App. Div.] Third Department, February, 1921. In the Matter of the Probate of the Alleged Codicil of the Last Will and Testament of JOHN BOSSOм, Deceased. ROSETTA KIMBALL, Individually and as Executrix, etc., of JOHN BOSSOM, Deceased, and JOHN BOSSOM, JR., Devisee and Legatee, Appellants; HENRY JOHN BOSSOM, Respondent. Wills probate Third Department, February 28, 1921. findings of lack of testamentary capacity and undue influence against weight of evidence trial contradicting party as witness-instruction that jury might consider failure of proponent to call doctor, third witness to will. In a proceeding for the probate of a will and a codicil thereto, held, that findings of the jury that at the time of the execution of the codicil the testator was not of sound mind, memory and understanding and that the execution of said codicil was not the testator's free, unrestrained and voluntary act, were against the weight of the evidence. A party to an action or proceeding who has gone on the stand may be contradicted and his credibility impaired by the evidence of witnesses called for that purpose without first putting the same question in form to the party. The charge that the jury might consider the failure of the proponent to call a doctor, the third witness to the will, while not reversible error, is subject to criticism in that the jury should not be permitted to get the impression that the failure to call such witness would be proof of insanity of the testator; they should know that the statute requires but two witnesses and also that contestant could call such witness without making him his witness. APPEAL by Rosetta Kimball, individually and as executrix, etc., and another, from a decree of the Surrogate's Court of the county of Broome, entered in the office of said surrogate on the 2d day of July, 1920, denying probate to a codicil made by John Bossom, deceased, to his last will and testament, after a trial by a jury of controverted questions of fact raised by objections to the probate of said codicil, and also from an order entered in said surrogate's office on the same day denying proponent's motion to set aside the verdict and for a new trial made upon the minutes. Third Department, February, 1921. [Vol. 195. George W. Eisenhart [H. D. Hinman of counsel], for the appellants. John Marcy, Jr. [Israel T. Deyo of counsel], for the respondent. KILEY, J.: John Bossom, a resident of Binghamton, Broome county, N. Y., on the 6th day of March, 1902, made his will; at that time his family consisted of his wife, Catherine Bossom, to whom he left the use of his property, real and personal, during the term of her natural life; a son, Adam, $5; a son, John Bossom, $500. He then provided that the balance of his property should be divided into four equal shares, and the terms of its disposition was provided in said will as follows: One of said equal shares to his said son John; one to his daughter, Rosetta Kimball; one to a grandson, Henry John Bossom, contestant herein, and son of a deceased son of the testator; and the remaining one-fourth share to his said son John, as trustee for the benefit of his son Jacob Bossom during his natural life, and if any remained of the trust estate, at the time of the death of Jacob, it was to be divided equally between the said John and Rosetta aforesaid. Jacob was an incompetent person. The testator thus named and provided for all of his direct descendants living and the only representative of the one who had died. This family was German; the testator and his wife were born in Germany. The thrift and decent frugality, characteristic of that race, had, through the years that had gone before, netted this testator a property, consisting in the main of improved real estate, which produced an income sufficient for the needs of himself and his wife. It will be observed that this will is orderly, evenly arranged, and the result of a scheme, thought out by the testator, or at least so arranged as to benefit those he was to leave behind him, in equal degrees. The evidence shows that the son Adam, who had left home early, had been advanced sufficient so that the testator felt he was no longer to be considered in the division of his estate. John, upon whom was to fall the burden of his incompetent brother, was given an extra $500. The point is not that I am now passing upon any App. Div.] Third Department, February, 1921. claim that John Bossom did not make this will nor that he was not competent to make one, but the observation is made here to call attention to its orderly and intelligent construction along lines that denote a formulated and well-considered plan. I regard this as essential, in view of the conclusion I have reached. There came a time in 1914 when John Bossom decided to make a codicil to the will aforesaid. On May 28, 1914, he executed and published that codicil; the change it makes in the will is indicated as follows: "Whereas in and by my last Will and Testament, I did, in the third division of the third clause of said will, among other things provide as follows: 'One other portion I give and devise to my grandson, Henry John Bossom, of Syracuse, N. Y., to have and to hold the same for ever.' And whereas my said grandson, Henry John Bossom, has changed his mode of living since the making of said will, and seems to be in good circumstances and not particularly in need of funds, and whereas, my son, John Bossom, and my daughter, Rosetta Kimball, have remained in and about the City of Binghamton, New York, and have looked after and administered to the wants and comfort of myself and my wife, and rendered us valuable services without compensation, and I consider that said son and daughter are deserving of greater consideration than the other of my children, my son, Adam Bossom, having had his share of my estate long ago, Now, Therefore," etc. It must be evident from the record before us that these old people, both eighty years of age or thereabouts when this codicil was made, considered that this property which their undivided effort had accumulated belonged to them both, and Mrs. Bossom also made a will and a codicil thereto at the time the codicil in question was made. The wife, Catherine, died in July, 1914. John Bossom, the testator, died February 7, 1917. The will and codicil were presented for probate. The will was permitted to go to probate without objection. John Henry Bossom, the grandson, filed objections to the admission of the codicil to probate. Availing himself of the privilege conferred by section 2538 of the Code of Civil Procedure, he demanded a trial of the issues raised by his answer before a jury; an order to that effect was made and a trial was had. The issues tried were covered by six questions submitted to the jury, Third Department, February, 1921. [Vol. 195. which questions were agreed upon. A statement of these and the concessions made by the contestant's counsel after the judge's charge was delivered will show the issues without further quotation. First. It was conceded that the evidence justified an affirmative finding that the paper writing dated May 28, 1914, purporting to be a codicil to the last will and testament of John Bossom, deceased, was subscribed at the end thereof by him. Second. It was conceded that the evidence justified an affirmative finding that said subscription by the testator, at the end of said codicil, was made by said testator in the presence of each of the other attesting witnesses and so acknowledged by him to said witnesses. Third. It was conceded that the evidence justified an affirmative finding that at the time of making such subscription the testator declared said instrument so subscribed to be a codicil to his last will and testament. Fourth. It was conceded that the evidence justified an affirmative finding that there were two attesting witnesses to said instrument, and that each of them signed his name at the end thereof at the request of the testator. On the concessions so made by contestant the jury were directed to find affirmatively on each of the four questions as set forth above. These concessions and affirmative findings are to the effect that this codicil was executed and published in a legal manner and in compliance with the statute of this State. (See Decedent Estate Law, § 21.) This suggests the question here, which must always be answered in the negative: Can an insane person do a sane act? Of course a legal act is meant. However, passing that without answering it, the two other questions which were submitted to the jury and within the confines of which it was to consider the evidence, state all and the only issues raised by contestant's objections. They are as follows: "Fifth. Was the execution of said instrument by said testator his free, unrestrained and voluntary act? Sixth. Was the said testator at the time of the execution of said instrument of sound mind, memory and understanding?" Those last two questions were answered by the jury in the negative, and upon such finding the surrogate entered a decree in the surrogate's office of Broome county, N. Y., denying App. Div.] Third Department, February, 1921. probate to the codicil. The proponent appeals from such decree to this court, urging three grounds why it should not be permitted to stand: First. That the finding of the jury is against the weight of evidence. Second. Error in the reception and rejection, and retention of evidence in the record. Third. Errors of the surrogate, prejudicial to proponent, when the case was submitted to the jury. Naturally, in the consideration of the questions submitted to the jury for its unlimited and undirected action, and upon which it found adversely to the proponent, the sixth question first suggests itself, viz.: Was this testator of sound mind, memory and understanding at the time he executed and published this codicil? We must start out with the understanding of the fact, crystallized into law, that the acts of the testator, with reference to the execution of the codicil, so far as covered by the first four questions submitted to the jury, were sane acts. This does not signify that such impetus as the affirmative holding on the first four questions may give to proponent's contention relieves them of difficulty; we must still consider the questions in the light of the evidence; and while it may be said, and practical experience and observation so advise us, that the fifth question is bound up with and involved, more or less, in the sixth. The rule is laid down for our guidance that "want of testamentary capacity and undue influence are distinct grounds on which a will may be impeached. One may be competent to make a will and yet under such restraint as to vitiate the instrument executed." (Chambers v. Chambers, 61 App. Div. 299.) It should be borne in mind that less capacity is required to enable a man to make a valid will than to enter into and make other valid contracts. (Matter of Seagrist, 1 App. Div. 615.) The reason for this rule is apparent; the will is not a contract; it usually represents the last wish, if not act, of the one departing; if it is attacked he is not here to defend his act or give a reason for it, so the court said early, in Clapp v. Fullerton (34 N. Y. 197): "The right of a testator to dispose of his estate depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust." Later the same |