
    Richard Bishop, Adm’r, Resp’t, v. Helen E. Hendrick, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    Gift—Estoppel.
    A testatrix in feeble health made a will upon the day before her death. In this will one Hendrick was given a house and its contents. Upon the-probate of the will Hendrick appeared and supported it. The will was-denied probate upon the ground that the testatrix had not testamentary capacity. Subsequently Hendrick claimed all the property by a deed of gift. It appeared that this deed of gift, although prepared four months, before the death of the testatrix,' was only delivered to Hendrick a few hours before the will was executed. Held, that while the fact that. Hendrick supported the will and claimed under it did not absolutely estop her from thereafter claiming under the deed, her silence relative-to the deed was very strong evidence against her, and that a judgment holding the testatrix incapable to make a gift would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    
      Louis Hasbrouch, {Daniel Magone and Thomas Sprait, of counsel), for app’lt; John 0.‘ Keeler {Leslie W. Bussell, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from a judgment on report of a referee. The action was brought to recover certain personal property in defendant’s possession, consisting of notes, mortgages, and furniture and other property which formerly belonged to Clara B. Hopkins, now deceased, plaintiff’s intestate. The defend. ant claims this property by alleged gift from said Clara, and the validity of such alleged gift is the question in dispute.

On Wednesday, the 25th day of March, 1885, in the evening, said Clara signed with her mark a paper purporting to be her will. She died the next day about noon. In March, 1886, it was decided by the surrogate that the deceased was not at the time of making the aforesaid instrument competent to make a will, and plaintiff was appointed administrator.

The alleged will, thus held to be invalid, gave to defendant the house and lot in which deceased lived, with all the household furniture, pictures, keepsakes and ornaments. It gave several other bequests and devises, and then the residue to deceased’s lawful heirs and next of kin. The defendant appeared by counsel on the hearing before the surrogate in support of the alleged will.

The claim of the defendant now made is upon a deed dated November 8, 1884, alleged to have been executed by said Clara to defendant conveying the homestead in Richville and also a lot -of ten acres in Richville, “ and all and singular my goods, chattels and'personal estate of every name and nature and demand whatsoever thereunto belonging to the said Clara B. Hopkins at and immediately before the time of her decease.” The consideration expressed is $1,000 and other good causes. The paper is signed and sealed, not witnessed or acknowledged. This alleged instrument seems to have remained in the possession of the deceased, not delivered, until the morning of March 25, 1885, the day on which the deceased executed the aforesaid invalid intrhment purporting to be her will. On that morning there is some evidence by a son of defendant that the deceased took a folded paper and ■delivered it to the defendant and said: “And the house and what there is here, and here is your title,” passing the papers to her. The same witness testifies that at the same time the deceased delivered to his mother a box of securities.

The deceased was buried the following .Sunday. The next ■day the alleged will aforesaid was read at deceased’s house by Louis A. Scott, named therein as executor, in the presence of the relatives, among them the defendant. He told defendant to take •care of everything the best she could, that he would have the will admitted to probate as soon as he could. She said to the persons there that she wanted the will read, as they might think it strange that she stayed there ; that is, at the house. Some one answered that was all right, as she could do so better than any other of them. The defendant made no objection to the will, and subsequently took an active part in supporting the alleged will by her counsel. She did not then assert the title under the alleged deed. After the decision adverse to the will, and in March, 1886, she notified the Gfouverneur Bank that she claimed money on deposit pursuant to a gift to her by deceased. She also notified Scott that by gift from deceased she was the owner of certain Texas securities. In neither of these notices did she state any particulars as to such alleged gift. When this- present action was commenced, she averred in her answer that the deceased, prior to her death, gave the defendant all of the personal property demanded, without alleging time or place or mode of gift.. On the trial in 1890 this alleged deed appears to have been produced for the first time.

The learned referee found as a fact that, at the time of the attempted gift on the 25th of March, the deceased was incompetent to make such a gift, and not capable of understanding,, finding or controlling her mind. The appellant insists that this-guiding is erroneous. Mow it has been decided on a hearing of all parties that at the time of executing the alleged will, which, was on the evening of the same day, she was incompetent to-make her will. She was then, in fact, too weak even to sign her name. Of course it is possible that one who was incompetent to make a will in the evening might have been competent at nine or eleven o’clock in the morning. This would evidently be true if a Sudden attack of illness had seized a person in the afternoon who» had previously been in vigorous health. But Mrs. Hopkins was' a feeble old woman of about sixty-nine. She was in bed and not dressed that morning; said that she was feeling much worse- and was afraid she was not going to get up again: that she would not be there to sit by the window and see the view any longer. And she asked a son of defendant to attend to the digging of her grave. This was the first time he had seen her in bed. So» that the weakness under which she was suffering in the evening had, at least, commenced at the time of the alleged gift.

The defendant refers to certain acts of the deceased done during the day and some remarks of her as to her funeral, etc., which the defendant thinks show sufficient mental capacity to validate-the alleged gift. The act was the requesting one Bosworth to buy a silk handkerchief for each of four boys who were going-away from the village. But these remarks as to her funeral and these trivial presents do not go far to show capacity to deliver a deed of all her property. For we must bear in mind that the-deceased for four months, while so far as appears she was well and strong and had her mental powers, had kept this deed without, delivering it. And it is only when she is feeble and expecting to-die that she is said to have handed it to defendant. Furthermore-a few hours afterwards she goes through the form of executing a will, when, if the deed was valid, she had nothing to devise or bequeath. She even devises specifically to one Ada Walker the-ten acres specifically conveyed to defendant by the deed.

We are then satisfied that, with the decision as to the will standing unreversed, the referee correctly held as a matter of fact, upon the proof that the deceased was incompetent to make a gift at the time alleged. We have no reason on an examination of all the evidence in this case to hold otherwise on this question of fact. We recognize of course the better opportunity which the-referee had for deciding such a question on hearing the testimony of witnesses in open court.

This practically decides the case. But there are some other-points which should be considered. The plaintiff urges with great force that by the conduct of the - defendant in appearing as-legatee and devisee. under the will in support thereof upon the proceedings for probate before the surrogate, without asserting her alleged claim as donee by the deed, the defendant elected to take under the will and could not thereafter (when the will had been declared void), assert a claim under the deed. Caulfield v. Sullivan, 85 N. Y., 158, 159; Chamberlain v. Chamberlain, 43 id., 424, 443. As it is sometimes stated with rather peculiar language: No one is allowed to disappoint a will under which he takes a benefit.”

We are not willing to say that, as an absolute estoppel, the defendant was bound by these acts. She never accepted anything under the will. She urged before the surrogate that the deceased was competent to make the will. That position was in harmony with the claim that deceased was competent to deliver the deed. The question before the surrogate was not whether the deceased had much, or little, or no property. It was only as to her competence. A person claiming that a deceased has given him certain property cannot be thereby prevented from establishing the competency of the deceased to make a will, by the peril of forfeiting the property claimed through the gift. It is true that, in the present case, the alleged gift embraced the whole of deceased’s property, and therefore left nothing for testamentary disposition. Still, we think, that if the defendant preferred to permit the more equitable distribution of property made by the will, if that should be found valid, she was not absolutely estopped afterwards from asserting her claim by gift.

If the will were proved, letters testamentary would issue; if not, then letters of administration. In either case she could contest with the personal representative, and the devisee or heir, her right to the real or personal property. If she had produced the deed of gift on the hearing, that would not have affected the question then in issue, except that it might have discredited the capacity of the deceased. And that the defendant did not desire to do in any view of the matter.

But while we cannot hold that she was absolutely estopped, on the other hand, we think that her silence and concealment of her alleged rights are very strong evidence against her. If she believed, from the time of the alleged delivery of the deed, that she was the owner of all the property of the deceased, it is hardly to be thought that she would have accepted from the executor the custody for him of the personal property in the house; or that she would never have notified the legatees and devisees and executors -of the uselessness of their contest over the will; or that on the decision of the surrogate, she would have neglected to produce the paper under which she now claims.

This view becomes stronger when we consider that this alleged gift was in its effect a testamentary disposition. The alleged delivery was in view of the near death of the deceased. And as to the personal property, at least, it purported to give what the deceased should have “ at and immediately before the time of her decease.” Therefore the defendant was the more required to assert her rights as soon as possible.

We consider therefore the conduct of the defendant in these respects as tending very strongly to contradict the claim that this-deed and the box of securities were delivered to her as testified by her son. A transaction of this kind, so important, alleged to-have takent place at the bedside of an old woman, in the near approach of death, in the presence only of interested relatives, needs-strong evidence for its support. The statute places special safeguards around the execution of a will. And a transaction which is practically testamentary should be carefully scrutinized by the-courts. Kenney v. Public Admr., 2 Brad., 320; Delmotte v. Taylor, 1 Redf., 417.

It may not be very important to refer to the preparation of this-deed of gift, except as it may tend to throw light on the question whether, when delivered, it was the valid act of the deceased. Ye-refer to it briefly. Mrs. Blanchard, a sister of defendant’s husband, residing in East Hampton, Mass., visited at Richville in November, 1884. She testifies that she then made a call on deceased,, that deceased asked her to do some, writing for her, and procured pen, ink and paper. The witness says that the deceased dictated from a paper in her hand and that she wrote at her dictation; that deceased attached her seal and signed her name. Until this visit to Richville the witness had not seen deceased for eleven years. The witness did not mention this to any one until some one of the defendant’s family wrote after deceased’s death to-inquire if the witness had ever done any writing for her. Without adverting to the cross-examination of this witness, it is enough to say that if she gives the correct account of the preparation' of this deed, it is evident that the deceased took no advice from those-whom she was accustomed to consult; also, that the fluent use of technical legal phrases is remarkable.

A question has been raised whether there was such a delivery of the personal property (which is what is now in question) as to make a valid gift. We consider it unnecessary to decide that point, in the view we have already expressed. These views also render it-unnecessary to consider certain objections to evidence made by the defense.

Judgment affirmed, with costs.

Mayham and Kellogg, JJ., concur.  