
    New York County.
    Hon. D. G. ROLLINS, Surrogate.
    July,1884.
    Cooper v. Benedict. In the matter of the application for revocation of probate of the will of Tunis Cooper, deceased.
    The enactment of Code Civ. Pro., § 2622 has lent a new sanction to the doctrine enunciated in Delafield v. Parish, 25 N. Y., 34,—that the proponent of a will is bound to prove to the satisfaction of the court that the paper in question declares the will of the deceased, and that the supposed testator was, at the time of execution, of sound and disposing mind and memory.
    Under Code Civ. Pro., § 2652, requiring the Surrogate, if he “ decides that the will is not sufficiently proved to be the last will of the testator,” etc., to make a decree accordingly, the same rule is applicable where the proceeding is, in form, one to revoke a decree of probate already granted.
    Application by Tunis B. Cooper and Allen B. Cooper, sons of decedent, for a decree revoking the probate of his will; opposed by Eliza Cooper, widow and executrix, and Eli Benedict, executor thereof. The facts are stated in the opinion. '
    A. J. Rogers, for petitioner.
    
    Amos G. Hull, for respondents.
    
   The Surrogate.

“Before admitting a will to probate,” says § 2622 of the Code of Civil Procedure, “the Surrogate must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will and the validity of its execution.” The enactment of this • statute has given a new sanction to a principle which has been frequently asserted by our courts, and which, in Delafield v. Parish (25 N. Y., 34), is thus enunciated :

“In all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question declares the will of the deceased, and that the supposed testator, at the time of making and publishing the document, was of sound and disposing mind and memory......If, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question contains the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled to probate.”

These doctrines are applicable to the case at bar, although in form this proceeding is not a proceeding for probate, but one to revoke probate already granted (Code Civ. Pro., § 2652; Collier v. Idley’s Ex’rs, 1 Bradf., 94).

To the voluminous testimony taken before the referee, and submitted for my consideration, I have twice given attentive reading. As a result, I am bound to declare that I am “ not judicially satisfied that the paper (here) in question contains the last will of the decedent.” I have grave doubts whether, at the time of its execution, Tunis Cooper was mentally competent to make a will; whether he was capable of sufficient thought, reflection and judgment to know what property he had, and intelligently decide and declare wdiom he would make, and whom he would refuse to make, the objects of his testamentary bounty. His bodily and mental condition on April 2d, 1881, and thenceforward for twelve days, to and including April 14th, 1881, when he executed this alleged will, has been the main topic of controversy in this proceeding. As to these matters, the evidence is very conflicting. Statements of some of the witnesses are diametrically opposed—and that, too, in important particulars—to statements of others, and the value of much of the testimony for the will, and much of that against it, is seriously impaired by the fact that it was given by witnesses whose interests and sympathies are greatly involved in the contest. Outside the region of conflict, there is one circumstance which has greatly impressed me, and, as much as any other, has excited my doubts of decedent’s competency. He had three sons, Tunis, Allen and Franklin, all of whom were members of his household. Tunis was more than thirty years of age; Allen was twenty-two, and in business with his father as a wheelwright; Franklin, above ten. These sons are mentioned by name in the will, and so mentioned as necessarily to involve the notion that two of them, at least, and perhaps all three, are yet in their minority.

The fourth clause of the paper provides that, upon the death of the decedent’s wife, and the consequent termination of her life estate in certain real property, that property shall be sold by the executor, and the proceeds divided into three equal parts, and paid to my three sons, Tunis, Allen and Franklin, as they shall respectively arrive at the age of twenty-one years.” The executor is subsequently instructed to invest the share, to which either of my sons may be entitled during Ms minority, on bond and mortgage,” etc. •

The interest on this investment is directed to be paid, semiannually, to “the lawful guardian of my sons, for their benefit during their minority.” The eleventh clause is, in part, in these words: “Ihereby appoint my friend, Eli Benedict, testamentary guardian of my minor children during their minority.” The twelfth clause provides for the sale of certain New Jersey realty, and for the division of the proceeds into four equal parts. One of these parts is given to the widow, and the others “to my three sons, Tunis, Allen and Franklin, as they shall arrive at the age of twenty-one years.”

Now, it appears, by Mr. Meyer’s testimony, that every word of this instrument was carefully read to the testator, and afterwards carefully read again. Some portions, indeed, seem to have been three times called to Mr. Cooper’s attention. It is certainly strange, upon the assumption that he had sufficient possession of his faculties to make a will, that he did not, at one time or another, of the three readings, make known the fact that only one of his children was under age. If the will had contained but a single intimation that he had more than one minor child, and if it had been read to him but once, his silence might not be deemed specially significant; but in at least six instances it conveys a distinct intimation that, besides Franklin, the testator had certainly one child—perhaps two children—not yet of age; and each of these six intimations was thrust at least twice upon the decedent’s attention. His failure to suggest a change, in this regard, in the phraseology of the will, or even to make any comment upon the evident error of its draughtsman, is, in my judgment, a circumstance of the gravest importance. It indicates that the dece- . dent’s mental strength had so far abated that he had actually forgotten that all his children hut Franklin had come of age; or it shows that his mind was so far away from the business of will-making as to render it unsafe to treat the paper here propounded as an embodiment of his testamentary purposes.

A decree may be entered, granting the petition for revocation of probate.  