In re the Probate of the Will of Smith

The probate of the instruments offered as the last will and testament, and a codicil thereto, of Owen Smith, deceased, is opposed on two grounds :

First. That said instruments were not the last will and testament of deceased because of want of proof of knowledge of the contents at the time of the execution thereof.

Second. Because of the mental condition of the deceased, it being claimed that he acted under a delusion as to the paternity of his son which rendered him incompetent to make a will affecting the interests of such son.

The evidence clearly shows that Owen Smith could neither

It clearly appears that the deceased exercised more than ordinary care concerning the safe keeping of his will, that he was a careful, prudent, calculating man in all his business transactions, and that at the time of the execution of each instrument he de- ' dared the one to be his last will and testament and the other a, codicil thereto.

It is not to be presumed that a man of prudence and care affixed bis mark to an instrument and made a declaration as to what that instrument was without knowledge of its contents. If any presumption is to be indulged it is that he knew the contents of the paper. All the requirements of the statute as to the execution of the instruments were fully complied with, and this court cannot add another, that because of his lack of education it must be made to appear that the instrument was read to him.

The chief reliance, however, of the contestant is upon his claim that at the time of the execution of the will and codicil his father was subject to a delusion as to legitimacy of contestant.

The proof shows that Owen Smith and Louisa, his wife, were married at Canton, N. Y., in 1850. That at the time they were in the employ of Minturn Harrison, in' whose employ they remained for about a year after marriage. They then commenced housekeeping upon a lot of fifty acres which he held under contract, the purchase price of which was only partially paid. About eighteen months after marriage there was born to them a son, Henry Smith, the contestant, their only child. The couple continued to reside on the lot before mentioned until July 27, 1892, when Owen died. ' Their possessions had gradually increasea until it had become a farm of 125 acres, under good cultivation and well stocked. In addition to this there was owned at the time of his death four or five hundred dollars in money or note. -

He was an industrious, careful, prudent man, his only fault aside from the alleged delusion being the indulgence at times to excess in the use of intoxicants.

At some time, it does hot appear clearly when, before fifteen or eighteen years ago, there were stories afloat in the neighborhood concerning the Smith family, the nature of which the evidence'does not fully disclose, which had come to the ears of Owen.

When Henry was about 7 or 8 years of age Owen came home from Canton intoxicated, and while in that condition informed his wife that he liad been told that Henry was not his child. This was repeated several times each year for almost thirty years, the language used being sometimes a positive assertion that Henry was not his child and that his wife had been untrue to him and had connection with other than himself.

He never did so except when intoxicated, and never in the presence of others. Six or seven years before his death he called upon the priest of his church asking advice as to hpw he should

By the will the contestant is disinherited, which he insists was the result of an insane delusion on the part of the deceased. In order to determine this question it is necessary to determine exactly what a delusion which incapacitates is. Bouvier defines a ■delusion as “ a diseased state of the mind in which pezsons believe things to exist which exist only, or in the degree they are conceived of only, in their own imaginations, with a persuasion so fixed and firm that- neither evidence nor argument can convince, them to the contrary.” Sir John Hichol, in the celebrated case of Dew v. Clark, 3 Ad., 79, says, “Whenever a patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and whenever at the same time, having once so conceived, he is incapable of being, or at least being poi’manently reasoned out of that conception, such a patient . is said to be under a delusion.” Judge Redfield, in bis treatise on wills, says-: “ A belief based upon evidence however slight is not delusion, which, rests on no evidence, but upon mere surmise.”

All the authorities to which I have had access agree that to constitute a delusion there must be a belief in the existence as a fact of somethizzg which does not exist; that such belief must be without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly implanted in the mind as to withstand such evidence and argument as would convince reasonable persons of its falsity.

Was Owen Smith the subject of such a delusion ? It is beyond question that he believed that the contestant was not his child, and that such belief was without foundation in fact. But was this belief the creature of his imagination? I cannot but believe from the evidence that “ the stories'” which, wez-e in circulation had much to do with this belief. The gossip of the neighborhood had lodged in his mind a poison, the venom of which, in his sober hours, he was able to restrain, but which, when reason was driven out by rum, exhibited itself in the charge of unchastity of his wife. It must be remembered that on” the first occasion in which she says he mentioned the matter to her he said he had heard ■ that Henz-y was not his child. The continued repetition of this charge for years in drunkenness produced such an effect upon his mind that he came at last to believe it, and at length he reveals his convictions to his priest.

Thus the element of a delusion, a belief existing without cause, other than the imagination of the deluded, is wanting.

The other element of a delusion, that it must be belief maintained in opposition to evidence and argument that would con-, vince the ordinary mind of its falsity is also wanting. So far as the evidence in this case goes, it does not appear that the wife whose chastity was impugned, nor the good pz'iest to whom he went for advice, made any attempt by argument or evidence to convince him of his ez-ror.

Upon all the evidence, I cannot escape the conclusion that at the time of the execution of the instruments offered for probate Owen Smith was not the subject of a delusion in regard to the paternity of the contestant, and the instruments must, therefore, be admitted to probate.