In re the Probate of the will of Portingall — 39 N.Y. St. Rep. 903

Majority

p. 903

In the Matter of the Probate of the will of Julia Portingall, Deceased.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Will—Undue influence.

Decedent requested her lawyer to draw a new will making a change in the guardian of her children, stating that it was according to the wish of a Catholic priest, who was present. W., the guardian under the former will, objected to her executing it on the ground of undue influence of the priest, and finally tore up the will. Decedent was removed from W.’s house and next day executed another will similar in its provisions, and denied any undue influence on the part of the priest, but stated she had been afraid of W. Seld, that there was no proof of undue influence and that the will was properly admitted to probate.

Appeal from decree of surrogate admitting the will in question to probate.

James D. Bell, for app’lt; M. F. McGoldrick, for resp't.

—Julia Portingall died in Brooklyn on the 26th of October, 1889, and left the will offered for probate which was executed on the 10th of October, 1889. She had executed a previous will on August 29, 1889. She left three minor children and both wills gave the property to her children. The only material change is in the testamentary guardian of the children. The first will named John Wallace as guardian and the second Mrs. Alice Tombs. The testatrix was a Catholic; her husband was a Protestant in his lifetime and he had been dead about six years before the will was made. The evidence is quite voluminous, but there is not the slightest proof of lack of capacity in the testatatrix. The great issue upon the probate was whether the will was executed under undue influence. Was the alteration of the guardian made by a refusal to administer the rites of the Catholic Church unless the change was made. Upon this point the evidence sustains the finding of the surrogate that it was not so made. Religious feeling entered in the change without doubt. The testatrix on the 9th of October, 1889, was living in the house of Mr. Wallace. On that day a Catholic priest, Father Hash, accompanied by a lawyer, Mr. McGroldrick, went to the Wallace house and after some hesitation was admitted.

The testatrix told McGroldrick that she wished to change her will, and used expressions that the change was according to the wish of Father Nash. She was told that any will must be of her own free will, and she then requested the will to be drawn. It was drawn and read over, and she said it was satisfactory. The will was read over to Mr. Wallace, and he noticed that it named no executors. A new will was drawn with the executors

p. 904

in the former will inserted. It was again read over, and the testatrix said it was' satisfactory. Wallace objected, and the priest was called in and an unpleasant scene occurred. The priest said Wallace was not a Catholic, and Wallace replied that he was not. The testatrix requested permission to sign the paper, and as she took the pen in her hand Wallace reached over and forcibly took the will from before her and tore it up. The testatrix was removed from Wallace’s to the house of a Mrs. Campbell. The next day a new will, like in its terms to the destroyed will, was executed. There were three witnesses to it. The testatrix stated that what she had said the day before about Father ¡Nash was by reason of threats made by Mr. Wallace, and that she wanted to execute this will. This remark was made in the presence of her attending physician, and subsequently to the witnesses to the will. She explained her motion for the change in guardianship and denied all influence over her by Father ¡Nash.

The proof of the transaction at the Wallace house is very contradictory. It is quite- convincing, however, upon a careful reading that there was too much anger to accept the testimony without scrutiny, and that upon the whole evidence there was no undue influence. The testatrix heard objections to the will, but she was firm in her resolution to execute the paper.

Upon the execution of the will there is no conflict.

The will was the act of a free and capable testatrix. She gave the reasons for her will and for the change in it, and stated that she had been afraid, not of the priest, but of the guardian of her children named in the first will on the 9th of October, 1889.

The decree of the surrogate should be, therefore, affirmed, with costs.

Dykman and Pratt, JJ., concur.