
    In re CARVER'S WILL.
    (Surrogate’s Court, Cattaraugus County.
    May 10, 1893.)
    1. Wills—Alterations.
    The words, “to be accepted in lieu of dower,” in a will, after a bequest to testator’s widow, will not be held to have been inserted after the execution of the will, merely because they are somewhat heavier, and of a darker shade, than most of the will, where the widow, who is the only one prejudiced thereby, asks for probate of the will, and is in a position to know whether it is in the same condition as when executed.
    2. Same—Testamentary Capacity.
    Lack of testamentary capacity cannot be presumed from the fact that one is of advanced age, is sick at the time of executing the will, and leaves less to relatives than they would have got if he had died intestate. 8. Same—Undue Influence.
    The burden placed on one who had done some legal business for testator, who wrote his will, and was the principal beneficiary thereunder, to show that it correctly represents testator’s wishes, is met by evidence that the will was in substantial compliance with the general scheme testator had for over a year had for disposing of his property; that testator first asked his physician to draw the will, and the latter suggested the lawyer who was at the time in the house; that testator then talked over the provisions of his will with his wife; that when the witnesses came in testator had the will before him, and, on being asked if there were any changes he wanted made, said it was just as he wanted it.
    Proceeding for probate of the will of Solander Carver, deceased. Probate granted.
    O. Z. Lincoln, for proponent and widow.
    T. H. Dowd and Alfred Spring, for contestants.
    J. J. Inman, special guardian, in pro. per.
   DAVIE, S.

This is a proceeding to secure probate of the instrument propounded as the last will and testament of the deceased, such probate being opposed upon the grounds of alleged fraudulent alteration, undue influence, and lack of testamentary capacity.

Solander Carver died at the town of Great Valley, in the county of Cattaraugus, on the 14th day of February, 1893, at the age of 69 years, leaving him surviving bis widow, Bebecca Carver, one sister, several nephews and nieces, but no children or lineal descendants, and possessed of real estate of the value of about $7,000, and personal property to the amount of $14,000. The instrument presented for probate herein bears date on the 9th day of February, 1893, and by its terms bequeaths to the widow all of testator’s household furniture, and an annuity of $400 during life. It gives to each of the sons and daughters of a deceased sister of testator small legacies in money; bequeaths to Viola A. Bailey, another niece, an interest in a certain real-estate mortgage known as the “Niles mortgage;’' and devises the real estate to the proponent, and gives to him the residuum of the estate after payment of such legacies, and the death of the annuitant. The proponent and the legatee Bailey are children of the only living sister of deceased: the contestants William Scoby and Jennie Norton are children of a deceased sister of the testator; and the minors, who appear herein as contestants by their special guardian, are grandchildren of said deceased sister.

A methodical analysis of the objections urged against probate herein, and of the facts and circumstances upon which the same are predicated, leads us first to an examination of the claim of fraudulent alteration. Questions of this character have been before the courts so frequently that there need be but little difficulty in determining the general legal principles applicable thereto, and in passing it will be observed that more marked distinctions exist between alterations, erasures, and interlineations appearing from inspection of wills than any other class of legal documents. As a general rule such alterations, in the absence of proof to the contrary, are presumed to have been made before the execution of the writing in which they appear. Such presumption seems to have had its origin in the fact that material alterations modifying or defeating vested rights under written documents are usually the outgrowth of a criminal intent, the existence of which the law does not willingly presume, always preferring the presumption of innocence to that of guilt; but an exception to such rule exists in case of wills, which from their very nature cannot become operative or vest any rights, and which are absolutely subject to the volition of the testator, to the time of his demise, and where the necessity for the presumption above referred to does not exist. The generally recognized rule is that, where alterations appear upon the face of a testamentary disposition of property, such alterations are presumed to have been made after execution, rendering it necessary for those seeking to establish a will containing such apparent defects to overcome such presumption by proof, direct or inferential. Wetmore v. Carryl, 5 Redf. Sur. 544; Dyer v. Erving, 2 Dem. Sur. 160. The court of appeals, in a somewhat recent case bearing upon this subject, says e that, "where an interlineation, fair on the face of the instrument, is entirely unexplained, we do not understand that there is any presumption that it was fraudulently made after execution,” (Crossman v. Crossman, 95 N. Y. 145-152;) but in that case the application of the principle there enunciated was limited to wills where the interlineation was fair upon its face; for the court says that, if there are any suspicious or doubtful circumstances growing out of the mode of alteration, the ink in which it was made, the fact that it was in favor of the party holding the instrument, and that it is not noted at the bottom, then these and all the other circumstances pertaining thereto become questions of fact for the consideration of the trial court in determining whether such alteration was made before or after execution.

The second point of variance between wills and other instruments containing alterations is the effect thereof upon the validity of the instrument containing them. It is the general rule that a material alteration in written documents, made after execution, for fraudulent purposes, vitiates the entire instrument. Such, however, is not ordinarily the case with wills. The effect of an unauthorized and unauthenticated erasure or interlineation in a will, made after execution, is to render the change thereby sought to be made inoperative, leaving the will to stand in form and effect as before such alteration was attempted. The reason for such a rule in case of wills is apparent. The statute has surrounded the execution of testamentary instruments with certain reasonable forms and ceremonies as a shield and protection against fraud and imposition, and the purpose of such precautionary measures might be entirely defeated if held applicable only to the original execution, leaving all subsequent alterations and modifications, however important, to be made without such protection.

The first item of the will in this case is as follows:

“First. After all my lawful debts are paid and discharged, I give and bequeath unto my beloved wife, Rebecca Carver, out of the avails of my personal estate, the sum of four hundred dollars annually, to be paid to her on demand by executor during her Ufe. I also bequeath to my said wife all of my household furniture, goods, books, pictures, organ, clothing, etc., to be accepted in lieu of dower."

It is asserted by the contestants that the words “to be accepted in lieu of dower” were inserted after the execution of the will. This allegation presents a question of considerable importance, and one worthy of careful consideration, for the legal effect of the words claimed to have been added is to very materially diminish the value of the widow’s interest in the estate of the deceased. If it appears with reasonable certainty from an inspection of the instrument that such words were not written at the same time as the other portions of the will, then the presumption is that they were inserted after execution, because in this case the alteration does operate in favor of the party holding the instrument, and it becomes his duty to show sufficient facts to overcome such presumption. This will is written upon the usual printed blank with ruled lines, and all thereof except the signatures of the testator and attesting witnesses was in the handwriting of the proponent. The words, “clothing, etc., to be accepted in lieu of dower,” are written upon and constitute one entire line in regular order,—no crowding of words or letters, and no alterations, erasures, or interlineations, or other peculiarities observable from inspection, except that the letters in the words “to be accepted in lieu of dower” are somewhat heavier, and of a slightly darker shade, than the letters in most of the other portions of said instrument, but no darker and but little heavier than the word “fifth,” at the beginning of the fifth item of said will, and neither darker nor heavier than the letter “S” in the name of the deceased at the beginning of the will. It will be entirely apparent to any one who will carefully compare the words claimed to have been inserted with various other portions of the will that such words were written with the same ink, and that their apparent darker hue is occasioned simply by a freer flow from the pen, and consequently a greater accumulation of ink at that point. It is the experience of every scrivener that irregularities in the general appearance of written documents, a diversity in the form and shading of the letters, is not only possible, but of very frequent occurrence in writings by the same person, at the same time, and with the same pen and ink, and that such is especially liable to be the case where the scrivener writes from dictation, with his attention divided between the mental operation of comprehending and formulating the instructions of the person dictating and the physical operation of placing the same upon the paper. There are other significant suggestions in this connection. The attesting witness Colgrove had been for many years the family physician of the deceased; was present at the time of the execution of the will; not only signed it as a witness, but saw the testator sign it; and on that occasion examined the will with considerable care, so much so that he observed and recollected the blot over the S in the name of deceased at the beginning of the will; and upon the trial he is shown the will, and asked to examine it, which he does, and is then questioned with considerable particularity regarding its appearance, and he testifies distinctly that he observes no changes or alterations therein. Then, again, the widow—who is the only one prejudiced to any extent by the words claimed to have been inserted, was present with the deceased while the will was being prepared, and knew the wishes and desires of deceased in regard to the disposition of his property, and who is in a situation to know, and does beyond any question or peradventure know, whether this instrument is in the same situation now as when executed by deceased—■ appears in this case, not as a contestant, but, with the proponent, urging probate of said will in its present form. She is a woman of good judgment and fair ability, and the suggestion is farcical that she would knowingly and quietly submit to the consummation of a fraudulent scheme perverting the testamentary wishes of her deceased husband, and depriving her of valuable property rights. The only reasonable inference to be drawn from the relations of the widow to this contest is that she distinctly knows and understands what the wishes of the deceased were in regard to the contents of his will, and that she respects such wish, and governs her conduct so as to effectuate the same. In view of all these facts, I have found as a fact in this case that the instrument' presented for probate is in the same condition now as when signed and executed by the testator on the 9th of February, 1893.

The second proposition in this case is that of alleged lack of testamentary capacity. The law does not, of course, attempt to define any particular grade of mental ability or acumen necessary to qualify one to make a will. Wills are made by all classes of people, in every station of life, and under almost every conceivable set of circumstances; by persons of weak intellect, and by those of magnificent ability; sometimes in the midst of life and business prosperity, at other times in extremis, or while overwhelmed with adversity. Hence it is impossible to formulate any precise rules applicable to any particular case. The most that the courts have attempted to do was to dispose of each individual case as it arises, upon its own peculiar facts and circumstances, and in so doing establish certain very general propositions bearing upon this subject. It has been asserted that in law the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as these terms are used in their fixed legal meaning; and, if compos mentis, he can make any will, however complicated; and, if non compos mentis, he can make no will, however simple. Delafield v. Parish, 25 N. Y. 9. Again, it has been asserted as a general proposition that one capable of comprehending the condition of his property, and his relations to those who are the natural objects of his bounty, and able to collect and retain in his mind without prompting the elements of his business, possesses testamentary capacity. Van Guysling v. Van Kuren, 35 N. Y. 70. And, further, that no presumption of lack of testamentary capacity springs from the fact that the terms of the will are harsh and unjust, and that the natural objects of testator’s bounty get less under the will than in case of his death intestate. In re Tracy, 11 N. Y. St. Rep. 103. And that there is no presumption against the validity of a will because made by a person of advanced age; nor can incapacity to make a will be inferred from an enfeebled condition of body or mind. Horn v. Pullman, 72 N. Y. 269. In the light of these and various kindred authorities, an examination of the evidence in this case discloses but little to sustain, but very much to refute, the claim of want of capacity. The attesting witness Colgrove, who evidently testifies in this case without prejudice or bias, was a physician of many years’ practice. He had been the family physician of the deceased for many years, covering the time of the sickness and death of testator’s only child. He visited deceased daily during his last illness, closely watched the progress of his disease, conversed, with him frequently, and from his long acquaintance, with and personal attendance upon deceased was peculiarly well qualified to speak as to his mental condition at the time of the execution of this will. He declares under oath, positively and distinctly, that the testator was then possessed of sound mind and understanding. Nor does he give a mere formal, inconsiderate expression of opinion upon this subject, but he is subjected to more than a usually lengthy and rigid cross-examination without in the least discrediting Ms evidence, but, on the contrary, disclosing many facts and circumstances showing the correctness of his opinion. The other attesting witness, Davis, had been for a long time a neighbor and intimate acquaintance of the deceased, had had business transactions with him, nursed and cared for him in his last sickness, and had ample opportunity to observe any loss of memory or failing of mental capacity on his part; and he also distinctly testifies that at the time of the execution of this will deceased was of sound and disposing mind and memory. The correctness of these conclusions find most satisfactory confirmation by a slight reference to the circumstances attending the execution of this will as disclosed by the evidence. Deceased had been for many years prior to his death somewhat actively engaged in business. He was a hard-working, industrious man, strictly temperate, possessed of sound judgment and practical common sense, not inclined to be communicative in relation to his business affairs, but, on the contrary, of a secretive disposition, and up to the time of his last illness had been a man of unusually good health, aside from occasional slight attacks of rheumatism and acute inflammation of the bladder, and at no time had he been afflicted with any physical or mental disorder tending in the least to impairment of his mental faculties. His final sickness began on the 7th day of February, 1893, and the instrument now propounded for probate was executed within two days thereafter, and at no time prior to the execution of the same did his conduct or conversation indicate any incoherence, loss of memory, or weakness of understanding. Although not talking freely, what he did say was in all respects rational, consistent, and intelligible. Directly before the preparation of the will he conversed with the physician regarding his condition; spoke of his plans and intentions regarding the maldng of a will, and explained why he had delayed it to that time; asked the physician if he could then draw a will for him; desired an opportunity of discussing his business affairs with his wife, and did so, and, after his interview with her, again talked with the physician, and informed him that he was going to make a will, and that his wife desired to be pensioned, as he expressed it, and requested the physician to stay and witness his will when drawn; selected his nurse, Mr. Davis, as the other attesting witness; expressed his approval of the form of the will after it was prepared by saying that it was as he wanted it, and signed it plainly and distinctly, and thereupon declared it to be his last will and testament, and again requested the witnesses to sign it. In view of all these facts and circumstances, concerning which there is no dispute in the testimony, the conclusion seems irresistible that the testator at the time of executing this will was in all respects fully competent so to do.

The remaining question is that of the charge of undue influence exercised upon deceased by the proponent at the time of the preparation of the will. Having determined that the testator at the time of the execution of this will was of sound mind, fully competent to transact business, capable of comprehending the extent of his property and his relations to those around him, it follows as a corollary thereto and a natural deduction therefrom that the making of the will in the form it now presents was the free, untrammeled act of the testator himself. The cases have quite clearly defined the grade and character of the influence which must be shown to have been exercised upon the testator to justify denying probate to a will. In order to avoid a will upon any such ground it must appear that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which by importunity that could not be resisted constrained the testator to do that which was against Ms free will •and desire, but wMch he was unable to refuse, or too weak to resist. It must not be the promptings of affection, the desire to gratify the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts or friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. Society v. Loveridge, 70 N. Y. 387-394; Gardner v. Gardner, 34 N. Y. 155; Marx v. McGlynn, 88 N. Y. 357; Seguine v. Seguine, 4 Abb. Dec. 191; Dean v. Negley, 41 Pa. St. 312. The exercise of such undue influence must be proved, and, while it is not necessary, and ordinarily not possible, to establish it by direct proof, the circumstances relied upon as inferentially showing the same must be of such a character as to naturally lead to the conclusion that such influence had in fact been exerted. Brick v. Brick, 66 N. Y. 144. It is not sufficient to show that a party benefited by a will had the motive and the opportunity to exert such influence. There must be evidence that he did exert it. Cudney v. Cudney, 68 N. Y. 149; In re Williams, (Sup.) 19 N. Y. Supp. 778. In this case the will was drawn by the proponent, who is named as a legatee therein and executor thereof, and this circumstance is urged with great earnestness by the contestants as proof of undue influence on the part of the proponent. It is undoubtedly true that the law looks with a jealous eye upon the acts of one who, standing in a relation of trust or confidence, is instrumental to any extent in procuring a testamentary provision in his own favor; and, while such circumstance does not in and of itself invalidate the bequest, it does call for satisfactory explanation, and imposes upon him claiming under such provision the burden of showing that it was in all respects fair and honest. The only relation which proponent sustained to the testator of a confidential character at the time of preparing the will was simply that of scrivener. The proponent was an attorney, and at some former time had trans- 0 acted some little legal business for the testator by way of drawing bonds, mortgages, and other papers; but it does not appear "that at the time the will was drawn the relation of attorney and client existed between testator and proponent to any extent. If the emergency of the case would have permitted doing so, it would undoubtedly have displayed much better judgment and sense of propriety on part of proponent to have procured the assistance of another attorney in preparing this will; but the fact that he failed to do so does not invalidate the legacy to him. It has been distinctly held that the fact that the draughtsman who drew the will takes a legacy under it is only a circumstance to be considered in connection with, other circumstances indicative of fraud or undue influence. Post v. Mason, 91 N. Y. 539; Coffin v. Coffin, 23 N. Y. 9, It has also been held that where a will was drawn by the principal beneficiary under it, and the testator was able to read writing, and of sufficient capacity to transact business, and yet did not read it, it may be inferred from the circumstances that the testator was acquainted with its contents. Nexsen v. Nexsen, 3 Abb. Dec. 360; In re Smith, 95 N. Y. 516. In the case last cited it was held that the fact that the attorney of the deceased was the principal beneficiary under- the will does not alone create a presumption that the testamentary gift was procured by fraud or undue influence, but that in a case where the testator was of advanced years, infirm mentally and physically, and made his attorney his principal beneficiary, contrary to previously expressed testamentary intentions, and where such attorney was the draughtsman of the will, and took an active part in procuring its execution, and that the testator acted without independent advice, the burden is imposed upon the attorney of showing that the will was the free and untrammeled expression of the testator’s intentions.

So I think it may be said that the general principle adduced from these various authorities applicable to this case is that, under the peculiar circumstances attending the making of this will, the burden was imposed upon the proponent of showing that the will, in-its present form, correctly represents the wishes of the deceased; and it is urged on part of the contestants that the evidence bearing upon that question falls short of meeting this requirement, and that it fails to show that the testator was fully apprised of the contents of the will before executing it. This charge necessitates an examination somewhat carefully of the facts attending such execution. Deceased was taken sick February 9, 1893. His physician was called, and’visited him at the hour of 4 P. M. of that day, and found him in bed, troubled with a recurrence of his former ailment,—inflammation of the bladder,—and with an inflammation of the lungs. The physician visited deceased on the following day, (Wednesday,) and discovered that the inflammation of the lungs was extending, and had assumed the form of pneumonia. He visited him again on Thursday,—the day the will was drawn,—about noon, examined him carefully, and concluded • that his recovery was a matter of serious doubt. He then talked with the deceased about his condition, and informed him that he was very sick, but expressed to him the hope that he would recover; and then suggested to him that, if his business affairs were not satisfactorily arranged," he should then attend to them. Deceased replied that he had been thinking for four years of making a will, but that he had supposed that if a man made his will he would die soon after, and that he had put it off; that he intended in the fall to buy a house and lot in the village of Salamanca, and move there, and then make his will, but that he wanted his will made then, and that there was no one present who could draw it unless the physician would do so, to which the physician replied that he could draw his will, but that Mr. Wheaton was in the adjoining room, and he could do it much better. Deceased said he had not thought of that, and asked the physician to stay and witness his will when drawn, and to tell his wife to come into the room, saying he wanted to talk over his business matters with her. This request was communicated to the wife, and she thereupon went into the room with the testator, and closed the door, and remained alone with him for about one hour, and at the end of that time came out of the room, and informed the physician that testator again desired to see him. The phy-' sician accordingly went into the room where testator was, and again talked with him about his condition, and testator said to him: “I want you to have Stanley (Mr. Wheaton) make my will. Rebecca says she wants to be ‘pensioned,’ ” and was thereupon evidently about to inform the physician what disposition he designed to make of his estate, when the physician told him he did not want to know anything about how he wanted his will drawn, and thereupon, testator requested that Mr. Wheaton and his wife, Rebecca, come into the room, which they did, and remained with him for about one hour and a half, during which time the will was drawn. At the end of that time Wheaton opened the door, and called the physician and the other attesting witness into the room, and said to them in the immediate presence and hearing of testator that he had drawn his- will, and that he had read it over to him, and then asked the testator if there was anything he wished to change, to which testator replied that it was as he wanted it. Thereupon testator took the pen, signed the will, acknowledged it to be his last will and testament, and requested the witnesses to sign it, which they did in his presence, and in the presence of each other. When the witnesses were called into the room the deceased was reclining in bed at an angle of about 45 degrees, with the will in front of him upon a book, and with full and ample opportunity of examining its contents. The proponent resided at the town of Little Valley, about" 15 miles distant from the residence of the testator, and after the physician’s visit on Wednesday he communicated with Wheaton,, who thereupon went to the residence of deceased, arriving at the hour of midnight, and stayed there until after the execution of the-will, and substantially all the time to the death of the testator. At the time of Wheaton’s arrival one Mr. Eider was in charge of the-testator, nursing and taking care of him, and he testifies that when Wheaton came he spoke to the testator, asking him how he felt, but that nothing whatever was said between them upon the subject of a will or other business affairs, and that he remained with, the testator continuously to the time of the arrival of Mr. Davis, the other nurse, in the morning. Davis testifies that he was-constantly in charge of testator from the time he arrived there until the physician came, about noon; that he was not out of the room, except momentarily, for the purpose of doing errands or transacting-other matters of business, and that at no time in his presence did Wheaton and testator have any conversation in reference to the-making of a will. Moreover, it distinctly appears from the evidence that the testator had not only been contemplating the making of a will for a long time, but that he had determined upon a general scheme or plan for the distribution of his property; that such plan involved the giving to his wife of an annuity during her life, and the making of Wheaton his principal beneficiary. In the summer or fall of 1892, the deceased, in speaking of testamentary wishes, said to his wife, in the presence of Miss Finney, a domestic,, that he was going to give his wife $400 a year and a house and lot in town if he had one. In November, 1891, in speaking about his property mattters to the witness Bailey, testator said that he was going to make a will, and was going to will the farm to Wheaton, and that Rebecca wanted $400 a year for her share; that ■she did not want to be bothered with the farm; and that he was going to give the Niles mortgage to Viola Bailey. Again, in November, 1892, he said to the same, witness, Bailey, that he must make a will; that he was going to give the farm to Stanley, and ■that Rebecca had got to be paid $400 pension; and that the interest ■in the Niles mortgage he was going to give to Viola Bailey; that -the Scobys had done something he did not like, and he would not ■give them any property. This I believe to be a full and fair statement of the general facts attending and leading up to the execution of the will in question, and the conclusions directly established thereby, or reasonably and naturally inferable therefrom, are these: First, that for more than a year prior to his death testator had entertained a general scheme for the disposition of his property, ■the leading features of which were to “pension” his wife, and make the proponent his principal beneficiary after so providing for her; second, that the will as presented is in substantial compliance with such scheme or design; third, that the proposition for making a will at the time this will was drawn did not originate with the proponent, but with the testator himself, after learning from his physician the serious nature of his illness; fourth, that the proponent did not volunteer his services as scrivener, but acted in that •capacity only after having been requested by the testator so to do; fifth, that such will was not prepared until the testator and his wife had consulted together in relation thereto; sixth, that the widow was present during the time such will was being prepared, and knew the desires and wishes of deceased, and has full knowledge at the present time as to whether the will is now in the same form as when executed, and whether it correctly represents the testamentary desires of deceased; seventh, that deceased was surrounded ■by friends and attendants during the entire time that proponent was there, and that the opportunity did not exist for the exercise of any undue influence by proponent. After having carefully examined the elaborate briefs presented by the contestants in this case, and the various authorities to which my attention has been ■called, I am of the opinion that the conclusions above formulated are irresistible, and, such being the case, it becomes my duty to admit the will to probate. A decree will be accordingly entered.  