidence upon this proposition was clearly with the proponent.

[6] There remains for consideration, then, only the question whether the alleged testator had testamentary capacity when he signed the document and published and declared it as required by law. The burden of proving the competency of the alleged testator in this state rests upon the proponent. Code Civ. Proc. § 2614; Decedent Estate Law, supra, §§ 10, 15; Matter of Goodwin, 95 App. Div. 183 , 88 N. Y. Supp. 734 ; Matter of Schreiber, 112 App. Div. 495 , 98 N. Y. Supp. 483 ; Matter of Lissauer, 5 N. Y. Supp. 260 ; Matter of Gedney, 142 N. Y. Supp. 157 ; Rollwagen.v. Rollwagen, 63 N. Y. 504 ; Matter of Cottrell, 95 N. Y. 329 , *336; Matter of Martin, 98 N. Y. 193 , 196. This being the most burdensome rule of law that can be imposed upon the proponent on the issue of testamentary capacity, it is unnecessary to discuss the law of Pennsylvania on this subject, unless the conclusion is arrived at that the proponent has failed to sustain the burden, required by the laws of this state.

[7] The fact that the testator failed to provide for his wife and child might lay the instrument open to the criticism that it is unnatural in its terms, but in my opinion the fact that such provision was not made does not of necessity lead to this conclusion. The testimony shows that the decedent left' his wife, under circumstances to which reference will hereafter be made, on the 17th of July, 1911, and journeyed from Stony Brook, where they were then residing, to the city of Philadelphia, where he took up his abode with one of his sisters; that he remained there for a period of about ten months to one year, and then .went to live with his other sister, the alleged beneficiary, with whom he resided up to the time of his death. At the time that he left his wife he had quarreled with her, and never saw her again,

It further appears that the daughter who survived him was not brought up by him and his wife, but spent her childhood and a part of her youth with a family in Philadelphia, by whose family name she was known and, so far as she could recollect, had never seen her father until she was 27 years of age. She also states that she first remembers seeing her mother when she (the daughter) was 18 years old, and never saw her again until she was 27 years of age. In the years 1903 and 1904 she resided with her father and mother at Stony Brook, but with the exception of that period, seems not to have lived with either of them. During the time that she resided with her parents, as stated, it would appear from letters in evidence and from other testimony that the relations existing between her and the decedent were most pleasant. It is difficult, however, to assume that under the circumstances above detailed there existed between her and her parents that intimate personal relationship and dependence which a closer association between them during her childhood and youth would have tended to foster. She is not to be blamed for this; on the contrary, she merits sympathy, and yet it weakens the charge that the document which contains no provisions for her is unnatural in its terms.

[8] It is not for the surrogate to speculate why no provision for her was made, nor to declare the instrument invalid as the will of the decedent, because the court may think that the decedent did not pay due regard to the claims of kindred. He was disposing of his property, and had a right to dispose of it as it pleased him, and so long as he observed the formalities of execution required by law, was of sufficient mental capacity to do so, and free from undue influence, fraud, and restraint, his wishes must be respected and his testamentary disposition given effect. Dobie v. Armstrong, 160 N. Y. 584 , 593, 55 N. E. 302 ; Smith v. Keller, 205 N. Y. 39 , 98 N. E. 214 ; Cudney v. Cudney, 68 N. Y. 148 ; Logan’s Estate, 195 Pa. 282 , 45 Atl. 729 ; Morgan’s Estate, 219 Pa. 355 , 68 Atl. 953 . During the last years of his life he was very fond of the niece mentioned in the propounded document and lived with the aged sister who is the beneficiary in the alleged will. Considering all of the facts to which reference has thus been briefly made, it does not appear to me that the alleged disposition which he made of his property was under the circumstances such an unusual and unnatural testamentary disposition as to arouse a suspicion that the testator was not of sound mind.

The testimony of the two subscribing witnesses would tend to show

[9] A number of witnesses were produced by the contestant, some of whom testified to acts and conversations of the decedent which they say impressed them as being irrational. None of the incidents which they narrate were at or near the date of the execution of the" vwill and they are of such a character as to be as compatible with rationality as with irrationality. Other witnesses also called by the contestant give testimony which tends to show that the decedent, at the times they saw him, was rational. I do not consider the testimony tending to show irrationality, and above referred to, of great weight as against the testimony of the subscribing witnesses showing his condition upon the day when the document was executed. The fact that the decedent may have been eccentric, slovenly in dress and given to peculiarities of speech and manner are not sufficient to disqualify him from making a testamentary disposition of his property. Hart-well v. McMaster, 4 Redf. 389; Matter of Murphy, 41 App. Div. 153 , 58 N. Y. Supp. 450 ; Schouler, Wills & Adm. § 149; Morgan’s Estate, 219 Pa. 355 , 68 Atl. 953 .

[10] There were two physicians called by the contestant, however, whose testimony merits more careful consideration. It appears that these two witnesses, in the year 1911, were commissioners in lunacy,- and in June or July of that year attended at the home of the decedent and examined him as to his mental condition. Upon the first of such-

The testimony of these physicians as to the condition of the decedent in June or July, 1911, is not conclusive as to his condition in June, 1914, when the document under consideration is alleged to have been executed (Matter of Kiedaisch, 12 N. Y. Supp. 255 , 260; McNitt’s Estate, 229 Pa. 71 , 78 Atl. 32 ), and I consider the testimony of the subscribing witnesses of greater weight. Even if there had been an adjudication of insanity and an order for a commitment in the year 1911, still I believe that under the authorities these facts would only have been prima facie evidence of incompetency and could be rebutted by proof of the execution of the disputed document during a lucid interval. Wadsworth v. Sharpsteen, 8 N. Y. 388 , 399, 59 Am. Dec. 499 ; Jarman, Wills (6th Ed.) *37; Lewis v. Jones, 50 Barb. 645 ; Matter of Coe, 47 App. Div. 177 , 62 N. Y. Supp. 376 ; Harden v. Hays, 9 Pa. 151 ; Titlow v. Titlow, 54 Pa. 216 , 93 Am. Dec. 691 ; Schouler, Wills & Adm. § 81.

After the second visit of two of the physicians, it appears that the contestant advised the decedent that some one was coming to take him to an asylum, and her testimony is that, notwithstanding the fact that the physicians had arrived at the conclusion that the decedent was' insane, she nevertheless gave him $30, so that he could leave before he was taken away. Eight or nine months after the time the objectant claims to have ascertained that this decedent was insane, she accepted the fruits of a settlement made on her behalf with this alleged lunatic, whereby she received a deed from him of his share of some real estate and an assignment of his interest in a mortgage, and assigned to him her interest in two mortgages. It is difficult to reconcile such action with a belief on her part that at that time the decedent whose deed and assignment she accepted was insane.

The evidence shows that, between the time when he left his wife in 1911 and the time of his death in 1914, he made frequent trips from Philadelphia to New York, sometimes alone, sometimes in company with the niece mentioned in his will, and some of the witnesses for the contestant who saw him. in New York when he was on one of his trips to the city in the year 1913 had no' criticism to make of his conversation and demeanor, except that he appeared to have been drinking and was nervous.

The document will therefore be admitted to probate.

Probate granted.