First Department, May, 1921. [Vol. 197 In the Matter of Proving the Last Will and Testament of ROSA E. SPANG, Deceased. GEORGE W. WICKERSHAM and Others, Appellants, Respondents; MABEL SPANG ANCKER, Respondent, Appellant; MARIE T. MOORE, Respondent. First Department, May 27, 1921. Wills probate sufficiency of evidence to overcome presumption of sanity of testator - rules for considering verdict of jury on appeal verdict that deceased was not of sound mind not against weight of evidence. A mere scintilla of evidence is not sufficient to overcome the presumption of the sanity of a testator, and the verdict of a jury must be considered and its effect determined under the same rules that govern the court in the review of the verdict of a jury in other cases where, by the Constitution, or by statute, the parties have the right to a jury trial. In determining whether the verdict of a jury in proceedings to probate a will is against the weight of the evidence the question is whether the finding of the jury was so far against the weight of the evidence as to indicate passion or prejudice as the procuring cause of the verdict. On all the evidence, held, that the verdict of the jury that the testator was not of sound and disposing mind at the time the will was executed was not against the weight of the evidence. APPEAL by George W. Wickersham and others from a decree of the Surrogate's Court of the county of New York, entered in the office of said surrogate on the 15th day of April, 1920, as resettled by a decree entered in said surrogate's office on the 14th day of May, 1920, on the verdict of a jury adjudging that two papers offered for probate as the last will and testament and codicil thereto of Rosa E. Spang were executed by her at a time when she did not have testamentary capacity to execute the same and denying probate thereof, and also from an order entered in said surrogate's office on the 15th day of April, 1920, denying appellants' motion to set aside the verdict returned by the jury as to issues numbered V and X and to set aside the general verdict in favor of the contestants rendered by the jury upon direction of the court and for a new trial made upon the minutes. App. Div. 310] First Department, May, 1921. Appeal by Mabel Spang Ancker from so much of said decree as orders, adjudges and decrees that the execution of the papers offered for probate herein was not caused or procured by the undue influence or fraud of any person or persons. Pursuant to stipulation dated December 16, 1920, an order was granted by the Appellate Division on December 17, 1920, dismissing the latter appeal. Henry W. Taft of counsel [Thomas B. Gilchrist with him on the brief; Cadwalader, Wickersham & Taft, attorneys], for the proponents. Edgar T. Brackett of counsel [Hiram C. Todd with him on the brief; Brackett, Todd, Wheat & Wait, attorneys], for the contestant Ancker. SMITH, J.: Rosa E. Spang died June 22, 1919, at the age of seventyeight years. Charles H. Spang, her husband, died February 14, 1919, at the age of eighty-five years. The property of which she died seized was mostly property that came from her husband. By her husband's will, after deducting some minor legacies, a daughter, Mabel, was given an annuity of $20,000 a year, and the widow was given the income from the balance of the property. After the death of the life annuitants the property was to be given in part for certain specific purposes named and the remainder to his executors to be distributed for charitable purposes as they might select. Under the laws of the State of Pennsylvania, of which State her husband was a resident at the time of his death, the widow had the right to elect to take under the will or to take one-half of the husband's property.* She assumed to make such an election just prior to her death to take one-half, and if that election be a valid election, the estate of Rosa E. Spang at the time of her death amounted to about $1,600,000. By the paper sought to be proven as her will, Rosa E. * See Wills Act of 1917 (Penn. Laws of 1917, p. 410, No. 190), § 23; Intestate Act of 1917 (Penn. Laws of 1917, p. 431, No. 192), § 1.— [Rep. First Department, May, 1921. [Vol. 197 Spang, after giving some minor legacies and providing for the payment of inheritance taxes out of the estate, provided for the establishment of a charitable organization to be called the Rosa Spang Foundation, and gave to that corporation so to be organized the residue of her property, subject, however, to the payment to her daughter Mabel of an annuity of $10,000 for life. The charities which were to be the beneficiaries of the income under this Rosa Spang Foundation were described to be for "the relief of poverty and distress, and especially in caring for young children and babes, who by reason of orphanage, abandonment or otherwise, are without means of proper support and maintenance; in providing for the education, instruction and aid of the deserving blind; and also in affording temporary relief to unobtrusive suffering endured by industrious or worthy persons, including the bestowal or distribution of any part of such income to and among benevoient or charitable institutions, objects or persons, such as shall be deemed most useful, deserving or judicious." Charles H. Spang and Rosa E. Spang were married in 1898. The daughter Mabel was born in 1885. There is no question raised as to the parentage of this daughter and she was accepted both before the marriage of her parents and afterwards as their child and provided for as such. The codicil to this will simply provided for a legacy to Charles C. Lockwood of $10,000 and was executed immediately after the execution of the will, and in discussing the issues in the case the will and codicil will be referred to simply as the will of Rosa E. Spang. When this paper was offered for probate, Mabel Ancker, the daughter, filed objections alleging that the will was not executed with proper formalities, that the same was procured by undue influence and that the paper was executed at a time when Rosa E. Spang was of unsound mind and without testamentary capacity to execute a will. Objections were also filed by Marie T. Moore who was a legatee under a prior will. Mabel Spang, the daughter, was first married to a man by the name of Crome and after his death was married to a man by the name of Ancker. She was in Europe at the time of the death of her father and only reached America a couple of days before her mother's death. She had had considerable difficulty in getting passports by reason App. Div. 310] First Department, May, 1921. of the fact that when she went to Europe her passports were given to her under her former name of Mabel Crome, and she secured passports authorizing her return under the same name, and as she desired to return to Europe she used the name of Crome in this country and first filed the objections under that name. Upon the trial of the issues before the jury all questions were by the court withdrawn from the consideration of the jury except the question as to the testamentary capacity of the deceased at the time of the execution of the will and of the codicil, and upon that question the jury has found that the deceased had not testamentary capacity at the time she signed the paper offered for probate as her will and codicil. From the decree entered upon this finding this appeal has been taken by the executors named in the will. In the briefs of counsel criticism is made on the one hand of Mr. Lockwood's actions as bearing upon his interest in this case. I find nothing in the record, however, which justifies any adverse criticism. There was no effort on his part to obtain any advantage for himself or for any one else whom he represented. Mrs. Spang became suspicious of him and desired to change her attorney and he himself brought Mr. Wickersham into the case. On the other hand, Mr. Wickersham has given full recognition to any obligation which he might owe to Mr. Lockwood, and himself procured the legacy of $10,000 to Mr. Lockwood to be inserted in the codicil of the will. Criticism is made of the form of the will which gave to these executors personally any property which might fail to pass thereunder by virtue of any statutes against the passing of property under a will to charitable institutions made within certain periods before the death of the testatrix. The will as drawn contained no illegal provisions. Considerable criticism is made of the act of Dr. Chapin in excluding the daughter from her mother's room when she came there just prior to her mother's death. But this was done in accordance with the expressed wish and determination of the mother not to see her daughter, and it can well be surmised that any scene between them would have hastened her mother's death. These executors in this will were all men of standing in the community. First Department, May, 1921. [Vol. 197 The only issue here argued is as to whether the finding of the jury is based upon sufficient evidence. In Matter of Eno (196 App. Div. 131), decided by this court April 8, 1921, the opinion of Mr. Justice PAGE states the rule which is to guide our determination of this question. It is there stated that a mere scintilla of evidence is not sufficient to overcome the presumption of the sanity of the party executing the will, and that the verdict of the jury must be considered and its effect determined under the same rules that govern the court in the review of the verdict of the jury in other cases where, by the Constitution, or by the statute, the parties have the right to a jury trial. Upon this rule of law as there declared this court was unanimous, and the only question, as we view this case, which we are called upon to determine is as to whether under this rule the verdict is against the weight of evidence. Upon that question, further, we are controlled by the uniform rulings of the courts. The question is not as to what the reviewing judge would have decided if the case had been originally before him for determination, but the question to be determined is as to whether the finding of the jury was so far against the weight of evidence as to indicate passion or prejudice as the procuring cause of the verdict. While there is evidence in the case tending to establish the mental capacity of the decedent, there is much evidence to the contrary. There is evidence in the case as to the vulgarity of the deceased and perhaps of a depraved mind tending to eroticism, but such a perversion of the mind, even if abnormal, in no way entered into the making of this will. That tendency was perhaps caused by the physical condition of the deceased. But whatever the cause may have been, it had existed for many years prior to her death, so that under the evidence of the experts for the contestants it had little, if any, significance in determining whether at the time of the execution of the paper propounded as her will she had senile dementia, which is claimed to have incapacitated her from making a will. The brutality of the deceased to her husband in his last sickness as sworn to by the witnesses for the contestants, if not exaggerated, would indicate an abnormal mind, but no such perversion of the mind has in any way entered into or influenced the making of the will in question, although it may be generally |