Kinne v. Johnson.

PARKER, J. In regard to the denial of the motion to strike out the testimony of the defendant John Campbell, and the proof of his declarations, as evidence against the defendant Rose Campbell, I am inclined, under the case of Quin v. Lloyd, (41 N. Y. 349,) to think that the referee was right, and cannot agree that this was cause for reversing the judgment.

Upon the merits, I think, even if the referee might, from the evidence, find that John Campbell had an interest in it, he went too far in ignoring the plain interest of Rose therein, and holding that John had the entire interest.

I therefore concur in the reversal of the judgment, and the granting of a new trial.

MILLER, P. J., also concurred.

New trial granted.

[THIRD DEPARTMENT, GENERAL TERM, at Binghamton, June 6, 1871. Miller, P. J., and Potter and Parker, Justices.]

MORRIS E. KINNE and others, appellants, vs. DANIEL D.
JOHNSON and others, respondents.

The question as to the degree of mental capacity requisite to enable a testator to make a valid will, has of late received so much discussion, and particularly in the Court of Appeals in the cases of Delafield v. Parish, (25 N. Y. 9;) Van Guysling v. Van Kuren, (35 id. 70;) Tyler v. Gardiner, ( Id. 559,) and other cases, that it only remains for the courts to apply the law to particular cases as they arise. Per E. D. SMITH. J.

The rule as laid down in Delafield v. Parish, and concurred in and asserted in other cases-viz., that a testator must have a sufficient mind to comprehend the nature and effect of the act he is performing; the relation he holds to the various objects of his bounty; and to be capable of making a rational selection among them-is now the established rule, as to the measure of mental capacity requisite.

Kinne v. Johnson.

The "sound mind" required by the statute, to qualify a person to make a will, cannot be satisfied by any different rule.

A testatrix, 83 years old, went, of her own accord, to the office of a lawyer, informed him that she wanted him to draw her will, and dictated the terms thereof, of which he then made a memorandum. This memorandum, of itself, showed intelligence, memory, judgment and discrimination in regard to children, grandchildren, and other friends, and the character and situation of her property, remarkable for a person of her age, and amply demonstrated her capacity to make a will. The will was drawn by the attorney, from such memorandum, and was read over to the testatrix, a few weeks afterwards, and having been corrected or altered in a few particulars, by her, was duly executed. The two attesting witnesses, who had known her, the one 30 and the other 38 years, both testified that they saw nothing, at the time of the execution of the will, indicating that the testatrix was of unsound mind; and one of them was of the opinion "that she was more than ordinarily smart for a woman of her age." And such was the concurrent testimony of most of the witnesses. Held that so far as the objection to the will was based upon the ground of the incapacity of the testatrix to make a will, it was unsustained and unfounded.

The objection, to a will, that the testator, at the time of making it, was under undue influence and restraint, always implies that he had sufficient mental capacity to make a valid will, but that the will in question was not his own free and voluntary act, but was in fact a will imposed upon him by others. The will is set aside, or is refused probate, in this class of cases, on the ground that it is not an honest will-that it does not reflect the unbiased intent and wishes of the testator, but on the contrary, had been extorted or procured from the deceased in the weakness and imbecility of old age or disease, by artifice, deceit or imposition, or by persistent importunity amounting to a species of coercion or moral duress.

Undue influence, in this sense, is a fraud. The will is set aside upon the principle that its execution was procured by fraud and imposition, and that for that reason and upon that ground, it is not the act, deed or will of the deceased.

Upon no other ground has a court any right to set aside a deed or will executed by a person of sane mind and memory, when the execution of the same was not procured, and the free agency of the party overcome, by some constraint, coercion, duress or force.

Facts and circumstances which, in this case, were held insufficient to establish undue influence over a testatrix who was 83 years of age, in the execution of a will.

When a large portion of the property of a decedent is given, by his will, to one

standing in a fiduciary relation to the testator, the circumstance is suspicious, if it does not furnish a ground for the presumption that undue influence was exerted or fraud practiced upon the testator in procuring the execution of the will.

Kinne v. Johnson.

In such a case, proof should be given to satisfy the court that such position and relation was not abused, and that the will was the clear and free act of the party, unaffected by any improper influence.

The force of the objection that a devisee under a will stood in a fiduciary relation to the deceased depends very much upon the extent of the intimacy of the personal relations between the parties, and the circumstances attending the execution of the will.

The influence arising from gratitude, affection or esteem, is not undue. To make it undue influence, it must be such as practically to destroy free agency.

A

PPEAL from a decree of the surrogate of the county of Seneca, made upon a petition to prove the will of the late Hester Kinne, deceased.

The petition of Daniel Johnson and Joseph Dunlap, presented to the surrogate, set forth that Hester Kinne, of Ovid, Ontario county, departed this life about the 12th of September, 1866, having previously made and executed her last will and testament; and that said petitioners were named as executors. The petition prayed for the proper citations to the heirs of the deceased, to the end that probate of the said will might be duly granted to the said petitioners. The proper citations were issued, and the parties interested duly appeared before the surrogate, and contested said will.

The grounds on which the will was contested sufficiently appear in the opinion.

The surrogate established the will, and made a decree granting the usual letters of probate thereon. From this decree the contestants appealed to this court.

The case was argued, in this court, by

Geo. F. Danforth, for the appellants; and

Daniel Pratt and J. K. Richardson, for the respondents.

By the Court, E. DARWIN SMITH, J. The probate of the will of the testatrix, in this case, was contested before the surrogate upon three grounds:

90a 347

Kinne v. Johnson.

First. That the testatrix was of unsound mind, and incompetent to manage her affairs, or execute the will.

Second. That the testatrix, at the time of making the will, and also before and since, was under undue influence and restraint.

Third. That the will was not made and published as required by law.

The last mentioned ground was not pressed, on the argument here, and is clearly untenable. The proof of the due execution and publication of the will, with all the usual legal formalities required by the statute, in such case, is full and explicit.

The great mass of testimony taken before the surrogate and returned upon this appeal, is principally directed to establish the first mentioned ground of objection to the will-" that the testatrix was of unsound mind," &c.

Considering that in this class of appeals no particular force is to be given to the decision of the surrogate in admitting or refusing to admit a will to probate, and that this court is called upon to examine and consider the evidence in respect to the execution of the will, as an original question, upon the whole facts, I have read this great mass of testimony with much care, and am fully convinced that the decision of the surrogate in respect to the question of the capacity of the testatrix to make a will was entirely correct.

Indeed it seems to me impossible, upon a fair consideration of the evidence, to come to any other conclusion, according to the received doctrine of the courts, at the present time, in respect to the degree of mental capacity requisite to make a valid will.

This question has, of late, received so much discussion in this court, and particularly in the Court of Appeals, in the cases of Delafield v. Parish, (25 N. Y. 9;) Van Guysling v. Van Kuren, (35 id. 70;) Tyler v. Gardiner, (Id. 559,) and other cases, that it only remains for the courts to

Kinnev. Johnson.

apply the law to particular cases as they arise. The case of Delafield v. Parish came before the Court of Appeals on appeal, as in this case, upon the facts. That court was called upon to pass, as res nova, upon a vast mass of the evidence. The surrogate had rejected two codicils to the will in question, on the ground that Parish had not sufficient mental capacity to make a will; and his decision was affirmed by the general term in the first district. The question for the court was purely one of fact-" whether Parish possessed sufficient mental capacity to make a will." Five judges considered that he did not, as matter of fact. And I think those judges, on the question in respect to the degree of intelligence and mental capacity requisite to make a valid will, substantially concurred in the rule expressed in the opinion of Judge Selden, in these words: "He (a testator) must have had a sufficient mind. to comprehend the nature and effect of the act he was performing; the relation he held to the various objects of his bounty; and to be capable of making a rational selection among them." (Page 105.) Chancellor Walworth states the rule in about the same language, in Clark v. Fisher, (1 Paige, 171;) and Judge Washington, in Harrison v. Rowan, (3 Wash. C. C. 385.) The same rule is asserted, also, in Dunn v. Johayes, (2 Southard, 454;) Boyd v. Ely, (8 Watts, 66;) Converse v. Converse, (21 Verm. 168.)

The judges who decided the case of Delafield v. Parish, held, as matter of fact, that Parish did not possess sufficient mind to make a will, and in this sense was non compos mentis. Judge Selden asserted and concurred in the rule, but dissented from the decision on the facts. Those six judges, I think, were of opinion that the "sound mind," required by the statute, to qualify a person to make a will, could not be satisfied with any different rule. But if the sound mind and memory required by the statute is to be deemed equivalent to the compos mentis of the common law, and if the words non compos mentis mean an en