In re Ely's Estate

John B. Ely died on the 1st day of September, 1895. He left, him surviving, his widow, Phebe M. Ely, and two sons, Henry D. Ely and George C. Ely. Three papers, purporting to be his last will and testament and two codicils, have been propounded for probate. ■ The will bears date April 17, 1889; the first codicil, December 29, 1890; the second codicil, May 17, 1892. Objections to the probate of these instruments were filed by the widow and by the People’s Trust Company, as committee of the estate of George C. Ely, a lunatic, specifying the usual grounds. The objections filed by the widow also allege undue influence, but no evidence was offered tending to prove this allegation. I will first review the general features of the life of the testator in their chronological order, and the development of his habits both of mind and body.

In his youth and early manhood his habits were exemplary; his temperament joyous, and even boisterous. He was not addicted to the use of intoxicating stimulants, nor was the tone of his conversation either profane or vulgar. At this early period, some of his

I shall not undertake to review at length the testimony of the lay-witnesses called in behalf of the contestants. It certainly fully bears out the testimony of the physicians who attended Mr. Ely, and proves beyond question the existence of a variety of delusions-from the year 1879 down to the time of his death, in September, 1895, such as opening his distillery on Sunday, and complaining that the workmen were not at their occupation; imagining that he heard voices in the hall, there being no persons in the hall; that his son George was dying in a barrel in the yard; that his brother-in-law •was dead, and that he saw him hanging upon a tree near the house; facetiously biting off and eating the head of a mouse; imagining that he was being pursued by the military and United States revenue officers. We find him constantly carrying on conversation with imag

I will now take up the will itself. The first clause directs the payment of debts, funeral and testamentary expenses. The second •clause provides as follows:

“Second. Having heretofore given to my wife, Phebe M. Ely, a certain farm and premises at Bayport, in the town of Islip, Long Island, and a farm known as the ‘James Lott Farm,’ at Jamaica, Long Island, I give to my said wife all

my right, title, and interest in and to the shore front and strand and all other lands adjoining said premises at Bayport’ aforesaid, and the water rights appurtenant thereto, and I give to my said wife all the farming utensils, horses, .wagons, live stock of all kinds, furniture, and personal property of whatever character (except books and private papers), belonging to me, on either of said places at Bayport and Jamaica, aforesaid, at the time of my decease. I give to my said wife, also, two bonds of one thousand dollars each of the South Brooklyn Central Railroad Company, now in her possession, and ten shares of the capital stock of the Long Island Railroad Company, the certificate of which stands in her name.”

As a matter of fact, Mr. Ely’s farm at Bayport had already been sold and conveyed by him, together with all of the farming utensils appertaining thereto, in the spring, of 1886, three years before the will was signed by him. The farm had never been given by him to Mrs. Ely. From the sale of the farming utensils in 1886 there had been reserved “some little things he took a fancy to. I think there was a little harrow,—he reserved that for his garden,—and I think a little plough.” This was the extent of the farming utensils appertaining to the Bayport farm. Mrs. Ely had a house at Bayport, originally built upon an acre of ground given to her by Mr. Ely’s brother Henry. Mrs. Ely then bought the adjoining acre, and may have received the money with which to pay for it from her husband. Some of the witnesses testified that it was the usual custom among the people at Bayport to refer to Mrs. Ely’s property as “the little farm,” as contradistinguished from “Mr. Ely’s big farm”; but these witnesses almost invariably, in referring to Mrs. Ely’s property in the course of their testimony, referred to it either as “Mrs. Ely’s place” or “the little place.” At all events, a two-acre place would hardly be designated in a solemn and formal instrument like a will as “a farm.” As to the “James Lott Farm,” so called, Mrs. Ely acquired it in part by inheritance from her father’s estate, and in part by purchase from her co-devisees under her father’s will. The bonds and stock referred to in the same clause of the will were already in the possession of Mrs. Ely, and were her property. The third clause contains the only real provision in the will for his wife. It gives to the Long Island Loan & Trust Company 230 shares of the capital stock of the New York Central & Hudson Biver Bailroad Company, in trust to receive the dividends and income thereof, and pay the same to Mrs. Ely during her life, and upon her decease to pay them to his sons, Henry and George, one-half to each, during their respective lives, with remainder to their respective issue, or, in default of issue, to the survivor. The value of this stock in the year 1889 was shown to be $28,750. This gift for Mrs. Ely’s benefit was in lieu of dower. Then follow, in the fourth and fifth clauses, general legacies to various persons, varying in amounts from $100 to $1,000 each, amounting in the aggregate to $3,000. By the sixth clause he gives to Elijah Lee St. John $5,000 in trust for St. John’s children. Elijah Lee St. John was a first cousin of Mr. Ely.

“Seventh. I give to the Congregational Church of Simsbury, Connecticut, the sum of one thousand dollars, in trust to be invested, and so much of the income thereof as may be necessary to be applied to keep in order the burial plot in the burying ground adjacent to said church in which my parents and grandparents are interred; the residue of said income, if any, to be applied to the use of said church.”

The provisions of this will strike me as at least unusual and eccentric. The gift to his nephews, the children of Mrs. Adams, and their issue, amounts to at least three times as much as the benefits derived under the will by Mrs. Ely, his faithful and devoted wife. No reason appears in the testimony for the discrimination in favor of his son Henry as against George during an arbitrary period. It does not appear that George received any benefit from his father during his life, while it does appear that Henry did receive such benefits to the amount of about $20,000. Until Henry arrives at the age of 38, the benefits derived from Mr. Ely’s bounty by the children of his sister, Mrs. Adams, amount to nearly twice as much as those which his son George would enjoy.

I will now review the facts attending the execution of this document, and the testimony of the subscribing and other witnesses to its execution. The witnesses to the will were Edward White, an insurance broker, and John G. Jenkins, president of the First National Bank of Brooklyn. The will was executed in triplicate.

Edward White testifies that he knew Mr. Ely for about eight or ten years, and effected his insurance for him. Saw him once or twice a year. Recognizes his signature to the will, and remembers the occasion of his witnessing it. States that Mr. Ely, Mr. Jenkins, Mr. Coombs, and Mrs. Ely were present. Did not see Mr. Ely sign the will. Mr. Ely simply wanted Mr. White to acknowledge his sig

The testimony of Mr. Coombs may be now conveniently considered. Mr. Coombs, an attorney at law, attended upon the execution of the will. He had never seen Mr. Ely prior to that occasion. He went in company with Mr. Jenkins to the Wall House, where Mr. Ely was boarding. He subsequently went for Mr. White, as he remembers, at the suggestion of Mr. Ely, to request him to become a witness to the will. He testifies that Mr. Ely was garrulous, profane, vulgar, and obscene; that Ely signed in the presence of the witnesses; and that he (Mr. Coombs) asked all the formal questions pertaining to the execution of the will. In this respect his recollection differs from that of the witness White, who does not recollect that Mr. Coombs said anything while he was present, but thinks that Mr. Ely did all the talking. Mr. Coombs also thinks that Mrs. Ely was present. (Upon this point both witnesses are clearly in error. The evidence that she was in Bayport at this time is most convincing.) Mr. Coombs testifies that in his opinion the acts and conversation of Mr. Ely were rational. It does not appear that the wills were read to the testator, and he was not asked if he had read them. They were in his possession when Mr. Coombs called.

John G-. Jenkins, the other subscribing witness, testifies that he had no distinct recollection of the time or place of the execution of the will. He does remember, however, the fact of its execution, and of his signing as a witness. Mr. Jenkins had known Mr. Ely intimately from boyhood, and since 1886 had charge of his property and investments, in connection with Mrs. Ely. Since that time he had directed all of his business transactions and dictated his investments, with but two exceptions, both of which resulted unfortunately. Mr. Jenkins was in the habit of seeing Mr. Ely personally at this period about four times a year. He states with great positiveness that at that time Mr. Ely was, in his opinion, insane. He says: “During that month, I would not let him get behind me. Q. .What do you mean by that? A. I don’t think my life would be safe, unless I had my eyes on him, at any time for the last fifteen years.”

This evidence of the subscribing witnesses is unsatisfactory, and leaves the question of Mr. Ely’s testamentary capacity open to serious doubt. Mr. Jenkins, the only witness to the execution of this will who had any intimate acquaintance with Mr. Ely, expresses in the strongest possible terms his conviction that he was insane at that time. The acts and conversations testified to by Mr. Coombs,

The first codicil bears date December 29, 1890. By this codicil the testator revokes the appointment of Jeffrey O. Phelps as executor, directs that his executors be required to give bonds in the sum of $5,000 each, and directs that his will and codicil be probated in Simsbury, Conn. The proponents did not offer any evidence whatsoever in support of this codicil. The subscribing witnesses were John G-. Jenkins and W. A. Field. Mr. Jenkins’ opinion as to the mental condition of Mr. Ely at this time has already been sufficiently indicated. The contestants called the other subscribing witness, Mr. Field, in their own behalf. Mr. Field testifies that he is cashier of the First National Bank of Brooklyn. That upon the occasion of his witnessing this first codicil “his manner was peculiar. Did not like the manner in which he spoke of things in general. He talked in rather an erratic manner. His conversations were erratic. His manner was what you might call boisterous. He talked loud, and used a few profane words. He was speaking in a reminiscent sort of manner. Spoke of different people,—different things past.” Mr. Field’s opinion was that “Mr. Ely was not of sound mind. His manner of speech and talk, etc., were such as to make me think he was of unsound mind. He talked in a wild and erratic manner. He talked in a low tone; then in a very loud tone. Jerked his words out. Occasionally used profane words.” The impression which the conversation, manner, and tones of voice made upon this witness was such that he “wished he had not come into the house.” It thus appears that the first codicil certainly could not have been admitted to probate upon the testimony of the subscribing witnesses alone.

The second codicil is dated May 17, 1892. It revokes the appointment of Jeffrey O. Phelps as executor, and appoints John G-. Jenkins as executor in his place. The subscribing witnesses to this codicil were Frank Jenkins and William S. Irish. The testimony of those witnesses is substantially the same, except as to the conclusions which they reached concerning- the testator’s sanity. The witness Frank Jenkins is a broker, and a son of John G-. Jenkins. To summarize the testimony of the witnesses of the second codicil: Mr. Jenkins and Mr. Irish called at Mr. Ely’s room at about 8:15 a. m., and remained about 15 minutes. Mr. Jenkins brought the codicil with him. It was not read to or by Mr. Ely, and he had no conversation whatever with either of the witnesses during their entire stay, except to answer affirmatively Mr. Jenkins’ formal, questions on the execution of the codicil. Mrs. Ely was absent from the room nearly all the time. In her absence Mr. Ely was walking up or down the room, apparently mad or angry, and was mumbling to himself and swearing. Neither of the witnesses had any personal acquaintance with Mr. Ely, and had never previously exchanged a word with him, but had seen him before. Mr. Jenkins had seen him twice; once 17 or 18 years previously, and once 2 or 3 years previously. On the latter occasion he perceived a very marked change in Mr. Ely, and at that time he was swearing in the office of his attorney in a voice so

The proponents called and examined at great length several witnesses, including the parents of some of the beneficiaries named in the will; farm hands who had at various times been employed by Mr. Ely upon his Bayport farm before he sold it in 1888; one neighbor of Mr. Ely’s at Báyport; the attorney for the purchaser of a valuable parcel of real property from Mr. Ely, purchased and conveyed in the spring of the year 1889; and some others. I shall not undertake to discuss the testimony of all these witnesses. They described various occasions upon which they had met Mr. Ely, and with more or less detail testified to what occurred on those occasions; and all characterized his actions and the conversations testified to by them as rational. The large majority of these witnesses had seen Mr. Ely very seldom subsequent to the year 1886. Everything to which they testified might well have occurred, and still have been perfectly consistent with an insane condition of Mr. Ely. I should, perhaps, touch upon the testimony of Mr. Maddox, the attorney for Frank Seaman in the purchase of the “Distillery Property,” so called, from Mr. Ely. Mr. Maddox had occasion to call upon Mr. Ely only once in connection with that transaction. He took to him a contract of sale for his signature, prepared by Mr. Maddox in accordance with the terms of an option to purchase which his client, Mr. Seaman, had previously procured from Mr. Ely. Mr. Ely refused to sign it until he had submitted it to his attorney. “Q. Did you observe anything in the conversation or acts of Mr. Ely at that time which was unusual, or out of the way, for any business man? A. Nothing, save his boisterous conduct, possibly. Q. In what respect? A. Loud voice. It was difficult to get him to agree with me first.” Mr. Maddox states his opinion that the acts and conversations upon this occasion were “certainly rational.” He had previously seen Mr. Ely on occasions when he thought he was intoxicated, and on those occasions he thought that Ely behaved in anything but a rational manner. Subsequently, in 1893, Mr. Maddox was one of the commissioners appointed by the supreme court upon an inquiry as to the sanity of Mr. Ely, in which proceeding Mr. Ely was adjudged to be insane. On the other hand, Mr. Seaman, Mr. Maddox’s client, who purchased the distillery property from Mr. Ely for $106,000, had frequent interviews with Mr. Ely during his stay at the Wall House from October, 1888, to April, 1889, and had known him intimately for many years, visited at his house often, had been in his employ in the distillery business, and had bought out his business some years before the real estate transaction. Mr. Seaman, after uetailing many conversations and acts, including those relating to the real-estate transaction in 1889, characterizes them as irrational. He excuses his purchase of the real estate from an insane man by the fact that before he entered upon the negotiations he consulted

I cannot pass by without comment the documentary evidence offered by the proponents, consisting of letters, receipts, etc. It may well be that these letters and documents are entirely rational, or even that they exhibit a high degree of shrewdness and intelligence; and yet these facts are by no means inconsistent with a condition of general insanity of Mr. Ely. Insanity is a positive and affirmative disease, to which extremely intelligent persons are subject, and insane persons may possess a high degree of intelligence and rationality with reference to a great variety of subjects. I have no doubt that Mr. Ely thought that he had made a will, and that he had practically excluded his wife from any benefits thereunder, and that he had made a discrimination in favor of his son Henry against his son George, and that he had conferred benefits upon his nephews, the children of his sister, Mrs. Adams, very greatly exceeding the benefits which he bestowed upon his wife. I have equally little doubt that at the time he executed this fantastical will and codicils he was generally insane, and the victim of a variety of delusions. In fact, I am of the opinion that he should have been restrained and kept in an institution for the treatment of insane persons from 1883 down to the time of his death, as I believe that at that time and ever afterwards he was irresponsible, and suffering from alcoholic dementia.

The rules of law applicable to the conclusion which I have reached upon the facts are well settled. They are, however, frequently confused with other principles which are applicable to an entirely different state of facts, and on account of this confusion I shall briefly express my view of the lay/ by which the facts of this case must be controlled. The statute provides: “All persons, except idiots, persons of unsound mind, and infants, may devise their real estate,” etc. 2 Rev. St. p. 56, § 1, as amended by Laws 1867, c. 782, § 3; 3 Birdseye’s St. 3342. “Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing. 2 Rev. St. p. 60, § 21, as amended by Laws 1867, c. 782, § 4; 3 Birdseye’s St. 3342. The construction which has been given to those or entirely similar provisions by the English courts has been adopted by the courts of this state. It is unquestionably now the settled law of both England and the state of New York that a monomaniac may make a valid will, provided his monomania has not had, and is not capable of having, any influence upon his testamentary dispositions. This conclusion was reached by the courts of England after many years of discussion, and after several decisions had been rendered, of which some held such wills to be valid, and others held them to be invalid. 1 Jarm. Wills (5th Ed.) p. 78, § 38; Browne, Insan. p. 252 et seq.,

“In law, the only standard as to mental capacity In all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as those terms are used in their fixed legal meaning.”

An exception is always made of idiots and lunatics. It is assumed that such persons are incompetent. This principle is recognized and reiterated in Society v. Hopper, 33 N. Y. 619 . At page 624, Denio, J., says:

“Setting aside cases of dementia, or loss of mind and intellect, the true test of insanity is mental delusions. If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion; and delusion in that sense is insanity. Such a person is essentially mad or insane on those subjects, though on other subjects he may reason, act, and speak like a sensible man. Dew v. Clark, 3 Addams, Ecc. 79.”

Again, - at page 630:

“In referring to the evidence on the part of the contestants, I have omitted a great deal which is related by them showing the folly, fatuity, and incoherence manifested by the deceased upon various occasions, and upon different subjects. They afford some ground for imputing to the deceased general insanity. But, as he was an habitual drinker, and was frequently intoxicated, it is impossible to say whether what is deposed to was the result of

temporary intoxication or of settled mania. I have, therefore, in coming to a conclusion, relied wholly upon the proof of delusion upon the two subjects intimately connected with the testamentary disposition of his property.”

In Van Wyck v. Brasher, 81 N. Y. 260 , Earl, J., at page 262, says as follows:

“A drunkard is not incompetent, like an idiot or one generally insane. He is simply incompetent upon proof that at the time of the act challenged his understanding was clouded, or his reason dethroned, by actual intoxication. Peck v. Cary, 27 N. Y. 9 ; Gardner v. Gardner, 22 Wend. 526 . Here there was no proof of general unsoundness of mind, or of general insanity, and none whatever that the grantee used any artifice, undue influence, or fraud to procure the conveyance.”

My attention has been called by one of the counsel for the proponents to the cases of In re Halbert’s Will, 15 Misc. Rep. 308 , 37 N. Y. Supp. 757 , and In re Johnson’s Will, 7 Misc. Rep. 220 , 27 N. Y. Supp. 649 ; and I entirely agree with the conclusions reached in those cases. In the Halbert Case there is no suggestion of any condition of general insanity of the testatrix. Hie only issue was whether or not, at the time of the execution of the will, she was intoxicated. It was decided by the surrogate as a matter of fact that she was not intoxicated at that time. So, also, in the Johnson Case, the only issue was as to the drunkenness of the testator at the time of the execution of the will. He had suffered from delirium tremens, and some months after the execution of the will had been an inmate of an inebriates’ home. Here again it was decided, as matter of fact, that he was not intoxicated on the occasion of his executing his will; and that, although “his mental powers were probably never robust, and had been weakened by his excesses,” they had not become so far impaired as to deprive him of testamentary capacity. There was no contention that a generally insane condition of mind existed, caused by an excessive indulgence in drink. At page 223, 7 Misc. Rep., and page 649, 27 N. Y. Supp., Fitzgerald, S., says:

“Drunkenness may so becloud the mind as to make it incapable of doing an intelligent act. But the disability ends when the exciting cause is removed. In this it differs from insanity, which, once shown to exist, is presumed to continue until there is proof that intelligence and reason have asserted themselves.”

The issue in the case under consideration is, not whether Mr. Ely’s mind was so clouded from the immediate and temporary effects of alcoholic stimulants when he signed the will as to deprive him of that very small amount of intelligence necessary for a valid testamentary disposition, but whether or not he was at that time suffering from a condition of general insanity as a result of his excessive indulgence in drink over a period of many years. The preponderance of evidence, and that of the witnesses who knew the testator longest and best, and who are entirely disinterested, irresistibly leads me to the conclusion that the testator was generally unsound, and that he was generally insane, at the time of the execution of the will and codicils. Having reached the conclusion that he was insane as a matter of fact, the conclusion of law is inevitable that he was incompetent to make a will.

Probate denied.