In re Fox's Estate

The testatrix died at about 11 o’clock on January 12, 1892, leaving no real estate, but personal property, as alleged in the petition, of the value of about $600, and leaving no husband or next of kin, and no heirs. Her former husband, Martin Fox, died intestate about 17 years before, leaving, by his first wife, two sons, residing in Ohio, and one daughter, said Honora Fox, the contestant, residing in Ja'mestown, N. T. Warren D. Shaw and wife conveyed to Martin and Bridget Fox, for the consideration of $150, by deed dated May 14, 1863, about one-quarter of an acre of land in two adjoining village lots on the Warren road, so called, leading from the then village of Jamestown to Warren, Pa.; and said Bridget Fox, after the death of her husband, Martin Fox, sold and conveyed the same land on November 18, 1890, to John Wood and Martha, his wife, for the consideration of $300, reserving, however, the use and possession of the north half of said premises, and also subject to the payment by said Wood of the unpaid taxes thereon, same being a part of the consideration in addition to the $300, and the amount of the said taxes was not proved. The north half of said premises of which the use was reserved to the said Bridget Fox during her life had a small house or shanty, 12 by 16 feet, thereon, of little value, with two rooms, which she occupied at the time when said deed was made, and up to the time of her death, on January 12, 1892. Said Warren D. Shaw and wife conveyed to said Bridget Fox another village lot, adjoining the above two lots, on April 20,1880, when she was a single woman, unmarried; and after her marriage to Martin Fox, and after his death, she conveyed the same to John Davidson, who was a witness to her alleged will here contested, for $600 paid down. The decedent signed the instrument propounded as her last will, by making her mark, at about 4 o’clock in the afternoon of the same day she died,—being about seven hours before her death, —and by such will, by its terms, she devised and bequeathed to the Reverend Richard Coyle, rector of the Catholic church in the city of Jamestown, all her real and personal estate, subject to the payment of her debts and burial expenses, and appointed said Rev. Richard Coyle sole executor thereof, and revoking all former wills by her made; and the same was witnessed by James I. Fowler, Esq.,

I hold and decide that under the common-law rule applicable to this case, when land is conveyed to husband and wife, they do not take as tenants in common or as joint tenants, but each becomes seised of the entirety per tout, and not per my, and that upon the death of either the whole descends to the survivor. Bertles v. Nunan, 92 N. Y. 152 , overruling Meeker v. Wright, 76 N. Y. 262 ; Zorntlein v. Bram, 100 N. Y. 12 , 2 N. E. 388 . I hold that upon the death of Martin Fox, intestate, his wife, Bridget, became seised in. fee of absolute title to the entire premises.

James I. Fowler, attorney for the petitioner, and one of the witnesses to the will of January 12,1892, testified that he drew the will in question; that he went down to the little house of the decedent in the afternoon of the day the will was drawn; that he went into the room, up to the bed, and asked Mrs. Fox if she knew him, and she reached out her hand, and gave an expression of “Yes,” shook hands; that he asked her, he thought, if she wanted her will made; that she said Wes;” that he asked her to whom she wanted her property left; that he called in Mr. Davidson, and then asked her again, and she said, “Father Coyle;” that he read over to her the will which he had drawn, and asked her if that was right; that she replied that it was; that he then "asked her, he thought, if he should sign her name, that he knew she could not write, and she said, “Yes;” that he sat at the table, and wrote her name, and told her to sign by making her mark, which she did; that he then asked her if she acknowledged that to be her last will and testament, to which she replied, Wes;” that he then asked her if she desired Mr. Davidson and himself to act as witnesses; that he and the other witness,

“The expression of the old lady to me was that all she wanted was to carry her through; that ‘a divil a one of them’ had ever darkened her

doors. I didn’t ask her who or what. I thought the old lady knew what she was saying. On the sale of the land, subsequently made, I think she handed me the papers she received, or some notes, and asked me to put them in my safe, and keep them for her; also, what Mr. Davidson had, which I still hold.”

Witness further testified, on cross-examination by Mr. Sessions, that he did not think, considering the age of Mrs. Fox, that in the sale to Mr. Wood she reserved one-half the life use of the property; that, according to the rule of probabilities, it would affect the value much, and that the land had been sold several times for taxes; and that a party who came to him said that parties had been trying to sell him tax titles.

John Davidson, the other subscribing witness to the will dated January 12,1892, testified that he had resided opposite to Mrs. Fox’s house for 13 years, and had known her all that time; that he saw her make her mark to the will presented, dated January 12th, and was present when she answered, as Mr. Fowler asked her to whom she desired her property to go, and she said, “Father Coyle,” and she acknowledged that to be her last will and testament, and he was present when it was read over by Mr. Fowler, and when she asked him to subscribe as a witness; that he subscribed his name as a subscribing witness at her request, and she acknowledged that to be her last will and testament; that the will appeared then as it did the day it was drawn, and that he was present when Fowler asked her if he should take the will, and she said she wanted him to keep it; that he thought she was of sound mind at the time it was signed, and that she knew what she was doing, and what was being done; that he should say that she was about 80 years old; that he went down after Mr. Fowler the morning of the day the will was drawn,—went from his own house; that he had not been at Mrs. Fox’s house that morning, and that he did not know her condition, and went along with Mr. Fowler to the house; that he had not seen her that day at the time; he told Mr. Fowler that morning that the old lady wanted to will her property to Father Coyle, that she wanted him (witness) to come over to the house before she was taken so sick, and handed him a little money she had in a box, and said, “I want you to keep that,” and that he told a woman who was in the house to see what was in the box, and that he said to Mrs. Fox, “What do you wTant to do with the money you have?” and she said, “To Father Coyle, and her bed to Mrs. Callahan.” Witness testified that up to the day the will was made he had never had any more conversation with her, except at the house, while she was in bed, in the presence of Thomas Conway and Mrs. Donlon; that he went to see the old lady, just to see how she was, and that he was not called in to take care of her; that he and Conway went in together, and that he did not talk to the old lady then about what she should do with her property; that he did not see Mrs. Higgins there; that Mrs. Donlon was there all the time he was there; that he asked Mrs. Fox if she knew him, and she said, “Yes;” that this was the day she-died, between 1 and 2 in the afternoon; that she knew him, and she said, “How’s Mrs. Davidson?” and that he said she was getting bet

Jamestown, N. Y., Dec. 12, 1880.

Chautauqua County National Bank.

Pay to the order of Mrs. Fox..................................or bearer fifty .............................................................dollars, and interest at six per cent., for value received.

[Signed] John Davidson.

The witness further testified that Mrs. Fox owned the lot she lived on, and that there was a house on it; that she sold it in November, 1890, to John Wood; that the lot was of the same width as his lot; that she lived on that lot in a shanty 12 by 16 feet, with two rooms in it, one a small bedroom; that she had no other real property besides that lot, and that he did not know what Wood gave for it; that the money she received for it was in Mr. Fowler’s hands; that there were back taxes to be paid on the lot; and that Mr. Fowler had the money. On the redirect examination by Mr. Fowler, witness tes

Only the two above-named witnesses, Messrs. Fowler and Davidson, were sworn on part of the proponent, and their evidence appears above substantially as given. The will was written by Mr. Fowler before seeing Mrs. Fox, or consulting her about it in any way. All the authority he had in drawing the will was received from Davidson. It appears affirmatively that Davidson had no authority from Mrs. Fox or any one else to instruct Mr. Fowler to insert in the will, as drawn, the name of Father Coyle as executor; and there is no evidence in the case tending to show that Mrs. Fox ever gave authority to Davidson to instruct Mr. Fowler to insert in the will, as drawn by him, the name of Father Coyle as sole legatee. He certainly had no such authority from Father Coyle, who told Davidson that he would have nothing to do with the property, and if he had he would give it to Honora, the daughter. Such authority could not be fairly claimed from the conversation between Davidson and Mrs. Fox at her house, before she was taken so sick, on the occasion in which she sent for him to come over there, when she handed him some little money she kept in a box, and said to him, “I want you to keep that,” and when he told a lady that was in the house to come and see what was in the box; and Davidson further stated, “1 said, ‘What do you want to do with your money you have?’ and she said, ‘To Father Coyle, and her bed to Mrs. Callahan.’ ” There was no evidence of the amount of money in the box. Mrs. Fox evidently intended to have Davidson pay that money to Father Coyle, and evidently Davidson so understood it, because no other money was mentioned; and, if he understood differently, why did he not instruct Mr. Fowler to insert in the will “the bed to Mrs. Callahan”?

The evidence of Davidson, given without objection, about having paid the check for $50, dated December 12,1880, then held by the decedent, and also about his alleged settlement with her for $298.25 loaned to him by the decedent from the balance of $600 purchase price of the land she sold to him in 1880, would not be admissible

It appeared that when Mr. Fowler went to the house of Mrs. Fox, on the forenoon of the day she died, with the will he had previously drawn as directed by Mr. Davidson, he was immediately followed by John Wood, holding a pen and ink in his hand, and who purchased one of the three lots of her in November, 1890, for $300, accompanied by Davidson and Thomas Conway; that Mr. Fowler, after his talk with Margaret Donlon, when leaving met the three above-named persons at the fence in front of the house, where a short conversation was held between them, and all went away except Conway, who was a brother-in-law of Mrs. Fox, who returned and went into the house, and remained there until between 3 and 4 o’clock in the afternoon, going out and in but once or twice, and without making his business known. Mrs. Fox in the meantime was lying on the bed, apparently unconscious, and could not take any nourishment, not even a teaspoonful, and she had been in that condition about nine hours previously, and continued so until between 3 and 4 o’clock in the afternoon, when she called for a drink of water, and Conway, being in the adjoining room, and hearing her call for water, went into the little bedroom, and asked her if she knew him; that Mrs. Fox tried to talk, and made some motion, and Conway kept asking her if she knew him; that after a while she said, “Yes;” that he went over across the street for Mr. Davidson, who came back with him; that they then asked Mrs. Fox if she knew them; that they kept at her until finally she talked to them, and then Conway went after Mr. Fowler, and Davidson said nothing more to Bridget, but remained in the kitchen while Conway was gone; that after a while Conway returned with Mr. Fowler, and they went into the bedroom. The evidence of the two subscribing witnesses to the alleged will as to what then occurred is fully stated above.

C. W. Creal and Margaret Donlon, who were witnesses to the first will, and John Donlon, husband of Margaret Donlon, were the only persons who testified on the part of the contestant. Mary Higgins, who was also a witness to the first will, and who acted as a nurse of Mrs. Fox during her last sickness, was not called to testify. She was employed as nurse by the Helping-Hand Society, so called. It appeared that Margaret Donlon was there for 9 or 10 days during Bridget’s sickness, doing the work in the house, and assisting in the care of Mrs. Fox, and that she was requested to go there by Thomas Conway, who told her that he had heard that Bridget was very sick. It appeared from the evidence on part of the contestant that the decedent had in her possession at the time of her death, among her papers, aside from the above check for $50, 14 tax receipts signed by tax collectors, dated at Jamestown, N. Y., from 1865 to 1880, both inclusive, amounting to $46.14, of which 7 were receipted as paid by Martin Fox, and 7 by “Martin Fox’s heirs,” of which Honora was one, and his two sons in Ohio

It should be borne in mind that Mr. Fowler, who drafted the second will of the decedent, and was a witness to it, and who had acted for many years as her friend and adviser, and in whose integrity, learning, and ability she justly had great confidence, and who had always known Bridget as a remarkably strong woman, both in body and mind, but who had not seen her during her last and only severe illness, and had had no knowledge about her illness before going there on the morning of the 12th of January, 1892, except what he had learned from Margaret Donlon, John Davidson, Thomas Conway, and John Wood, as he testifies, went away from the house that morning not satisfied that the old lady was incompetent to make her will; that he drew the will that morning, before going to see her, from what others had told him; that he saw her for only a few minutes at the time the will was signed, in the afternoon; that nothing was said by her at that time about her property, or about having made a will, 20 hours previously, entirely different in its provisions from the one here offered for probate,—that it would seem to appear that Mr. Fowler could have had hardly sufficient opportunity to judge correctly her capacity to make a will.

The evidence on part of the contestant shows, I think, that Mrs. Fox was in a far better condition, physically and mentally, when she made her first will than when, 20 hours later, she made her second one. She sent by Margaret Donlon, who was taking care of her at the time, to see Mr. Creal to come and draw her will. He was sent for because he lived on the second street from her residence, and nearer than Mr. Fowler. That he came, and the other witnesses were in the little bedroom, and when the will had been drawn she raised herself from the pillows, and sat up straight, with the pillows behind her, and with no one to support her, and entered into conversation, and stated that she wanted her will drawn in their presence, and, in answer to the questions put to her by Mr. Creal, stated that she wanted to give her property to Honora Fox, who was a daughter of her deceased husband, Martin Fox, and that she wanted Margaret Donlon, who was a niece of her said deceased husband, to be the executrix thereof; that she wanted Mr. Creal, Margaret Donlon, and Mary Higgins to be witnesses to her will. That after the will had been prepared, and she was sitting up in bed, she took the pen in her hand, and wrote her name to it, Margaret Donlon guiding her hand while doing so, at her request. Mr. Creal testified that Mrs. Fox appeared very bright in her mind at the time, he thought, for one suffering so much pain as she was; that he asked her where the pain was, and she put her hand to her left side; that he thought she was of sound mind and memory, and competent to make a will; that Mrs. Donlon gave her a cup of milk when she first sat up in bed, before she signed the will; that she declared it to be her last will and testament, in the presence of witness and in presence of Margaret Donlon and Mary Higgins, and requested them to sign it in her presence and in the presence of each other; that, when he first went into the room where Bridget Fox

Margaret Donlon, a witness to this alleged will, and the executor named therein, testified: That she was the wife of John Donlon, of the age of 40 years; had known Bridget Fox for 23 years; and that she had always lived in the same place where she died, and was at her house often during the time she knew her. That she lived near her, and was well acquainted with her, and had been to her house a good deal during that time. That she knew Martin Fox very well during five years, until he died. That the relations between Martin Fox and Bridget Fox were always pleasant. That she knew Honora Fox during the time she lived on Warren street. That she knew she lived with them and made it her home there until she went to the asylum. That up to that time Honora Fox was a strong, healthy girl, and worked out for people in the city. That Martin and Bridget Fox were at witness’ house in Busti during the year he died, going on 18 years ago. That witness scolded Martin for putting Nora in the asylum, and Mr. Fox told witness, in his wife’s presence, that he wanted witness to take care of Nora, and that after his death he wanted Nora to have what belonged to him; that Bridget was always a good wife to him, and after she was through with it he wanted all to go to Nora. Bridget said in reply that she was satisfied with that. Bridget used to come out and see witness, and said that she was well satisfied with that. That witness was the first person called when Bridget was taken sick. That Conway told her that she was very sick, and that he would be glad to have her go over. That this was 9 or 10 days before she died. That witness stayed right along every day, and nights, between times, doing the best she could, and that Bridget was very glad to have her. That Mary Higgins was there as a nurse. That Father Coyle was there the Sunday night before Bridget died, being the Sunday night before the first will was drawn, and that he was in the bedroom with her, alone, a few minutes, with the door shut. Witness testified about Mr. Fowler, Davidson, and Conway being there on Tuesday, January 12th, in the morning; that Mr. Fowler asked witness how Bridget was; that she told him that she had been dying since 7 o’clock that morning; that during that day the old lady could not talk at all,—could not take any nourishment, even a teaspoonful. She further testified that the old lady never spoke a word after Mr. Fowler and the others went away; that she died at half past 11 o’clock that night, and she took no nourishment; that she had taken no nourishment after 7 o’clock on the morning of the day she died.

An important and controlling question arises in this case as to whether the alleged will of the decedent accords with her duties and obligations to her stepdaughter, Honora Fox, and with her former and often-declared intentions, while rational, to make Honora, at her death, the sole beneficiary of her bounty. The evidence in this case is all in one direction, in favor of the contestant, as are also the authorities in harmony therewith and with good sense. In re McCarthy (Sup.) 20 N. Y. Supp. 581 ; In re Raynor (Sup.) 18 N. Y. Supp. 426 . The above two cases are very similar, in the facts stated, to this. In re Coop (Surr.) 6 N. Y. Supp. 664 ; In re Budlong (Sup.) 7 N. Y. Supp. 289 . The evidence shows that Bridget Fox was remarkable for her great vitality; that she was strong in both body and mind up to within 10 days of her death. There is no evidence tending to show that she had ever been sick a day prior thereto, but that, like Holmes’ famous “One Hoss Shay,” she, in the end, went to pieces very suddenly. The Reverend Richard Coyle did not appear personally at any time in the proceedings for probate before the surrogate. Seven days after the death of the decedent, he signed a petition for the probate of her alleged will, doubtless in good faith, and under the advice of counsel.

I hold and decide that Bridget Fox, at the time of signing said alleged will, was not of sound and disposing mind; that her signature thereto was procured by the undue influence of John Davidson and Thomas Conway, and not by any undue influence on part of Rev. Richard Coyle, as alleged in the contestant’s answer; and I direct decree herein denying probate of such alleged will, with such reasonable costs to the contestant, including fees of stenographer, as may be allowed by the surrogate, on notice of adjustment to the proponent, and also such reasonable costs to the proponent as may be allowed, in the discretion of the surrogate, upon like notice to contestant; such costs payable out of the estate.