In re the Two Contested Wills of Ehminne

Varnum, S. This case was tried before my predecessor, Mr. Surrogate Arnold, but was not decided by him, and has since, after an extended oral argument, been resubmitted to me. [407] After a careful consideration of the voluminous testimony and the elaborate briefs of the counsel, I find that the earlier will, that of October 15, 1885, was duly executed in accordance with the statutory requirements and is entitled to admission to probate, unless subsequently revoked. In the consideration of the later will propounded for probate, that of April 24, 1896, many circumstances seem to demand careful investigation and •consideration. An aged German woman about seventy years •old, comparatively ignorant, without known relatives, who had been seriously ill for some time, is said to have executed this will about one hour before her death from pleurisy and pneumonia, when weak and feeble in body, almost in extremis, and prevented from collapse and aroused into an intelligence only .through hypodermic injections of brandy, strychnine and musk. She was too weak to write her name and could only make a -cross when her hand was guided. The will in question was totally at variance with one made by her eleven years before, when in perfect health, ignored the beneficiary in the former will, whom she had therein described as her “ so-called sister,” named the lawyer who drew the will, an entire stranger to decedent, as executor, gave a legacy of $1,000 to a washerwoman, with whom it appeared she had but slight acquaintance, but who was then nursing her, and the balance of her estate, some $19,000, to a female doctor of somewhat questionable character and standing who lived in the same tenement, a stranger in blood and almost, in acquaintance, a person as to whom it appears by the evidence the decedent had expressed her fear and •dislike. It does not appear that there had been any real estrangement between the decedent and her “ so-called sister,” the beneficiary under the former will, and it seems from the testimony that the latter and her husband had rendered many •services and kindnesses to the decedent, while on the other hand no special obligations on the part of the decedent to any of the beneficiaries in the later appear from the evidence. There are [408] other singular and suspicious circumstances revealed by the testimony to which it is not necessary here to refer. Two medical experts called by the contestant have expressed opinion that the decedent could not have been mentally competent to execute the will at the time when it was made. The burden of proof is upon the proponents of affirmatively proving testamentary capacity. Rollwagen v. Rollwagen, 63 N. Y. 504, 517; Kingsley v. Blanchard, 66 Barb. 317, 322; Matter of Nolte, 10 Misc. 608; Delafield v. Parish, 25 N. Y. 9. See, also, Matter of Barbineau, 27 Misc. 417, and cases cited. In view, moreover, of the peculiar and suspicious circumstances referred to, I am of opinion that the burden of proof has shifted upon the proponents to repel presumptions of fraud and undue influence. Matter of Budlong, 126 N. Y. 423-433; Matter of Monroe, 2 Conn. 395 ; Matter of Nolte, ubi supra; Matter of Clausmann, 5 N. Y. St. Repr. 329; Tyler v. Gardiner, 35 N. Y. 559, 594; Rider v. Miller, 86 id. 507; McLaughlin v. McDevitt, 63 id. 213. See, also, as to previously expressed testamentary intention, Matter of Way, 6 Misc. 484. The proponents have, in my judgment, failed to prove affirmatively the testamentary capacity of the decedent or to repel the presumption of fraud or undue influence, as required. Stibmit findings and decree in accordance with the views above expressed. Decreed accordingly.