In re Harris' Will

Samuel Harris died at the town of Marlborough, in this county, April 25, 1895, leaving him surviving a son, William Harris, and two granddaughters, May I. Ellis and Edith H. Ellis, daughters of a deceased daughter. A petition was filed in this court on the 10th day of June, 1895, asking for probate of a will, by the said William Harris, the executor named therein. Citations were duly issued, returnable July 2,1895. Upon the petition of the two infants, Elias M. Ellis, their father, was appointed their special guardian to look after their interests in this proceeding, and he filed objections to the probate of the will in their behalf. Much evidence was taken, and many witnesses examined. The contest was principally upon the testamentary capacity of the deceased, and as to whether he was under undue influence or constraint at the time the paper offered as his will was executed. The proof shows that the will was properly executed in accordance with the laws of this state, and there has been no serious contention over that fact. The will bears date April 18, 1895, and devises and bequeaths all the property of the deceased to his son, William Harris,

Although an old man, it appears to be conceded that he was entirely competent to execute a will or do any other business up until the time of the accident referred to. It is claimed upon, the part of the contestants that the injury and shock to the system of the deceased by this accident was such as to render him incapable mentally of executing a will. There is no doubt but that the deceased was greatly injured; that he suffered much pain, and was, as they all describe him, a very sick man, after this accident. It is not shown, however, by any evidence, that his mind was affected or impaired by the accident which occurred, up to, at least, the time of the execution of the will. On the contrary, the testimony of the subscribing witnesses, and of the physician and of such other witnesses who had any knowledge of the situation, is that .he was competent to transact business at that time. He sent his son, William, for Mr. Rusk, to come to his house, on the morning of the 18th,' to draw his will. This Mr. Rusk did, receiving instructions from the deceased as to how that will should be drawn, and then drew it in accordance therewith, and it was properly executed. 3sfo other person was in the room at the time Mr. Rusk received Ms instructions. He drew the paper, read it over to the deceased, and the deceased took it, and read it himself. For greater caution, or for some reason not disclosed, Mr. Rusk called his attention twice during the preparation and execution of this will to the fact that he had not provided therein for his granddaughters. The deceased said that he knew that, and that he wanted to will all to Willie; that the will was right, and the way he wanted it.

It was held in the case of Horn v. Pullman, 72 N. Y. 269 , that:

“There is no presumption against a will because made by a man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body. Such a rule would be dangerous in the extreme, and the law wisely sus

tains testamentary dispositions made by persons of impaired mental and bodily powers, provided the will is the free act of the testator, and he has sufficient intélligence to comprehend the condition of his property, and the scope, meaning, and effect of the provisions of the will.”

I hold the testator to have been shown competent to make a will at the time the paper in question was executed.

The testimony has also been very largely directed on the part of the contestants towards showing that the deceased was under the influence of his son, William, or the family of his son, and that, therefore, the will was not the free act and deed of the deceased. The testator seems to have been a man of remarkable vitality, and of quite considerable executive capacity. He had conducted these two establishments, one at Marlborough and one at Ithaca, both in his own name, and under his immediate direction. His will was law at Ithaca and at Marlborough. The store was conducted under his supervision and direction, and with his means. His son-in-law, Ellis, whose wife died some years ago, and his family, had been supported from the proceeds of that store. His son, William, and his family had been for many years supported from the proceeds of the farm at Marlborough, with, perhaps, some help from the store at Ithaca, or from other means of the deceased. The witnesses all aver that he was a strong-minded and capable man, remarkably reticent in his talk with others concerning his own business affairs. He impressed himself upon those who came in contact with him, and who were produced at this trial, as being a capable man, not requiring, or even submitting to, outside influence or dictation. The son, William, on the contrary, seems to have been a man of easy disposition, content to take life largely as it came to him, satisfied with his father’s administration of his own business, and not disposed to interfere therewith. It is no reason for setting aside a will that the deceased has discriminated against or disinherited those who would seem to be the natural objects of his bounty. “A testator has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will; and he may, if he chooses, exclude his children, or divide his estate among them unequally. The question in all such cases is, was the will the free act of a competent testator?” Horn v. Pullman, supra. “To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by deception, fraud, or other improper means, that the instrument is not really the will of the testator. * * * It is not for us to judge of the justice of the provisions of the will, or of the reasons which the testator had for discriminating. * * * However partial or unjust testator may seem to have been in his testamentary dispositions, if the instrument propounded is actually his will, effect must be given to it.” Cudney v. Cudney, 68 N. Y. 148 . “The case, then, is one where the testatrix had testamentary

Much stress is laid by the contestants upon the fact that no will was made, or at least produced, by deceased, until after this injury was received. It is, of course, impossible to show that no prior will had been made, but none is produced. This, however, is not a singular circumstance, as many people of advanced age seem to have an objection to making their wills until some sudden accident or serious sickness calls their attention to the unsettled state of their affairs if death should call them. “And why? Because he thinks himself immortal. All men think all men mortal but themselves.” Many letters have been produced showing numerous remittances from deceased to both his son-in-law and his granddaughters. While these amounts are not large, it may well be that the deceased concluded that that branch of his family had had sufficient of his means, and his remaining property should go to his son, William, and his family. We may not enter into the mind of the deceased, to ascertain his motives, or to criticise them. He executed his will according to the formalities of the statute. He was apparently of sound mind, and has not been shown to be under any restraint. The will will be admitted to probate, and a decree may be handed up to that effect.

Probate granted.