
    Matter of Clark.
    (Surrogate’s Court—Rensselaer County,
    August, 1893.)
    A competent testator has a right to bestow his property as he pleases, by will or otherwise, and the law is careful to guard that right.
    The fact that a testator gives a large portion of his estate to a stranger to-the exclusion of those who might be the natural objects of affection, is-not sufficient ground to refuse probate to his will. '
    An instrument will not be refused probate as a last will and testament,, however sudden and complete may be a change of testamentary disposition, provided the change was made by a competent testator, for reasons to him satisfactory.
    The testatrix duly executed two wills within ten days of her death, when in a feeble condition and very sick. By the first will, her husband was-the sole beneficiary; by the last will, he was given some furniture, and all the rest of her estate she bequeathed to one 0., whom she had called cousin, though in fact he was no relation, but simply a friend of her former husband, and upon whom she had been accustomed to-rely for advice in the management of her business. It appeared in evidence that testatrix had been married to her second husband but a short time; that he was a drinking man, and when drunk was noisy and: abusive; that they had quarreled constantly until her death; that 0., for many years prior to and after her marriage to her last husband, had' been intrusted with her business affairs. Both before and after the-execution of the first will, the testatrix expressed an intention of giving her property to 0. Held, that as it satisfactorily appeared that at the-time of the execution of the last will that testator was of sound mind and memory, and free from all restraint and undue influence, the same-should be admitted to probate.
    
      This is an application for the prohate of the will of Mary A. Clark, deceased. Its prohate is contested on the grounds : First. That the instrument was never executed by the deceased (that she was at the time of its alleged execution incompetent from illness to execute the same), and, second, that if the instrument was executed bv her its execution was o V procured through fraud and undue influence. The facts appear in the opinion.
    
      Clarence E. McNutt, for the executor.
    
      Robertson & Batchelder and John W. Roddy, for contestant.
   Lansing, S.

Mary A. Clark died on the 20th of October, 1892, at her residence in the city of Troy. At the time of her death she was about sixty-five years of age. The deceased left her surviving no relatives or next of kin. She was married to Colville G. Clark on the 7th of October, 1889, and lived with him up to the time of her death, a period of about three years. Clark had previously been married, and had several grown children ; and she had also been previously married to a man by the name of Ayers. For about two years prior to her death, she had kept a small grocery in a portion ■of the house occupied by her and her husband.

She had been ailing about a year, and for several weeks preceding her death was confined to her bed. The cause of her death was atrophy of the liver with inflammation of the stomach. She had been under the care of a physician for about a month prior to her death. It wras a case of gradual decline; she apparently died from exhaustion. For a number of days prior to her death she was able to take but little nourishment, and showed little interest in anything. “Yet she knew everything that was going on, and would answer any question in an intelligent manner,” so testified her physician, who visited 'her on the thirteenth and eighteenth of October prior to her death on the twentieth. She left an estate consisting of household furniture, and $700 or $800 in the Albany Savings Bank.

It appears that on the 10th of October, 1892, just ten days before her death, she executed an instrument in due form, giving all her property to her husband, and appointing him executor in her will. The will was drawn by a careful and intelligent lawyer, Mr. Michael H. Myers of this city, and was undoubtedly duly executed.

Considerable testimony was given tending to show that her husband was a person of intemperate habits and irascible temper, and that he had treated her very ill during their married life, and especially during her last illness, when he had substantially sole charge of her. It also appeared that he had endeavored to have her make a will in his favor during-the latter part of her illness; that he at times persuaded, and at other times resorted to threats to accomplish this purpose.

Mr. Myers, the draftsman and witness to this instrument, states, that although she was “ feeble and very sick,” and her husband came in once when “ he thought he was under the influence of liquor ” (at the time of the execution of the will), yet he was of the opinion that she made the will, w-hich he drew, voluntarily; that he inquired of her carefully, when alone with her, as to the disposition of her property, and he observed no appearance of restraint or duress.

I have reached the conclusion, after considerable hesitation,, that the deceased had yielded her assent to the disposition of her property made in said instrument, whether for the sake of purchasing her peace for the remainder of her days, or because she had concluded upon the whole, it was best tO' make that disposition of her property, and I am inclined to hold the instrument sufficiently proven to admit the same to probate, unless it was revoked by the due execution of the later instrument offered for probate herein, but I think the assent given rvould be likely to be withdrawn for slight cause.

On the 15th of October, 1892, five days after the execution of the former instrument, another instrument was drawn (the instrument here offered for probate) by Joseph G. McNutt of this city. Mr. McNutt went to the house of deceased at the request of William Myers, who was the landlord, and who, together with his family, occupied the upper floor of the house in which the deceased lived at the time of her death.

By this instrument, after giving her husband all her furniture (with the exception of a desk), she gave her entire estate, which consisted of the $700 or $800 in the savings bank, to one James Cowen, a person who was not a relative, though she called him, at times, cousin, but who was a friend of hers, and had been also of her former husband, prior to her marriage to Mr. Clark. It appeared she was accustomed to rely upon him for advice in the management of her business. This will was witnessed by Libby Shaw and Jennie Cowen, a married and an unmarried daughter of Mr. Cowen.

This instrument is contested upon the ground that it was never in fact executed by the deceased; that at the time of its alleged execution, the deceased was too ill to execute the same; in other words, that the instrument was never presented to her for her signature; that it is in fact a forged instrument.

I am satisfied that this defense cannot be maintained. Five persons, several of them among the best appearing and most credible witnesses who were called to testify upon the hearing (the two witnesses to the will, Mr. McNutt, the draftsman, and Mr. William Myers and Mrs. Myers), testified upon the subject, either of the execution of the will or the presence of the witnesses at the house upon that occasion and for that purpose.

The defense is sought to be maintained by the testimony of George Clark, son of the contestant, and Maggie Reinhardt, a sister of Clark’s first wife.

I was not favorably impressed with the appearance or testimony of either of those witnesses upon the hearing, and especially that of witness George Clark. Mrs. Reinhardt, who was working for the deceased at the time, admits that she left the premiees and went home to get her husband’s supper about the time the other witnesses testify that the transaction took place.

The weight of testimony is very greatly in favor of the execution of the will by the deceased, and at the time and in the manner stated by them.

The testimony of George Clark and Maggie Reinhardt and her daughter, who came to the house on the sixteenth, the day after the later instrument was • executed, was relied upon to show that Mrs. Clark was substantially in a comatose condition on or about the fifteenth of October, and was unable to understand and execute the instrument in question.

But the same witnesses who testified in respect to the execution of the will, and also several others that visited the deceased during her illness, testified in substance that while she was very weak and sick, yet she was able to understand what was said to her and gave intelligent answers to questions addressed to her. And it further appears that on the evening of the fifteenth -of October, Mr. Cowen brought her some money which he had drawn from the bank at her request, and gave it to her, saying that he didn’t want to keep it any more.” She said in reply, I can mind it as well as anybody.”

I am satisfied from the testimony that the deceased had sufficient mind and memory to transact the business which she undertook to do, by the execution of the instrument in •question.

There is no evidence in the case of any undue influence exercised by Mr. Cowen, either through himself, his family or his friends, to produce the wil'l in his favor. Although he ■called upon the sick woman occasionally during her illness it does not appear that he saw her alone, or that he exercised, or attempted to exercise, any influence or employed any means himself or through his friends to induce her to make a will in his favor.

Undue influence must be proven. It will not be presumed from interest and opportunity. There is no proof of undue influence in this case.

But the rule is invoked by the contestant, that where it is sought to establish a later "will by overthrowing a prior one, made by the testator when in health, under circumstances of deliberation and care, and which is free from all suspicion, when the subsequent will was made in feeble health and in hostility to the provisions of the prior one, such prior will must prevail, unless the subsequent will is so fully proven to speak the testator’s intentions as to leave no doubt in the mind of the court upon the subject. Delafield v. Parish, 25 N. Y. 35 ; Tyler v. Gardiner, 35 id. 559.

The rule invoked is a salutary one, and is well established, but it has no application to this case.

The prior will was not made when the testatrix was in good health, and not made under circumstances of care and deliberation, nor is it free from all suspicion.

The testatrix was very feeble and ill even at the time of the making of the former will, and it is not by any means free from all suspicion of undue influence upon the part of its principal beneficiary. Besides, I am satisfied that the later instrument reflected the will of the deceased at the time it was made.

Again, the contestant invokes the rule 'that the law looks with sxispicion and disfavor upon gifts made by will to a stranger, especially where to effectuate such gift requires the revocation of a will giving the property to persons who are the natural objects of testator’s bounty, such as in this case her husband.

It is undoubtedly true that in such a case the law requires ample explanation of the motive for the change in the disposition of the property, and such explanation is abundantly found in the facts and circumstances of this case.

Notwithstanding- the suspicion disclosed by the evidence in. this case, that the- prior instrument was the result of undue influence upon the part of the beneficiary, the husband, yet I hold that she finally yielded her consent to that disposition of her property, but it was an assent that would require but slight circumstances to modify ol- change it.

The testatrix -obviously had little or no affection for Clark, and if half the testimony is to be credited he deserved none. They had been married but a short time; she said he deceived her in marrying him. It appeared that they quarreled constantly during her .health, and the quarrel never ceased till her death. Clark was a drinking man, and when drunk was noisy and abusive.

She stated to Mrs. Myers, who appears to have befriended her, and who visited her several times a day during her illness, and carried her delicacies and even food, when her husband failed to provide for her, and who appeared to be an intelligent and credible witness, that Clark wanted her to make a will, and she made it, but she was not satisfied. He toas going abound having a good time? This was two days after the former will was made. Again, she testifies deceased “ told me she wanted my husband to get her a lawyer to draw her will, because Clark was having a good time after her will was. made.” It is not very difficult to divine what the deceased meant by saying that Clark was having a good time.”

Besides that, while she distrusted and quarreled with Clark,, her husband, and did not trust him with her business even while in health, she confided in Mr. Cowen and intrusted him with her business, and had for many years prior to and after her marriage to Clark. Indeed, it appears that by the last instrument she was only carrying out a long and previously-declared intention to give her property to Mr. Cowen.

One of the witnesses testified that the deceased prior to her marriage to Mr. Clark, showed her a paper which she did not read, but which deceased said was her will, and that by it she had given all her property to Mr. Cowen, who was a friend, of hers and her former husband.

Other witnesses testified that the deceased expressed an. intention of giving her property to her friend, Mr. Cowen, during her illness, both before and after the first instrument was made.

From all this, an easy and satisfactory explanation of the reasons which led the deceased to change her will may be readily discerned.

An instrument will not be refused probate, however sudden and complete the change of testamentary disposition may be, provided the change was made by a competent testator, for-reasons which were to him satisfactory. Matter of Will of Green, 67 Hun, 527. A person of sound mind and memory has a right to bestow his goods as he pleases, by will or otherwise, and the law is careful to guard that right.

Neither will the fact that the instrument presented for probate gives a large portion of the estate to a stranger, to the exclusion of those who were the natural objects of her bounty, be sufficient ground for refusing probate to the instrument. Matter of Williams, 46 N. Y. St. Repr. 775.

The real question in this case is not as to which of these wills is most satisfactorily executed, or which is most equitable-in its provisions, although these are considerations that have weight upon the general issue; but the question rather is, was the deceased at the time of the execution of the last instrument of sound mind and memory, and free from all restraint or undue influence % If it satisfactorily appears that she was, then the later instrument, being the last testamentary disposition of her property, must be admitted to probate.

From the best consideration I have been able to give tin's, case, I am satisfied that the instrument bearing date the 15th of October, 1892, was duly executed by the deceased, and that she was at that time of sound mind and memory, and free from all constraint, and I, therefore, direct that it be admitted to probate. Let a decree be drawn to that effect.  