
    Matter of the Probate of the Last Will and Testament of Owen Duffy, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      October, 1906.)
    Wills—Disposal by will—Testamentary capacity—Evidence ob facts-ESTABLISHING OB NEGATIVING CAPACITY—TESTIMONY OF SUBSCRIBING WITNESSES; FACTS IN GENERAL HELD INSUFFICIENT.
    Where all the circumstances surrounding the execution of an alleged last will and testament offered for probate thirty years after its alleged execution are suspicious and misleading and create in the mind of the surrogate the fixed belief that, despite the testimony of the two subscribing witnesses that it was properly executed, said instrument is not the will of decedent, probate will be refused, although one of the subscribing witnesses is a lawyer • and drew the will.
    Where it appears that at the time of the execution of said instrument the testator was in the last stages of senility, his sole occupation being to watch a flock of geese to prevent their wandering away; that one of the subscribing witnesses recalls nothing of the transaction involving the execution of the intrument except that he signed it and that “everybody seemed satisfied with what, was being done”; that the lawyer who drew the will and was the other subscribing witness described what took place at its execution with the same minuteness as if the transaction had occurred but a few days before and his testimony as to the desires of testator are in direct contradiction of the will; that testator’s, children during all the years since his death have acted upon the assumption that he died intestate, making transfers between themselves of their undivided interests in the real estate of which their father died seized and disposing of his personal estate, and the-will is only offered for probate When litigation ensues between proponent and the- representatives of her deceased brothers and sisters, probate will be refused.
    Testimony of the proponent who took the will shortly after its ex-execution and put it in a box that, from the time she received the will until a little while before it was offered for probate, she-never opened the document or looked to ascertain its contests held, not to be credible.
    Reversed 127 App. Div. 174.
    Proceeding upon the probate of a will.
    
      C. P. and W. W. Buckley, for Margaret Duffy, proponent; Phelps, Evins & East, for Andrew Dittrich, contestant; Erancis G. Oaffey, fór Joseph M. Dittrich, contestant.
   Church, S.

The will of deceased, which is now: offered for probate, was drawn over thirty years ago'and has, ever since the -death of 'the testator, remained in the possession of the propon-ent. Both the subscribing witnesses are alive and gave testimany in a general way conforming to the requirements of the statute; and the proponent insists, therefore, that enough has been shown to justify the admission of the will to probate.

The various cases arising upon probate matters naturally 'serve as illustrations of the main principles applicable to the proof of wills; but it has 'been truly said that “ no will has a brother ” and, therefore, that no case can be regarded as absolutely decisive of any subsequent matter. The underlying es-sential is that the evidence shall satisfy the mind of the surro■gate that the requirements of the statute have been complied with. This, in my judgment, does not compel the surrogate to "follow blindly the testimony of two witnesses as to its proper ■execution, where all the circumstances are suspicious and misleading and create in his mind the fixed belief that, despite such testimony, this will is not the will of the decedent. This is precisely the situation of the ease at bar; and it is my opinion, therefore, that the document offered as a will should not be admitted to probate. The facts that lead to this decision are as follows:

The proponent claims that, the factum of the will having 'been shown by the subscribing witnesses, the burden of proof is shifted to the contestants; but to this the contestants respond in my judgment correctly—that the delay in the presentation of this will for probate is not due to any fault or blame on their part or on the part of any person other than the proponent and "that, by reason of such delay, the ordinary opportunity which -a contestant would have to obtain evidence on the subject and to produce witnesses together with the opportunity to test closely the knowledge and memory of the witnesses actually taking the stand has been almost entirely destroyed, and that, although they are unable to produce direct proof on the subject, all the facts and circumstances lead irresistibly to the conclusion that such will should be refused probate.

The testimony of one of the subscribing witnesses to the will shows that he recalls practically nothing of the transaction involving the execution of the alleged will save that he signed the document. Instead of having the slightest remembrance as to the testamentary capacity of the deceased, or as to what the latter did or said on the occasion in question, his only evidence, apart from his own signature to the paper, was to the effect that “ everybody seemed satisfied with what was being done.” This would always be the case where a number of conspirators were inducing a person to make a will.

The testimony of the lawyer who drafted this will, who was also one of the witnesses to its execution, is very remarkable. Without going over it in detail, it may be said, generally, that he describes with the same minuteness what took place at the time of the drafting and execution of this alleged will as if the transaction had occurred only a few days before his appearance on the witness stand. This of itself would excite suspicion, as it is beyond belief that any attorney, throughout a busy practice, would be enabled to recollect the details of a conversation had with a client over thirty years ago. That this cannot be the case is shown by the fact that, when the witness pretends to describe the desires of the testator, his testimony is in direct contradiction to the will itself. The importance of this to my mind is that it establishes that his memory upon this subject is false; and if it be faulty with respect to the provisions of the will which he purported to know, how can it be said not to be faulty with respect to the manner of its execution ? It is not pleasant to have sinister suspicions as to the testimony, of any witness; but, where the witness displays what would be an astonishing feat of memory, if correct, and it is thus shown to be false, the only deduction is that he falsified for a purpose.

There 'are cases holding that, where witnesses have forgotten' the circumstances other than the fact that they recollect acting as witnesses to the will, then a properly drawn attestation clause will suffice to justify the admission of the will to probate. But it does not seem to me that the principle of these cases can be used for the benefit of the proponent, 'as here the witnesses have not claimed that their memory failed them in the matter, other than that the signatures are theirs and that they remember they were present at the execution of a will; but it is apparent that they have sought to make assurance doubly sure by not only testifying that they recall the transaction but also its details. Therefore, it is but natural to infer that they remember absolutely nothing on the subject and that their entire testimony should be rejected.

There are other circumstances in the case which strongly corroborate this view of the occurrence. The testator at the time in question was ninety-eight years of age. That he was manifestly in his dotage is shown by the fact that he attended to no business matters whatever, his sole occupation being to watch a flock of geese to prevent their wandering away. The evidence of such persons as recall the old man’s condition at that time tends to show that he was then in the last stages of senility. The action of the proponent and such of the children as benefited by the will, living at the death of the testator, strongly confirms this theory and also renders probable the theory that there was an implied understanding among the heirs at law of the deceased that this alleged will was defective and should never be offered for probate, as the children of the deceased have all these years acted upon the assumption that he died intestate. Deeds have been made between them of their undivided interests in the real estate left by their father and disposition has been made of the personalty; and the proponent only presents this will, when litigation ensues between her and the representatives of some of her deceased brothers and sisters.

If this will was valid and effectual, it is hard to understand why she should have obtained the deeds in question or why she should have withheld the presentation of the alleged will until the commencement of the litigation referred to. Appreciating this fact, she endeavors to rid herself of the suspicion thus aroused and swears that, although she knew that the paper in question was intended to be the last will of her father, and although she took it after its execution and put it in a box, from the time she received it, shortly after its execution, until a little while before it was offered for probate, she never opened the document or looked at it to ascertain its contents. I am frank to say that I cannot believe this statement. Without following the common assertion as to the curiosity of the female sex, it is assuredly beyond the realm of probability that any person would receive a will under these circumstances and keep it for thirty years after testator’s death without ever having once opened it to see what it contained. If this statement is untrue, and if this woman, therefore, has deliberately told this untruth, it must be from a motive or disposition to hide some fact the disclosure of which she fears will be disastrous to her case, and thus the fact would naturally be either knowledge that the will in question was invalid or that she 'herself had admitted to her brothers, who are now dead and gone, that it was invalid and that there was an agreement that it should not be presented for probate.

All these circumstances combined, in my mind, are sufficient to overcome the mere attempt at the proof of the factum of the will, as contained in the testimony of the subscribing witnesses; and, as the evidence fails to satisfy me that the paper was legally •and properly, executed, I will deny to it probate.

Let findings and decree be presented accordingly.

Probate denied. .  