p. 491In the Matter of the Probate of the Will of Christian Ziegler, Deceased.(Supreme Court, General Term, Second Department,Headnote
Will—Testamentary capacity—-Delusion.Due execution of tlie will was proved, and testator was shown to be a man of good judgment and testamentary capacity, the only objection thereto being that he said that F., to whom he left nothing, was not his son. It was shown that he had acknowledged F. as his son, but at the time of making his last will said he had heard that F. had threatened to make trouble after his death, and that he was not related to him in any way. Held, that such acknowledgment was consistent with F.’s being an adopted son, and that testator was not shown to be deluded as to the fact of his having a son,
Appeal by Francis C. Ziegler and Lillie Ziegler from decree of the surrogate of Queens county admitting the will to probate.
Ernest Hall, for Francis C. Ziegler, app’lt; E. J. Knauer, special guardian for Lillie Ziegler, app’lt; E. B. & W. J. Amend (E. I. Spink and R. M. Martin, of counsel), for resp’ts.
—Christian Ziegler died in September, 1889, in Queens county. He made a will in May, 1889, which was admitted to probate by the'surrogate of Queens county, and this appeal is brought from the order sustaining the will.. The testator left the bulk of his property to three nieces of his wife, who had been brought up and treated as adopted daughters by him. The deceased left a son, his only child and heir at law, to whom he gave nothing by the will. The proponents make an issue as to
p. 492the fact whether this son was in fact the son of testator, or had been taken from a charitable institute in infancy. The testator’swill does not depend upon this question, but upon his being of sound mind and memory and free from restraint when he executed the paper. Judged by the rules applicable to wills, the papers-prepared were executed by the deceased in the presence of three witnesses, and there is not the slightest reason to doubt the execution of the will according to legal form and by a person capable-of making a will. The history of the life of deceased, ás given by the testimony, does not show any support to a charge of incapacity, other than is implied from the evidence given tending to show that testator said he had no son. The testator had made-a will in favor of the proponents in 1883, and he then called them his children.
The present will was only made to sever certain portions of the-real estate so that each child should hold in severalty. The case is a very strong one to establish that the contestant, Francis C. Ziegler, was not the real son of the testator, but was adopted. The proof of the acknowledgment of him as a son is entirely consistent, with his being an adopted child. The declaration of the testator at. the execution of the first will that the nieces were called his children,, and at the execution of the last will that he had heard that Frank had threatened to make trouble after the testator’s death, and that he was not related to him in any way, are conclusive to me that. Frank C. Ziegler was an adopted son. The testator was a man of good judgment, and his life was so sane in all other respects that it would be a violent conclusion in view of the evidence in the case that he was ignorant or deluded as to the fact of his having a son. . - - .
The testator was capable of making a will, and the order should be affirmed, with costs.
Cullen, J., concurs.