
    Matter of Proving the Last Will and Testament of Samuel Harris, Deceased.
    
    (Surrogate’s Court, Ulster County,
    February, 1896.)
    1. Will — Testamentary capacity.
    The fact that testator was aged and had met with a severe accident is not. sufficient to raise a presumption of testamentary incapacity, especially where it appears that he gave instructions as to the will and had sufficient intelligence to comprehend the condition of his property.
    
      2. Same — Undue influence.
    Where a will is executed according to the formalities of the statute, and the testator is shown to have been apparently of sound mind and not under any restraint, probate should not be refused or the will. set aside merely because the testator has discriminated against, or disin- • herited; those who would seem to be the natural objects of his bounty.
    Probate of will.
    
      John Rusk (Linson & Van'Burén, of counsel), for William Harris, the petitioner and executor named in the will.
    Elias M. Ellis, special guardian (Howard Ohipp, Jr., of counsel), for May I. Ellis and Edith H. Ellis, infants.
    
      
       Received too late for insertion in proper place.— [Rep.
    
   Betts, S.

Samuel Harris died at the town of Marlborough, in this county, April 25, 1895, leaving him surviving a son, William Harris, and two granddaughters, May I. Ellis and Edith H. Ellis, daughters of a deceased daughter. A petition was filed in this court on the 10th day of June, 1895, asking for probate of a "will, by the' said William Harris, the executor named therein. Citations were duly issued returnable July 2, 1895. Hpon the petition of the two infants, Elias M. Ellis, their father, was appointed their special guardian to look after their interests in this proceeding, and he filed, objections to the probate of the will in their behalf.

Much evidence was taken, and many witnesses examined.

/The contest was principally upon the testamentary capacity of the deceased, and as to whether he was under undue influence or constraint at the time the paper offered as his will was executed.

The proof shows that the will was properly executed in accordance with the laws of this state, and there has been no serious contention over that fact.

The will hears date April 18, 1895, and devises and bequeaths all the property of the deceased to his son William Harris, and appoints him sole executor thereof. The will was drawn by John Rusk, an attorney, at the village of Marlborough, and witnessed by him and Phebe C. Wygant, the mother of the wife of William Harris.

The evidence shows that Mr. Samuel Harris was an old man upwards of ninety years of age. He had for many years owned a farm in the town of Marlborough, and owned and conducted a store in the village of. Ithaca in this state. For some years his son William had resided on, and been in charge under his father of the farm in Marlborough. The store at Ithaca had been’ managed in a general way by Elias M. Ellis, a son-in-law of the deceased. The deceased had made'it his home part of the time in Ithaca and part of the time in Marlborough, and had been the head of the household at each place. A few years ago he took up his residence permanently at Marlborough, his son William and family residing with him.. On the 16th day of April) 1895, while deceased,was Walking in his room at his residence, he met with an accident by which he fell and broke his thigh, from which injury he died on the 25th day of April of that year. The day after the accident he executed a deed to his son William of the Marlborough property, and the day following, the 18th, he executed the paper which is now before me for probate.

Although an old man, it appears to be conceded that he was entirely competent to- execute a will or do any other business up until the time of the accident referred to. It is claimed upon the part of the contestant that the injury and shock to the system of the deceased, by this accident, was such as to render him incapable mentally of executing a Will. There is no doubt but that the deceased was greatly injured; that he suffered much, pain, and was, as they all describe him, • a very sick man after this accident. It is not shown, however,, by any evidence, that his mind was affected of impaired by the accident which occurred, up to at least the timé of the execution of the will. ■ On the contrary, the testimony of the subscribing witnesses, and of the physician and of such other witnesses who had any knowledge' of the situation is, that he was competent to.transact business at that time. He sent his son William for Mr. Rusk to come to his house- on the morning of the 18th to' draw his will. This. Mr. Rusk did, receiving instructions from the deceased as to how that will should be drawn, and then drew it in accordance therewith and it Was properly executed. Ho other person was in the room at the time Mr. Rusk received his instructions. He drew the paper, read it over to the deceased, and the deceased took it and read it himself. For greater caution, or for some reason not disclosed, Mr. Rusk called his attention twice during the-preparation and execution of this will to the fact that he had not provided therein for his granddaughters. The deceased said that he knew that, and that he wanted to will all to Willie. That the will was right and the way he wanted it.

It was held in the case of Horn v. Pullman, 72 N. Y. 269, that: “ There is no presumption against a will' because made by a, man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body.1 Such a rule Would be dangerous in •the extréme, and the law wisely sustains testamentary dispositions made by persons of impaired mental and bodily powers-, provided the Will is the free act of the testator, and he has sufficient intélli-gence to comprehend the condition of his property, and the scope, meaning and effect of the provisions of the will."

I hold the testator to have been shown competent to make a will at the time the paper in question was executed.

The testimony has also been very largely directed on the part of the contestants towards showing that the deceased was under the influence of his son William, or the family of his son, and that, therefore, the will was not the free act and deed of the deceased. i

The testator seems to have been a man of remarkable vitality, and of quite considerable executive capacity. He had conducted these two establishments, one at Marlborough and one at Ithaca, both in his own name, and under his immediate direction. His will was law at Ithaca and at Marlborough. The store was conducted under his supervision and direction and with his means. His son-in-law Ellis, whose wife died some years ago, and his family, had been supported from the proceeds of that store. His son William and his family had been for many years supported from the proceeds of the farm at Marlborough, ■ with, perhaps, some help from the store at Ithaca or from other means of the deceased. . The witnesses all aver that he was a strong-minded and capable man,- remarkably reticent in his talk with others concerning his own business affairs. He impressed himself upon those who came in contact with him, and who were produced at this.trial, as being a capable man, not requiring or even submitting to outside influence or dictation. The son William, on the contrary, seems to have been a-man of easy disposition, content to take life largely as it came to him, satisfied with his father’s administration of his own business, and not disposed to interfere therewith.

It is no reason for setting aside a will, that the deceased has discriminated against, or disinherited those who would1 seem, to be the natural objects of his bounty. “A testator has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will,. and he may, if he chooses, exclude his children or divide his estate among them unequally. The question in all such cases is, was the will the free act of a competent testator? ” Horn v. Pullman, supra.

To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive'and opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator either by importunities which he could not .resist, or by deception, fraud or other improper means that the instrument is not really the will of the testator: * * * It is not for us to judge of the justice of the provisions of the' will, or of the reasons which the' testator had for discriminating. * * * However partial or unjust testator may seem to have been in his testamentary dispositions, if the instrument propounded is actually his will, effect must be given to it.” Cudney v. Cudney, 68 N. Y. 148.

. “ The - case then is one where the testatrix had testamentary capacity,-a-present knowledge of the contents of the will, and where at its execution she was surrounded. by all the guards which the statute has prescribed to prevent fraud and imposition. A will executed under these circumstances can be avoided only by influence amounting to force or coercion, and proof that it was1 obtained by this coercion. The burden of proving it is on the party who makes the allegation. These principles -are well settled.” Matter of the Will of Martin, 98 N. Y. 193, and cases therein cited. . ;

There is no such force or moral coercion shown or attempted to . be shown in this case. The deceased had for many years, made it his home with his son-in-law, and within a few years had apparently at his .own volition selected -Marlborough, with his son, as his residence. This, perhaps, was not unnatural; in View of the fact that ■his daughter, who had formerly réside.d with him at Ithaca, was dead. In connection with the provisions of the will, the selection of Marlborough as his home and having his son William-reside with him as his confidant, and as the nearest to- him, to execute his wishes in the matter of his business, may be taken as significant.

Much stress is laid by the contestant upon the fact that no will was made, of at least produced, by deceased until after this injury was received. It is, of course, impossible to show that no prior • ' mil had been made, but none is produced. This, however, is not a singular circumstance, as many people of advanced age seem to' have an objection to making their wills until some sudden accident, or serious sickness calls their attention to the unsettled state of their affairs if death should call them.

' “And why? Because he thinks himself immortal.

All men think all men mortal but themselves.”

Many letters have been produced showing numerous remittances from deceased to both his- son-in-law and his granddaughters. While these amounts are not large, it may well he that the deceased concluded that that branch of his family had had sufficient of his means, and his remaining property should go to his son William and his family.

We may not enter into the mind of the deceased to ascertain his motives, or to criticise them. He executed his will according to the formalities of the statute. He was apparently of sound mind, and has not been' shown to be under any restraint.

The will will be admitted to probate, and a decree, may be handed up to that effect".

Probate granted.  