In re Proving the Last Will & Testament of Harold — 20 N.Y. St. Rep. 895

Majority

p. 895

In the Matter of Proving the Last Will and Testament of Bridget Harold, Deceased.

(Supreme Court, General Term,, Second Department,

Filed December 10, 1888.)

Headnote

Will—Pbobate of—Undue influence—Evidence.

The testatrix, a single woman, devised the bulk of her estate to the wife and son of her employer, in whose family she had lived as a domestic for nearly twenty-nine years, by whom she was well treated, and occupied a place somewhat above an ordinary servant. It appeared that when the will was made, which was fourteen years before her death, the scrivener was procured at her request, and she saw him alone, and gave him directions about its provisions, and that the only relative she had was a niece for whom she manifested no special attachment. There was no collusion shown between the attesting witnesses (one of whom was the scrivener) nor influence by any member of the devisee’s family. Held, that the decree of the surrogate holding the will invalid for undue influence should be reversed and the will admitted to probate.

Appeal from the final decree and judgment of the surrogate of Queens county, refusing to admit to probate the last will and testament of the above named decedent.

J. M. & T. B. Seaman, for app’lt; Daniel Brown, for resp’t.

This is an appeal from a decree of the surrogate of Queens county, refusing to admit the last will and testament of Bridget Harold to probate in his court.

The deceased woman was a domestic in the family of Isaac N. Willets at the time of her death, in November, 1887, and she had been such for nearly twenty-nine years. Bhe commenced service in his family in December, 1858, and resided there continuously until her death, and on the twenty-seventh day of February, 1873, she made her will, and left the same with Mrs. Mary 0. Willets, the wife of her employer, for safe keeping,- and it remained among the papers of Mr. Willets until the death of the testatrix.

The formalities of the statute required for the due execution of the will were all complied with, and the clause of attestation at the termination of the instrument is full and complete.

The surrogate rejected the instrument because he believed the testatrix to be under restraint and undue influence at the time of its execution, and the same was .procured by the undue influence of the chief beneficiaries therein.

The will gave the bulk of the estate of the testratrix to Mary C. Willets and Edwin Willets, the wife and son of her employes.

The only next of kin of the deceased was Mrs. Mary Ann. Banta, who was a niece, and who resided also in. Queens county.

p. 896

The deceased was a single woman, and seems to have-been well treated in the family which she served, and occupied a place somewhat above that of an ordinary servant.

She desired to make a- will, and the attendance of the-scrivener for that purpose was procured by her request, and she saw him alone and gave him directions for drawing the same, and when it was executed, the attendance of a disinterested and independent witness was obtained, and no-fraud or collusion between the person who drew the will and became one of the subscribing witnesses and the other-witness became apparent on the hearing, and no reflection was made against their character or reputation. Neither was there any sign of influence from any member of the-family of her employer, but the will seems to have been the result of the free and uncontrolled intention and desire-of the testatrix.

Neither do we find that an implication of undue influence would be justified or legitimately inferred from the relation which existed between the testatrix and the chief objects; of her bounty. But even if such an inference could be-drawn, the facts disclosed upon the trial before the surrogate were sufficient to destroy and overcome the same.

The testratrix lived about fourteen years after the exe • cution of her will, and if any temporary ascendency or domination over her had been obtained, she had ample-time for reflection and escape. The fact that the will was. left so long after its execution unchanged and undisturbed is cumulative evidence in favor of the deliberate purpose of the testatrix in its execution.

Neither do we find it unnatural for the testatrix to bestow her. little property upon the woman with whom she was so long associated and from whom she had received kind treatment, instead of a niece whom she seldom saw,, and towards whom she hadunanifested no attachment.

We think the decree appealed from should be reversed, and the will admitted to probate.

Pratt, J., concurs; Barnard, P. J., dissents.

Footnotes

[1] Reversing 19 N Y. State Rep . 236.