
    In the Matter of the Probate of the Last Will and Testament of Louisa M. Ramsdell, deceased.
    
      (Surrogate’s Court, Monroe County,
    
    
      Filed April 9, 1888.)
    
    1. Will — Probate of — Testamentary capacity must be proved bt PROPONENTS.
    The proponents of a will, in addition to proof of the due execution of the will must show affirmatively before resting their case, that the testator was of sound mind and free from undue influence, at the time of the alleged testamentary transaction.
    2. Same—Testamentary capacity—How proved.
    The necessary prima facie proof may be furnished by the attesting witnesses to the will, but if they express no opinion, or an unfavorable one, the fact of sanity may still be presumptively established by the testimony of the subscribing witnesses, or of other persons, to facts and circumstances, from which capacity may be fairly and legitimately inferred.
    Louisa M. Ramsdell died at Rochester, .R. Y., on January-17, 1888, leaving two adult children surviving her, both of whom are insane.
    Her alleged last will and testament, dated July 16, 1883, was duly propounded for probate in the surrogate’s court of Monroe county. This instrument directed nearly the whole of her estate, amounting to over $100,000, to be expended in the erection of a tomb for herself and family.
    Probate was contested by the committees of the insane children for unsoundness of mind.
    The sole surviving witness to the will was Mr. Camp, and he was the only person examined on the trial herein. He testified to the conversations and circumstances attending the drawing and execution of the will, and that it was executed according to law. He also stated that the decedent understood the contents and provisions of the paper, but that her. mind was unsound at the time she executed it.
    The judgment rested on this testimony. The contestants then moved to dismiss the proceedings for failure to prove mental competency.
    
      John M. Davy, for the proponents; John Van Voorhis for the contestants.
   Addington, S.

This is a motion to dismiss the proceedings of the proponents, for failure to prove the mental competency of the alleged testatrix.

The motion was first made at the close of proponent’s case, and was denied off-hand, without examination of the testimony given on the hearing, and with the expectation that the production of witnesses, on both sides, would follow; but the fact that counsel appeared between the time of the informal argument and the day fixed for taking testimony, and requested that further arguments be heard, and that briefs might be submitted, leads me to. infer that the parties wish the whole matter disposed of by the decision of this motion.

. The motion rests chiefly upon technical grounds, and relates to forms of procedure rather than to the real merits of the issue, formed 1by the pleadings herein, which issue is the sanity of the decedent. No witness, from the city in which Mrs. Eamsdell had so long lived, and in which she had successfully transacted the business of her large estate, has been called to give evidence as to the competency, or incompetency, of the deceased, to make a will. The parties to this contest have preferred to subordinate the principal question to a controversy over the order of proofs and methods of procedure; and the only person examined in the proceeding is the survivor of two attesting witnesses, who, at the time of the execution of the will, was a stranger to the decedent, and entirely unacquainted with her habits, character, feelings and capabilities.

It is needless to say that such testimony does not furnish a satisfactory basis for a fair and an intelligent judgment on the main question in issue, and that, in deciding this motion, I do not pass upon that question, except as it is incidentally involved in the technical issue raised by this motion.

The proponents’ position on the motion is that they are only required, in the first instance, to prove the formal execution of the will, and that such proof being made, a legal presumption of the sanity of the testator then arises, on which proponents may safely rest until the contestants have given evidence tending to show the insanity of such testator; to which evidence the proponents may then oppose such evidence as they may have in support of decedent’s soundness of mind.

The contestants insist that this position is incorrect, and that the proponents, before resting, must prove, prima facie, not only the formal execution of the will, but also the decedent’s soundness of mind, and freedom from restraint; and that the necessity for furnishing such proof is the stronger in the present case from the fact that the only witness sworn testifies that, in his opinion, the decedent was of unsound mind at the time of executing the alleged will.

This precise point has seldom been discussed in the reported decisions of this state. The usual practice in will contests, involving the sanity of the testator, in our surrogate’s courts, is, for the proponent to prove the formal execution of the will, and to show, prima facie, by the attesting witnesses, the decedent’s age, mental competency and freedom from restraint. The contestant then offers his evidence in.support of his allegations of unsoundness of mind, and the proponent closes with testimony in reply, and in support oi the allegations, which he is bound to maintain.

On the whole issue, made as just stated, the courts of this state have frequently declared that the burden of proving a decedent’s unsoundness of mind is on him who asserts the existence of that unnatural condition. This doctrine is formulated in Delafield v. Parish, 25 N. Y., 97, and has been often reiterated by all of our courts.

It must be observed, however, that this is a very different question from the one here presented; for the contestant has as yet offered no testimony, and maintains that the proponents must fail for the lack of proof of a material fact.

This distinction is clearly drawn, in the opinion of the general term of the third department, in Harper v. Harper, 1 Thompson and Cook, 355, m which the court says:

“ It is the established law of this state that the legal presumption, to begin with, is that every man is compos mentis, and the burden of proof that he is non compos mentis, rests on the party who alleges that unnatural condition of mind existing in the testator. But it is also the rule that, in the first instance, the party propounding the will must prove the mental capacity of the testator.”

In Delafield v. Parish, 25 N. Y., 34, Judge Davies also says:

“ The party propounding the will is bound to prove to the satisfaction of the court that the paper in question does declare the will of the deceased, and that the supposed testator was, at the time of making and publishing the document, propounded as' his will, of sound and disposing mind and memory.”

In Kingsley v. Blanchard, (66 Barb., 317, 322), a case in which only the subscribing witnesses to the will were sworn, and_ where neither of them stated whether or not the testartrix was of sound mind, after some discussion of the testimony as to the execution of the will, and a quotation of the provisions of the Revised Statutes regulating the probate of wills, the general term say:

“ The question then is, whether the testatrix is shown to have been a person of sound mind within the meaning of these terms when applied to testamentary dispositions of property. This fact must be proved; and the burden of its proof rests on the party propounding the will.” * * * .

“If the legislature had intended (by the provisions of the statutes above mentioned), that the surrogate might be satisfied with presumptive proof, it would never have been guilty of the folly of requiring a fact to be proved which the law presumed to exist.”

Again in Miller v. White (5 Redfield, 321), it is said:

“The burden o£_ proving unsoundness of mind is on the contestant, but it is expected of the party offering a will for probate that he "will examine the subscribing witnesses as to the condition of the testator’s mind.”

In the Matter of the Will of Cottrell (95 N. Y., 336), the court of appeals say: “ The proponent has the affirmative of the issue, and if he fails to convince the trial court by satisfactory evidence that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will.”

In the only recent work on surrogate’s Practice in this state, Redfield’s Law and Practice of Surrogate’s Courts, (3ded.), 216, the matter is put as follows: “On the question of probate, the orderly and proper course for the introduction of evidence is, first, to prove the requisite formalities attending the execution, publication and attestation of the will, and then show that the testator was at the time, of the proper age and mental soundness, and was not unduly influenced in the testamentary act. ”

The necessity for observing this order of proof is now emphasized by the provisions of the Code of Civil Procedure, § 2622 and 2623. As to the former, Surrogate Rollins says in Cooper v. Benedict (3 Demarest, 136), that it has lent a new sanction to the doctrine enunciated in Delafield v. Parish (25 New York, 34) that the proponent of the will must prove to the satisfaction of the court that the supposed testator, at the time of the execution of the alleged will, was of sound and disposing mind and memory. Section 2623, and the subject here under consideration are discussed in Matter of Freeman (12 N. Y. State Rep., 175), from which I quote.

“ It is claimed by the respondents, who were the proponents, that the formal execution of the will having been established, it was unnecessary for the proponents to give any evidence of mental capacity of the testatrix to make a will; that the contestants had the burden of proof of showing incapacity, and as they gave no evidence at all, the surrogate might and should presume the existence of mental capacity, and admit the will to probate.

“ I think this will not answer. The Code of Civil Procedure provides, section 2623: ‘If it appears to the surrogate that the will was duly executed, and that the testator, at the time of executing it, was, in all respects, competent to make a will, and not under restraint it must be admitted to probate.”

“ It seems the competency of the testator must be made to appear to the surrogate Such a provision would hardly be complied with if nothing was shown at all, and the surrogate was left to presume it from the absence of any evidence upon the subject.

“ The cases cited by respondents were none of them matters of proving wills for the purpose of admitting them to probate. Weed v. Insurance Company (35 Supr. Ct., 386), and Coffey v. Insurance Company (44 How. Pr., 481), were actions to recover life insurance where the questions of suicide and sanity were involved. Jackson v. Van Dusen, 5 Johns., 144, was an action of ejectment.

“In these cases it was correctly held sanity was to be presumed as the natural condition of the mind. The statute, however, above referred to, did not cover those cases, nor assume to control the trial of actions. The statute relates alone to the admission of wills to probate, and under this statute it has always been held that the proponent of a will must in the first instance give proof of competency to make the will * * *. And it has been held where the question of capacity to make a will is in doubt, where the evidence is equally balanced, the will should be denied probate.” * * *

“ This question, of course, does not arise very often, because, as a matter of fact, the subscribing witnesses are uniformly asked and state as to the mental capacity of the testator. I think the policy of the law is to require affirmative evidence of mental capacity, either by the opinions of witnesses, or by proof of circumstances, before admitting a will to probate.”

The force of the language of Judge Williams, which I have here quoted, is not impaired by the fact that he dissents from the two other members of the court on the principal question in the case, which was the competency under section 834 of the Code, of proof of the testator’s sanity, by the subscribing witnesses, who were both physicians, and seem to have been the only persons examined on the trial; for it is quite evident from the whole discussion that all the judges regarded this testimony, as to sanity, material and necessary to the proponent’s case, and considered its competency on that theory.

The same principle has been laid down in numerous cases, decided by the courts of last resort, in many other leading states of the Union. Brooks v. Barrett, 7 Pickering, 94-98; Crowninshield v. Crowninshield, 2 Gray, 524-532; Gerrish v. Nason, 22 Me., 438-441; Perkins v. Perkins, 39 N. H., 168; Taff v. Hosmer, 14 Mich., 309; Aiken v. Weckerly, 19 Mich., 482, 502, 503; Comstock v. Hadlyme, 8 Conn., 261; Renn v. Samos, 33 Texas, 760; Williams v. Robinson, 42 Vt., 658.

I conclude, therefore, that the law is, that the proponents, in addition to proof of the due execution of the will, must show affirmatively, before resting their case, that the testator was of sound mind, and free from undue influence, at the time of the alleged testamentary transaction.

The necessary prima facie proof may be, and usually is, furnished by the attesting witnesses to the will; but if they express no opinion, or an unfavorable one, the fact of sanity may still be presumptively established by the testimony of the subscribing witnesses, or of other persons, to facts and circumstances from which capacity may be fairly and legitimately inferred. Kingsley v. Blanchard, 66 Barb., 322-323.

In the present proceeding, after a careful examination of the testimony given by the single witness examined, I cannot say that I am satisfied as to the competency of the decedent at the time of the alleged testamentary act. It is true that the witness says that Mrs. Ramsdell conversed intelligently, and understood the contents of the instrument, and the nature of the transaction, but he says further that he did not think that her mind was sound. He says:

“Her natural affections seemed to be perverted, Instead of having that feeling of kindness and consideration for her children that a mother would naturally have, she seemed indifferent to them and to dislike them. Her natural affections were blunted. She seemed to have no conception of the fact that she was owing certain duties to those children, or that they were objects of her bounty. That conclusion I arrived at after talking with Mrs. Ramsdell for an hour. Our conversation left the impression on my mind, that her mind was not right. She didn’t seem to comprehend-the proper objects of her bounty. A portion of her conversation impressed me as rational, and a portion as irrational.” In view of all this testimony standing without contradiction, or attempted extenuation, I must allow the contestants’ motion to prevail.

No question was raised as to whether or not the proponents’ proofs, of the formal execution of the alleged will, comply with the requirements of section 2619, of the Code of Civil Procedure, and I, therefore, do not discuss that subject. _  