In re the Revocation of the Probate of the Will of Liney

Majority

p. 700

In the Matter of the Revocation of the Probate of the Will of Robert Liney, deceased.

(Surrogate’s Court, Monroe County,

Filed September 20, 1890.)

Headnote

Wills—Undue influence.

Decedent was a feeble, illiterate, intemperate and credulous old man and easily influenced and controlled by others. He had made two wills in favor of his son and grandchildren. While at the house of a friend he made another will, giving the bulk of the estate to the friend and his wife. Held, that under such circumstances the duty devolved upon such beneficiaries to prove that the will was the outcome of decedent’s own wishes, and was not procured by improper influence on their part, and in the absence of such proof the presumption of undue influence or fraud arises.

Proceedings to revoke probate of will. '

W. .4. Armstrong, for ex’rs; John H. Iiopkins, for contestants.

This. decedent was an illiterate, intemperate, credulous old man, past eighty years of age. He was feeble both in body and mind, subject to certain delusions, and, while probably of sound mind in a strictly legal sense, was so feeble in will and intellect as to' be easily influenced and controlled by other people.

During,the last half year of his life he had executed three wills, the last of which is now the subject of controversy. By the first two wills he had given to his son and grandchildren nearly all his property, and in making such wills had shown much readiness to need the suggestions of outsiders as to the form of his testamentary dispositions and the appointment of executors. Within two weeks after the date of the second will, and while temporarily sojourning in the house of a friend, the third will is executed by him, giving the great bulk of his estate to that friend and his wife.

No satisfactory reason appears for the sudden change of purpose in this feeble old man. Upon the persons claiming to benefit by a will máde under circumstances such as surrounded this transaction, by an aged and feeble-minded man, the law devolves the duty of proving that the instrument was the voluntary outcome, of the decedent's own wishes, and was not procured by the improper influence of the beneficiaries. Unless this is satisfactorily shown the presumption arises that the will is the result of undue influence, or fraud, and it should not be allowed to stand. Marx v. McGlynn, 88 N. Y., 357 ; Mowry v. Silber, 2 Bradf., 133 ; Will of Clausmann, 24 W. Dig., 226.

Such fraud or undue influence is not usually open and visible to the draughtsman of the will, or to the attesting witnesses, but is commonly exercised behind the scene. Mowry v. Silber, supra, 149 .

I think the facts and circumstances.of this case warrant the in- • ference that this will was procured by the undue influence of the Murrays, the chief beneficiaries under it, and that the probate should therefore be revoked.

There may be a decree accordingly on three days’ notice.