Wells v. Preston

RICH, J. The ruling of the surrogate, admitting that portion of the inquisition finding Preston incompetent for more than a year prior to the time it was taken, was erroneous. Section 2335 of the Code of Civil Procedure expressly limited and confined the inquiry as to the competency of Preston to the time of the hearing, which was December 6, 7, and 8, 1904. It is immaterial that the petition upon which the proceeding was instituted omitted the word “lunacy” and alleged incompetency arising from old age, loss of memory, and under [314] standing as its basis, as the word “lunacy” as used in section 2335 of the Code, under the provisions of section ,7 of the statutory construction law (Laws 1892, p. 1487, c. 677), evidences all phases of alleged incompetency, including imbecility arising from old age and loss of memory or understanding. Matter of Schrodt, 32 Misc. Rep. 540, 67 N. Y. Supp. 244; Matter of Clark, 57 App. Div. 5, 67 N. Y. Supp. 631. The evidence of Dr. Loper was also incompetent, under the provisions of section 834 of the Code of Civil Procedure. Under this section it has been held that a physician cannot testify as to the previous condition of a person, whose knowledge was acquired while attending such person (Barker v. Cunard Steamship Co., 91 Hun, 495, 36 N. Y. Supp. 256, affirmed without opinion in 157 N. Y. 693, 51 N. E. 1089) ; and that information of the. existence of an ailment, although' not the subject of the physician’s attendance or treatment, acquired through examination of the patient in attending him in a professional capacity, is privileged (Nelson v. Village of Oneida, 156 N. Y. 219, 50 N. E. 802, 66 Am. St. Rep. 556); and that, upon the probate of a will, the testimony of a physician who attended upon the testator in a professional capacity is not competent upon the question of mental capacity (Matter of Coleman, 111 N. Y. 220, 19 N. E. 71). The objections to this evidence were sufficiently definite, and there is no suggestion of any waiver under which the evidence objected to wás made competent. The ruling of the learned surrogate that the burden of proof was by the inquisition shifted to proponent was also erroneous. At common law and under our statutes the presumption is that every man is compos mentis at the time of performance of the act challenged. The burden of proving that he was non compos mentis rests from beginning to end of the inquiry upon the party who alleges an unnatural condition of mind existing in the testator. “He who sets up the fact that the testator was non compos mentis must prove it.” Delafield v. Parish, 25 N. Y. 9. In his opinion the learned surrogate says: “This inquisition was concurred in by the commissioner and was confirmed by an order of the Supreme Court dated December 31, 19.04, in and by which a committee of the person and estate of the deceased was duly appointed. The finding of this jury, concurred in by the commissioner in the proceedings de lunático inquirendo, is not only presumptive evidence of the testamentary incapacity of the decedent, but is conclusive upon the subject until overcome by satisfactory evidence. Matter of Widmayer, 74 App. Div. 336, 77 N. Y. Supp. 663, citing Matter of Coe, 47 App. Div. 177, 62 N. Y. Supp. 376; Matter of Clark, 57 App. Div. 5, 67 N. Y. Supp. 631; Underhill on Wills, § 99. And on the authority of Wadsworth v. Sharpsteen, 8 N. Y. 395, 59 Am. Dec. 499, ‘the cases do not make any distinction, where the act is overreached by the inquisition, whether it was committed before or after the time the inquisition was found. There can he no difference in principle between the two cases.’ This, then, is the situation. A jury having found that the decedent was incompetent to take charge of his property and manage his affairs, and it appearing that the alleged will was made intermediate such finding and the institution of the proceedings de lunático inquirendo, a legal presumption exists which is binding upon the Surrogate, until overcome by proof, that the decedent was incompetent to make a will at the time that this will purports to have - been made. Matter of Widmayer, supra. * * * I think proponents have signally failed to meet the presumption against the competency of this testator following the inquisition and its confirmation.” [315] Wadsworth v. Sharpsteen, supra, cited as an authority, was decided 21 years before the section of the Code in question was enacted, and he quotes from the dissenting opinion. Neither in that case, or in the Matter of Widmayer or Matter of Coe, also cited, was the question involved in this proceeding considered or determined. The act of the incompetent challenged in each case was done after the inquisition, and not several months before, as in the case at bar. The cases relied on do not support the views of the learned surrogate: nor does Hughes, v. Jones, 116 N. Y. 67, 22 N. E. 446, 5 L. R. A. 637, 15 Am. St. Rep. 386, cited by the respondent, in which the commission was issued October 18th, and inquisition filed November 13, 1871, more than two years before the amendatory statute first prohibiting retrospective findings was enacted, and at a time when such findings were authorized by the existing law. The opinion next asserts: “Nor Is this all. Certain, direct, positive, and wholly reliable testimony has been offered in this proceeding as to the mental condition of this decedent that had no place before the jury in this inquiry. In the lunacy proceedings the lips of the one man whose opportunities to observe were the best, and whose deductions from observed facts were the most reliable and trustworthy, were fast sealed. Dr. Arthur C. Loper then testified upon a hypothetical state of facts only, just as some other physician did. But now the seal of professional privilege is broken, and he testifies, from knowledge gained in his capacity as a physician in constant attendance upon the decedent up to the fall of 1903, that the decedent was then incompetent and was so on March 26, 1904.” It is obvious, from his opinion, that the learned surrogate regarded himself concluded by the findings contained in the inquisition. The only evidence, outside of that afforded by the inquisition and order of confirmation, which he seems to have taken into consideration, was the incompetent evidence of Dr. Loper, which he holds fortifies and strengthens the presumption he concluded he was bound by. Eliminating the incompetent evidence, and giving careful consideration to that remaining, I am not clear but that the weight of evidence was in favor of the proponent, and that the will should have been admitted to probate. It follows, therefore, that the decree must be reversed, both upon questions of law and fact, costs to abide the event, payable out of the estate. And the following questions of fact sent to a jury for determination: First, Was the alleged testator competent to make a last will and testament at the time the will proposed for probate is alleged to have been executed ? Second, Was such will, if executed, the free and voluntary act of the decedent? Third, Was the will offered for probate signed and duly executed by decedent? All concur.