In re the Probate of the Will of Morrison

Cohn, J. This contested probate proceeding was tried before a surrogate without a jury. The proponent is Frederick L. Chapman, who was named executor in the will. Objections to the probate were filed by Palmer Bennett Morrison, brother and sole distributee- of the decedent and by the Public Administrator of the County of New York. The objections raised issues involving the testamentary capacity of decedent and a claim of fraud and undue influence- allegedly practiced upon him by the proponent and one of decedent’s two stepsons. — 554 — Under the propounded writing, decedent’s brother was to receive the income of the residuary estate, which was placed in trust for that purpose, and upon his death the principal of the trust, together with accumulated income, was to be divided between Bichard Lamb and William Courtney Lamb, stepchildren of decedent, or their issue. The proponent and the Lamb brothers were named trustees. By the terms of two prior wills, executed July 28, 1943, and September 10, 1943, respectively, all of decedent’s property was devised and bequeathed to his brother, Palmer Bennett Morrison, who was designated as executor in each of these wills. After a trial the objections were upheld, the Court ruling that the decedent lacked testamentary capacity and that fraud and undue influence had been practiced upon him. From the decree entered thereon, this appeal is taken. The Surrogate upon conflicting evidence was called upon to decide whether the testator was of sound and disposing mind and memory when he executed the instrument offered for probate. The expression “ sound and disposing mind and memory ” has been frequently defined. It means that the mind of the testator “ as to its thinking and judging powers at the time of executing the instrument proposed for probate must be clear enough to be capable of interfering with the disposition of the estate by a prior will with some degree of judgment and discretion ” and that the testator must retain sufficient active memory to recollect “ without prompting'the necessary elements of the business to be transacted and to hold them a sufficient length of time to understand their relations to each other and to form some rational judgment in relation to them.” (Matter of Delmar, 243 N. Y. 7, 14.) The manner of determining questions of fact arising in a proceeding involving the validity of a will is no different from the means of resolving issues of fact in any other case. If there be evidence tending to show incompetency to make a will and the evidence is of such a character that different inferences may fairly and reasonably be drawn therefrom, the case must be decided as one of fact. (Hagan v. Sone, 174 N. Y. 317, 323; Matter of McCarthy, 269 App. Div. 145, 154; Matter of Barney, 185 App. Div. 782, 794.) Though the proponent presented substantial proof by reputable witnesses that the deceased was of sound and disposing mind and memory at the time of the execution of the propounded document, there was other evidence in the case from which it might fairly be inferred that the testator was not competent to make a will. The decedent, seventy-five years of age, had suf — 555 — fered a paralytic stroke on December 31, 1943, which rendered him helpless and compelled his confinement to a hospital under restraint from that day until his death in August, 1944. On the morning of the day that the will was executed, to wit, February 18, 1944, his conduct was irrational and at the time of its execution in the afternoon, as stated in the nurse’s notes contained in the hospital records, the deceased, though appearing to be rational, was mentally confused. The stroke from which he suffered affected decedent’s brain and while there- is evidence that he was rational for extended intervals, the mental confusion and irrational periods which followed from his infirmities were of constant and of almost daily occurrence up to the date of his death. This evidence ivas supplied in great measure by the hospital records and the disinterested testimony of decedent’s own nurse and his physician, who were witnesses for the proponent. The law is well settled that in a will contest the burden of proving testamentary capacity is upon the proponent. (Rollwagen v. Rollwagen, 63 1ST. Y. 504, 517; Delafield v. Parish, 25 N. Y. 9; Matter of Smith,, 180 App. Div. 669.) The Surrogate’s determination that on the date the propounded paper was handed to decedent for signature he was unable to comprehend the whole background of his relation to his brother and to his stepsons and that he was unable to comprehend any basis for change in his testamentary plans, in our view has sufficient basis in the record to support it. We do not, however, accept the conclusion of the court that the propounded will was procured through undue influence and fraud of the proponent and one of the deceased’s stepsons. The burden of proof upon the question of undue influence and fraud rests upon the contestants. (Matter of Anna, 248 N. Y. 421, 427.) This burden does not shift, but remains on the parties who assert its existence. (Matter of Kindberg, 207 N. Y. 220, 228-229.) The charge must be established by satisfactory affirmative evidence and may not be assumed to exist. (Matter of Schillinger, 258 N. Y. 186, 190,192; Matter of Ruef, 180 App. Div. 203, affd. 223 N. Y. 582; Matter of Henderson, 253 App. Div. 140, 145; Burke v. Burke, 193 App. Div. 801, 808.) The record, as we read it, does not establish the claim that Frederick L. Chapman, the proponent, or Richard Lamb, the stepson, practiced fraud or exercised improper influence and coercion over the decedent. In the absence of satisfactory proof, we may not assume that such a charge has been sustained by the contestants who have the burden on this issue. In our view the — 556 — evidence is insufficient to support the finding that the will propounded was procured through undue influence and fraud. The decree should be modified by eliminating the provision therein contained “ that the execution of said instrument was caused or procured by undue influence and fraud ” and by eliminating the provisions taxing costs and disbursements awarded to Palmer Bennett Morrison in the sum of $981.50 against Frederick L. Chapman personally, and costs and disbursements in the sum of $547 awarded to the Public Administrator of the County of New York against Frederick L. Chapman personally. The costs and disbursements so awarded shall be payable out of the estate of decedent, without a right of recoupment against Frederick L. Chapman. As so modified the decree should be affirmed, with costs of this appeal to the appellant payable out of the estate, and the proceeding remitted to the Surrogate of the County of New York for further action in accordance with this opinion.