
    Matter of the Probate of a Paper Propounded as the Last Will and Testament of Josephine M. Lyman, Deceased.
    (Surrogate’s Court—Richmond County,
    November, 1895.)
    Testatrix fexecuted a will by which a life estate in real property was devised to her husband in trust for his benefit and that of their daughter, with remainder over to the daughter; and six days thereafter she executed another will by which the entire estate was devised to him absolutely, he being named as sole executor in both instruments. He caused the first will to be probated, held both wills continuously for upwards of, nineteen years, recognized the daughter’s interest in the property and procured her to join with him in a mortgage thereon. On his death, both wills came into possession of a third wife, who propounded the last will for probate. Held, that, by his acts during life, the husband . and executor surrendered and released such estate of inheritance as purported to have been given by the last dated will, and elected, instead thereof, to accept, and did, in fact, accept a lesser estate under the other instrument, and was thereby estopped, and the proponent, who derives .her interest through and under him, is likewise, estopped from setting up and proving the later dated paper. ' Proof that testatrix was asked if she requested the witnesses to sign and replied by an affirmative sign is not sufficient to prove such request,, where it appears that she was under the influence of opium at the time.
    Application for probate of will.
    
      James A. Bennett, for proponent.
    
      Amasa A. Redfield, for contestant.
   Stephens, S.

Josephine M. Lyman died at the city of Philadelphia, in the state of Pennsylvania, on the 27tli day of December, 1874. She left her surviving her husband, William II. Lyman, now deceased, and her daughter, Jdsephine, the contestant in this proceeding. In tiie month preceding her death the decedent executed two wills, both in the handwriting of her husband, one bearing date the 14tli and the other the 20th day of November, 1874.

By the first will she devised (together with her personal property) all her real property, specifically describing three parcels situated respectively in Philadelphia, Penn., in Newark, N. J., and in Richmond county, N. Y., to her husband, William II. Lyman, in trust for her daughter, Anna Josephine Lyman (now Mrs. Nicholas, the contestant), “ with full power to sell and convey the same, or any part thereof, and invest the proceeds in such property or securities in his name as trustee as he shall deem best for the estate; the said estate not to be delivered up to my daughter during the natural life of my husband, the trustee above named ; and I desire all increase in my estate and all income, over , and above the living and other necessary expenses of my husband and daughter,, to be invested as my said trustee shall see best for -the interest of said estate. On the death of my husband, - all my property vested in him as trustee shall become absolutely the property of my said daughter Josephine.”

By the second will she devised all her property to her husband, the said William H. Lyman, absolutely.

It is not open to question that, under the statutes of this staj;e, the fee of the Richmond county property was by the first will vested in the daughter, Josephine, subject only to be divested by a sale under the power conferred’ on the trustee, and to the .partial, interest of the husband in the rents, issues and profits during his life.

This wilt was, upon the petition of said -W illiaiii H. Lyman, 'duly admitted to probate in the office of the register of wills in the city and county of Philadelphia on the 4th day of January,. 1845, and letters testamentary were on the same day issued to him, and thereafter lie caused an exemplified copy-of the same to be filed in the office of the surrogate of the county of Essex, H.; J., and also in the office of the surrogate of the county-of Richmond, H. Y.‘ He immediately entered into possession of the property. passing under said-will, and from the date of the probate of the same until, the. date of his death, which occurred on the . 8th'day. of •August, 1893, he was, as executor and trustee, in receipt.of the rents? issues and profits thereof, and applied them, under the. terms of this will, to the Use of himself and of his daughter; and, in additiop -to this, he exercised the power of • sale conferred, upon him by this will. It also'appears from the evidence that on one; occasion said William H, Lyman asked his daughter to unite with him in giving a mortgage upon the Hewark property, which she did in the presence of Minnie D. Lyman, the proponent of the will now in. question, andMhat subsequently the said Minnie D. Lyman asked her to give her a. mortgage upon her (the daughter’s) reversionary interest in the Staten Island property to secure her for-money loaned to William H. Lyman. • '

On the 26th day of April, 1882, William H: Lyman married Minnie Duke, the proponent herein. " She was his third wife.: He died on .the 8th day of August, 1893, leaving a las't will and testament, which was duly admitted to probate" in the office of the surrogate of the city and county of Hew York on the 28th day of Hovember, 1894, and on the same day letters testamentary were issued -to Minnie Duke Lyman, the executrix named therein. In -and by said will he' gave to his wife Minnie D.., Lyman all of his'property of any kind' whatsoever that he may own at the time of his death.

On the 22d day of September, 1893, the said Minnie D. Lyman filed with the register of wills in the city of Philadelphia a petition to set aside the.probate of the will of Josephine M. Lyman, proved on the 7th day of January, 1875, and for the probate of the will of said Josephine M. Lyman, dated the 20th day of November, 1874, and on November 6, 1893, after hearing the testimony of the' witnesses and the argument of counsel, it was ordered and decreed by the register that the said petition be dismissed.

On the 28th day of December, 1893, the said Minnie D. Lyman filed in this court a petition for the probate of said will of said Josephine M. Lyman, dated the 20th day of November, 1895.

There are two matters to be determined in this proceeding :

1. Is the proponent equitably estopped from the right to invoke the interference of this court in admitting this will to probate or not ? If not,

2. Has th§ factum of the will been proved to the satisfaction of the court ?

First. It must be remembered that William H. Lyman drew both wills, a period of only six days intervening between them, and that both were in his possession at the time of the death of his wife, Josephine M. Lyman. That he elected to cause to be admitted to probate the one bearing date the 14th day of November, 1874, and qualified as executor and trustee thereunder, and that he proceeded to and continued to administer the estate under said will until the time of his death. That he never showed this paper either to his daughter or to his subsequently wedded wife, the present proponent. That she, the proponent, never saw it until after his death, when she found it in a bundle of papers which he handed her a short while before his death, and that she found the two wills together in the same bundle. At the time of the death of Josephine M." Lyman her husband was the one most interested in her estate. He had both wills in his posséssion.; he was the executor named in both, and it was in his power to offer for probate whichever he saw fit. He chose to accept the less estate rather than the greater. Why should he not be bound by his election i It was his own free act and deedthere was no coercion about it; it was entirely voluntary on his part. Then why, it may be asked; did he elect to take a life estate only when he could as readily have taken an absolute estate ? The reason is made plain by the testimony of the proponent herself,, who says he had mentioned the fact of a last will, but said he was afraid. to 'probate it lest a prior wife, from whom' he was divorced, might claim an interest in the property,

It is claimed on the part ;of the proponent that there is no election here, and that,, even "though there were, no forfeiture follows, hut simply a question of compensation, and also that there is no estoppel, for the reasons that there was no incon:, sistency in the act'of Mr. Lyman because there was nothing, that he did under the prior will that he could not have done under the 'later will, and whatever was done by Mm in no wise prejudiced the contestant.

Whatever the lights of the proponent are in this proceed- ' ing, they are derived through and , under William H. Lyman, so that she stands- before the court in 'precisely <the same posi-, tion that he would had he instituted it in his lifetime.- By his acts during life he surrendered and.released the 'estate' of ' inheritance purporting to have been given by thq paper now propounded, and .elected instead thereof to- accept, and did, as a matter of fact, accept a lesser estate under another instrument. Moreover, it is iii evidence that repeated representations were made by him to his daughter, the contestant, that : the fee of the real property was in her, and that, relying upon these representations, she obligated herself personally for $3,800 for his benefit, ánd secured- the obligation by a mortgage upon a portion of the ¡real property devised to her by the will which it is now sought to overthrow.

., It is a wbllrsettled principle of equity that when a' party has by his declaration or representation- induced another to act in a particular manner, he will not afterwards be permitted to deny the truth of. his declaration, if the consequence would be to work an injury to such other person. See Matter of Rusko, 34 Hun, 334, and cases cited. The proponent seeks to take this case out of the operation of that principle by showing that the mortgaged premises were worth at least the amount of the bond and mortgage, and, consequently, the contestant was not injured. This is not an answer to the contention of the contestant. The mere likelihood that there will be no pecuniary loss does not take away from Mr. Lyman’s conduct its effect of an equitable estoppel.

The case of Bates v. Gillett, 132 Ill. 287, would seem to havé a direct application. The plaintiff, who claimed to have an interest in the lands in question, had -held himself out to be the guardian of certain infants under the will of their grandfather; for twenty years he managed the property, dealt with it and leased it in his name as guardian. During all that time the children had understood that they were the owners, deriving their title under the will mentioned, and not until after they had contracted to convey a good title did the plaintiff assert his claim. The court said that it would be grossly inequitable to now permit the assertion of title by the complainant. At least, he does not come into equity with conscience, good faith and reasonable diligence. • His delay is wholly unexplained, and it must be held that his acquiescence for the length of time indicated amounts in equity to a complete bar to the relief sought by complainant’s bill.”

In Foote v. Foote, 61 Mich. 181, it was held that when fourteen years have elapsed since the death of the testator, the will being notoriously in existence, and accessible throughout that time, it is too late for one of the heirs who had agreed to another scheme of distribution to prove the will1 and claim benefits under it inconsistent with his former agreement. A second will is only provable on an allegation that it has been discovered since the probate of the first will, and that by it other persons besides those who took under the first will are entitled to somo share of the estate.

In the case at bar the will now propounded was never lost or mislaid, and. was ■ not, discovered, because it was in the possession of Mr. Lyman, the sole beneficiary, or Under his control, from the time- of its execution until the May of his death, a period of almost nineteen years. .. If, therefore,' Mr. ' Lyman would have been estopped, the present proponent, 1 claiming no more rights than he had, is now subjected to the same principle of equity.

Second. Tinifacimn of the paper now propounded having-been put in issue by the answer of the contestant, it is not alone sufficient that the formal execution and publication oT the same- be shown, but the questions whether- the testator intended to make the particular will now .offered' for probate; whether it conformed to her real wish, and whether in fact ■this jiarticular instrument is her will, are all elements of the ' facfrwm, of the will which are to be determined, by á considerate examination of all the facts; and circumstances attending the transaction. ;

This will was witnessed by Joseph. M. Cowell and Herbe'rt H. Brower. Joseph M. Cowell died hefoi-e the same 'was- ' offered for probate, leaving1 Herbert H. Brower, not only the sole surviving witness of the same, but also the only person living who was in the room at the time it was exécüted. He ..testified that previous to the execution of this will the execu- • tf-ix, who was his sister, “ made -a remark to me that her hus- . band, was not quite satisfied with the other will that was made- and she would have to make another. Q. Did you have any conversation with her with reference to'Josie (her daughter,' the contestant), on the subject of the will % A. I made the remark to her that I thought Josie ought to be taken care of and looked out for. Q. What did she say, if anything ? A; She made no reply at that time, but, after this will wau executed, she said that Josie would have to take her chalices with the rest of -the world.” -

v All this was said within six, days from the time that the testatrix had made, while on her deáth bed* the most natural .and1 just- will for any mother, 'leaving a husband and only child twelve years old, to make.

The circumstances surrounding the execution and publication of the will were these: The will is in the handwriting of William PI. Lyman'. Mr. Lyman called the witness Brower into the room. The witness Cowell finally came into the room. He liad been informed what he came in for by Mr. Lyman. Mr. Lyman then took the paper out of his pocket and read it over. Then, together with Mr. Brower and Mr. Brower’s father, who was present, he bolstered his wife up in bed. He then pint a pen in Mrs. Lyman’s fingers and held' the ink bottle in his hand. After the paper was signed he took it away from her and passed it over to the witnesses to sign. After they had signed it was passed back to Mr. Lyman. The witness Brower testified that the testatrix signified her acceptance of the will, and when ■ asked by him how she did this, other than by putting her name to it, he replied by Mr. Lyman asking her if that was her last will, in reply to which she bowed her head; and also, in reply to a question, that she said nothing to the witnesses specially. This is the testimony as to the execution and publication of the will by the only living witness. This witness also testified, on his direct examination, in answer to the question whether, at the time she executed the instrument, she was in her right mind,-that she appeared to be. She was more or less under the influence of stimulants to quiet her pain,” and on cross-examination he said he meant by stimulants “ opium suppositories.” In answer to the question, “ Do you know whether or not she was under the influence of these opiates at the time she executed this will ? ” he testified, “ In my opinion no more than she was at any other time,” and to the question, “ She was as much- under the influence of opium then as she was at' any other time ? ” he testified, I think so.”

The contestant testified that she was in the house in Philadelphia -where this will was executed. That for some time previous, and continuously until the time of her death, opium suppositories were administered to her mother, the testatrix, and, in addition thereto, a solution of morphine alternately every two hours ; and that the effect of these opiates upon her was “ they always clouded her,” and “ seemed to produce a sort of ,stupor.”

With- these facts confronting it, the court is asked to hold that the factum of the will has been proved, and that the same he admitted to probate. Leaving out of consideration the question of undue influence, as well as the testamentary capacity- of the decedent, the most that could be claimed by the proponent is a presumption that the statutory formalities in the execution, publication and attestation of the paper now propounded were complied with. Such a, presumption may arise and the court be justified in concluding that every essen- - ' tial requirement was complied with, as witness the case of the testator, the late Homer A. Nelson, 141 N. Y. 152 ; but whether such a presumption arises in any particular cas.e depends upon the facts of that case. In the case at bar I cannot do otherwise than find that there is not .only an utter failure of direct proof to establish the statutory formality of a request by the decedent to the witnesses to sign their names as such, but that, on the contrary, the testimony forbids the finding of any presumption that there was such a request

The petition must be dismissed.

Decreed accordingly.  