In re the Probate of the Will of Merriam — 42 N.Y. St. Rep. 619

Majority

p. 619

In the Matter of the Probate of the Will of William W. Merriam, Deceased.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

1. Will—Execution.

Where the attestation clause is full and complete and the will was drawn and witnessed by one who was a lawyer and accustomed to the requirements of the execution of wills, his testimony that all the requirements were complied with is sufficient to show due execution, notwithstanding the other witness, who was a law student and paid little attention to the matter, testifies to the contrary.

3. Same-Capacity op testator.

Testator was eccentric; he was a college graduate and had been a teacher; he was in the habit of malting wills in favor of school girls to whom he took a fancy; his memory was defective at times, but not unusually so, and he could make clever public addresses; he disinherited his near relations but gave his reasons for doing so. and there was never a time wlmn he did not understand his affairs or know the effect of his acts. Held, that he was not incapable of making a will.

p. 620

Appeal from decree of the surrogate’s court of Suffolk county ■ admitting the paper in question to probate. The will in question gives all the testator’s estate to the government of the United. States.

Timothy M. Griffing and George D. Robinson, for app’lts; Jesse Johnson, for the United States; George F. Stachpole, for ex’r.

The deceased was a resident of Brooklyn, Suffolk county, and died there in January, 1889, at a little over-fifty years of age. He left a will which was admitted to probate by the surrogate of Suffolk county, executed in May, 1888. The next of kin and heirs at law appeal from the decree of the surrogate and allege that the will was not executed according to the-requirements of the statute and that the testator was not of sound mind and memory and therefore incapable of making a will. Tire will was executed by the testator in the presence of B. K. Payne. Payne drew the will upon the instruction of the testator. The attestation clause is full and complete, embodying all the statute-requirements. Mr. Payne testifies that the will was either read over by the testator or by the witness and that testator declared it. to be his last will and requested Mr. Payne and a Mr. Lennon tobe witnesses ; that the testator signed the instrument in their presence and that the witnesses signed as such in his presence and in the presence of each other. Lennon testifies that he did not see the testator sign the paper; that he did not sign as an attesting. witness at testator’s request; but at the request of Payne and in another room from that in which testator was at the time. The surrogate’s finding that the will was properly executed is supported by the evidence. Payne was a lawyer, used and accustomed to the requirements of the execution of wills. The attestation clause states the facts contrary to Lennon’s recollection. Lennon was a law student; had no charge of the execution of the will, and has signed a certificate which is at war with his testimony. Lennon knew of the requirements of the law as to the execution of wills, and signed the attestation clause, as he says, without reading it; that the execution was of no concern to him whether it was done right or wrong, and that some six years thereafter, and after testator’s death, he seems first to recall the fact that, the will was not properly executed. The surrogate’s finding is upheld on this point of the formal execution of the will.

The evidence as to the mental condition of the testator shows, him to have been very eccentric. He was a graduate of, Williams College, and had been a teacher in the common schools subsequent, to leaving college. He was a man of large property and managed it unaided and without suffering waste or depreciation so long as-he lived. In many respects he was childish in his tastes and occupation. He was in the habit of making wills. He would take-a childish fancy to some young girl and make a will in her favor. These legatees were, it seems, éasilv supplanted by a new fancy or by some sudden change on the part of testator, and the-result would be a new will. The testator was subject to complete changes in his political beliefs. He was capable of writing an

p. 621

address called “happy” or “clever” by those who heard it; he could make political addresses. There was a lack of discipline in his school. His memory was at times somewhat defective, but not unusually so. The evidence fails to show that there ever was a time when he did not understand his affairs, and when he did not know the effects of his acts. He gave his reason always why he did not want his next of kin to take. He had neither father, mother, wife or child. He was dissatisfied with his sister and step-mother in respect to the distribution of his father’s will.

He invented the plan of giving his property to the general government, and directed his lawyer to make his intent effective by will. His sister had plenty of money and the testator knew that they did not need his property. The greatest peculiarity in the deceased, after all, was that he felt called on to teach, which is quite unusual to a man who had so large a property. His girl legatees were generally, if not always, school girls of tender years, and his selection was made without any other motive than a wish to attach them to him practically as a child of his own.

The evidence therefore fails to show the testator incapable of making a will. The will was freely made, without suggestion and without restraint. It was made by one who knew the condition of his property and the scope, meaning and effect of his will, and the decree should therefore be affirmed, with costs. Horn v. Pullman, 72 N. Y., 270 ; Delafield v. Parish, 25 id., 9.

Dykman and Pratt, JJ., concur.