Creely v. Ostrander

The Surrogate. The decedent died without leaving issue, and his will is contested by a half-sister and several nieces and nephews. In the year 1845 Mr. Engle executed a will, wherein, after providing for his wife, he gave several legacies, from one to five hundred dollars,-among his relations and connections, and then devised the remainder of his estate in trust for the establishment of a free infant school. The will now propounded for proof, and which was executed the day of his death, gives to his wife’s sister the use of his dwelling-house and furniture, and to several relatives of his wife, $3500; to the Society for the Relief of Indigent Females, $2500; to the Greene Street Methodist Church, $500, for the benefit of the poor; and the residue of his estate, except a house and lot on Broadway reserved for “ future disposition,” in trust during two lives, for the benefit of some fifteen relatives on his maternal side. At the expiration of the term the estate is to be divided among his heirs-at-law and [111] next of kin who shall then he living, in the same manner and in the same proportions as if the decedent had died intestate. The decease of the testator’s wife, and the advice he received as to the invalidity of the first will, probably led to the revocation of that instrument, and the execution of a new will. The contestation on the ground of incapacity has, I think, entirely failed. Although in his eighty-fourth year of age, and enfeebled by disease, his faculties seem to have been unimpaired. The witnesses who testified to the contrary indicate no facts which satisfactorily shake this conclusion; while, on the other hand, there is evidence of the highest character in favor of his testamentary capacity. Mr. Lord, who was called in for the purpose of receiving instructions to draft the will, on the 25 th of February, 1854, had a long interview with him, in the course of which ample opportunity for judging of his mental vigor was afforded. We have the details of this conference in memoranda made by him at the time, from which it appears that the testator made a long statement of his property, and gave a list of his relatives and friends. The memorandum closes with these words: “ His mind and memory seemed wholly unimpaired.” Mr. Lord says he was “ careful to look into his entire capacity to make a will,” and “ the result was I had no hesitation in going on and drawing the old man’s will, whatever it might have been, being perfectly satisfied he possessed the requisite capacity.” It is to be observed that Mr. Lord advised the testator against the scheme of the charity contained in the first will, thinking, in consequence of the character of the proposed administration of it, that its object would not be well attained, and recommended him to dispose of his property among those having expectations from him, and those who had taken care of him.” The matter was not then decided upon, and a future meeting appointed having failed, owing to Mr. Lord’s sickness, other counsel was called in. The will propounded for probate was drawn by William Lowerre, and executed by the testator March 15,1854, the same day that he died. Mr. Lowerre had several interviews [112] with the testator in the course of preparing the instrument, at the first of which the decedent requested his opinion as to the validity of the charitable scheme proposed in the old will. He states that at the second interview he received his instructions orally from the testator in person, no one being present except Hr. Weaver, who occasionally communicated between them, while the counsel was engaged in making memoranda at the table. He says the testator named all the parties mentioned in the will and the amount of the legacies, of his own volition, and without suggestion, unless he may have been aided in remembering the names of some of his relatives. The interview lasted about two hours. At that time Mr. lowerre understood the decedent as assenting to a suggestion he made that the property should be given absolutely to the beneficiaries without the intervention of a trust, and the will was prepared conformably to that idea. The following day Mr. Lowerre visited him again, and read the will. The decedent then objected to the bequests in an absolute form, and insisted upon a trust for two lives. The instrument being thus altered, was presented to him the ensuing day for execution. It was read over to the deceased, deliberately, paragraph by paragraph, and as each section was read, he was asked if he understood it, and if it was correct.' He assented to each one except the third and fourth, which, from some misapprehension of the draftsman, had not been drawn in conformity to the original instructions. After the reading, John Shepard, who was present, stated that his name had been omitted among the relatives. Mr. Lowerre thought not, but it turning out on examination that his name was omitted, the testator was asked as to his intention, and he replied that Shepard should have an equal share. The will was then duly executed. These circumstances show origination of the bequests with the testator himself, mental activity, freedom, and determination of volition, and though there may have been suggestion, there is not a trace of improper dealing or undue influence. It may be as well to observe that the. day the will was executed, the testator was [113] up and walking about his room. In the morning he requested Mr. Summers to have his bank book written up. This having been done, and the book returned to him, he went over all the checks one by one, and tested the accuracy of his account. After the will was signed he took his tea, and “ conversed as sensibly as ever.” He died half past eleven that night. It seems to me that the only ground upon which the probate can be contested with any degree of plausibility, is the omission of the name of his half-sister, Mrs. McLean, among the legatees. If his memory was good, the omission was intentional or accidental. The mistake with regard to Shepard may perhaps raise a doubt whether similar errors might not have occurred in respect to other relatives. But as Shepard’s name appeared in another portion of the will, and even the accurate draftsman thought it had a place in the residuary clause, it is not clear that the omission was attributable to a loss of memory. Where there was so much general activity of mind and memory in other respects, it requires something more than mere conjecture to presume a failure of memory in regard to parties who think they ought to have had a place in the will. It is not unworthy of note, also, that the testator’s half-sister lived at a distance, and there is no other evidence of intercourse between them than a few letters, which are more profuse in expressions of affection than of any other substantial token. Hor is it to be forgotten that the Broadway property, a very valuable portion of his estate, is excepted from the operation of the will, and his sister not only inherits a portion there, but at the expiration of the trust estate as to the other property, her descendants will take a share in the residue in remainder, which by the terms of the devise will pass to his heirs-at-law and next of kin then living in the same manner as if he had died intestate. In view of the very satisfactory evidence as to the testator’s capacity, it is not for me to say that he did not esteem the interest which his sister and her children would take under these provisions, adequate, and that he omitted [114] her name from forgetfulness or accident. But even on the latter hypothesis, no court would be justified in setting aside the will, for that must be the effect of attempting to rectify this supposed error. We cannot insert anything in the instrument ; that must stand as it now is, or else the entire instrument must fall. The jurisdiction of the Surrogate in respect to the correction of mistakes is by the necessary operation of the Statute of Wills merely negative, and limited to refusing probate to a will or part of a will. (Burger vs. Hill, 1 Brad. R., 374). I do not mean to say that a will cannot be refused probate when it is clearly established that omissions have been made which, as the will stands, defeat entirely the testator’s intention. It will be time enough to consider that proposition when a case arises calling for it. But it would seem to be quite obvious that an instrument which so far as it goes is conformable to the decedent’s wishes, cannot be defeated because there may be grounds for suspecting a minor casual omission. Under all the circumstances I have no hesitation in pronouncing for the will, and it must be admitted to probate accordingly.