
    Matter of the Contested Probate of the Will of Charlotte Miller, Deceased.
    
      (Surrogate's Court, New York County,
    
    
      Filed November, 1901.)
    Will — Testamentary Capacity — Undue Influence.
    Innediately after an attending physician and an eminent specialist had declared a testatrix to be in an advanced state of paresis, affording no lucid intervals, and from which she died about a month later, the principal and residuary legatee and her husband, not relatives, discharged the attending physician, took charge of the testatrix, employed for her their own physician, and she, two weeks later, executed an elaborate will, prepared by an attorney who was the husband of one beneficiary and the son-in-law of another, in which the new attending physician was made executor, and which was witnessed by this physician, the attorney, who was thereby directed to be put in charge of the legal business of the estate, and by three ser-vanls who were either made legatees or were employed by the residuary legatee.
    
      Held, that the testatrix was not competent to make a will and, further, that the will attempted to he made was the result of undue influence.
    Revd. 72 App. Div. 615.
    Proceedings upon the probate of a will.
    William S'. Katzens-tein, for petitioner ; Thompson & Koss, Theodore Sutro, Leslie & Miner, Thompson & Maloney, for contestants.
   Thomas, S.

— The decedent was examined on February 6, 1901, by two physicians, both of whom then concluded that she was in an advanced stage of paresis or general paralysis of the insane, a disease which permits no subsequent lucid intervals. One of these physicians had treated her for year's and had long had opportunities for close observation of her condition. The other was an eminent specialist in diseases of this character, and his qualification to form and express an opinion of mental capacity was formally conceded upon the record. The opinion thus formed was not concealed, but was promptly communicated to the person now claiming the bulk of the fortune of the deceased, as residuary devisee and legatee, and to her husband. .Immediately thereafter, and about February eighth, the physician holding this opinion was. refused admission to the house of the decedent and informed that- his services were no longer required. The residuary beneficiary and her husband left their own home in this city and went to reside with the decedent, and their own family physician was called in. On the evening of February nineteenth a conference of most of the parties interested in the resultant will, none of whom are in any degree related to the decedent, was had with the decedent on the subject of making her will. At that time she lay on her bed while the others gathered around her. On the following morning the attorney, who is the husband of one of the beneficiaries and the son-in-law of another, was able to prepare the elaborate will now offered for probate, without further instructions from the decedent, and it was executed by her within fifteen or twenty minutes after it had been drafted. By this will the physician then in attendance upon the decedent was named as executor, and a direction was made that the attorney be employed to conduct the legal business of the estate, and-the two became the principal subscribing witnesses. Other witnesses were found in three servants, two of whom were made legatees and the other was in the employ of the residuary legatee. On March second the decedent died. On all of the evidence I am not satisfied that the decedent was of sufficient testamentary capacity. The evidence offered by the contestants on this issue was most direct and persuasive, and the effort made by the proponent to rebut it was not succéssful. Having in mind the facilities the proponents had for proving by disinterested witnesses acts and declarations of the decedent during the disputed period, showing any intelligence whatever, if such acts or declarations had been performed or made, the character of the evidence on this subject is noticeably weak, unreliable and inconclusive. I may add that some of the witnesses who testified for the proponent on this branch of the case were not believed by me to be trying to tell the truth. I allude particularly to the two young women from Mount Vernon and the woman residing next door to the decedent. On the issue of undue influence I must also determine against the probate. Even if thei mind of the decedent was not utterly gone on the 8th of February, 1901, when the principal legatee and her husband took charge of her, it was certainly weakened so as to make her an easy subject for improper influence. I will find as a fact that such influence was used. The probate of the paper offered will be refused. Costs to contestants will be awarded out of the estate.

Pi’obate refused. Costs to contestants awarded out of estate.  