
    Matter of the Application for the Probate of an Instrument Alleged to be the Will of Elizabeth Soden, Deceased.
    (Surrogate’s Court, Dutchess County,
    May, 1902.)
    Will — Testamentary capacity.
    The will of a woman seventy years old, made in Nov., 1900 and in conflict with her previously expressed intentions to give her property to her crippled son, was refused probate where it appeared that she, in Aug., 1900, was suffering from a tumor in her face accompanied by symptoms of insanity, that she then had an unfounded delusion that she was the subject of persecution, that, in Oct., 1900, she was stricken with paralysis accompanied by progressive aphasia and by symptoms of paresis, which practically never ceased, and that long after she had made her will she stated that she had made none.
    Proceedings upon the probate of a will
    Marvin R. Smith, for proponents.
    Samuel K. Phillips, for contestant.
   Hoysradt, S.

Elizabeth Soden, a resident of Matteawan, died March 28,-1902, leaving an instrument which has been offered for probate as her will. Probate has been opposed upon the usual grounds, but the evidence has been directed mainly to the question of testamentary capacity.

The testatrix was, at her death, about seventy years of age, and for many years previous had been a widow. By the accumulations from her earnings, derived from domestic work, aided by the savings of her son William, she acquired and paid for a house and lot at Matteawan, which constitute her estate, and where she and her son William and his wife resided for upwards of ten years before her decease. In the spring of 1900 Mrs. Soden began to exhibit a marked change of manner and disposition compared with her former life. She became irritable, depressed and indifferent toward lifelong friends and neighbors. At intervals she apologized for her conduct saying that her head was not right and pained her. In August, 1900, she was suffering from a tumor on her face, which was removed by Dr. Tiel, who then discovered slight evidences of incipient insanity. In October, 1900, she was stricken with paralysis and exhibited pronounced symptoms of paresis. This was accompanied by aphasia shown in her inability to form sentences or to express ideas. She was confined to her bed for several weeks, and shortly after, in November, 1900, was able to leave the house to visit her niece in Putnam county.

During a two weeks’ visit there she executed the instrument offered as her will, which is at conflict with her freely expressed intentions. She had previously stated in positive terms that she would make no will as she wished her son, who was a cripple, to have her property, as he would need it. Only a few months before the execution of the will she stated to Mrs. Gregg that a will was foolishness and she was glad she had none to make, that everything belonged to her son, and when he became unable to do any work he could mortgage the property. I view this merely on the question of capacity and not as an obligation to make a testamentary disposition of her property. Several months after executing this will she repeated her former declaration about a will and said she had made none.

The progression of her disease is clearly shown. In December, 1900, the aphasia was more marked. In March there was evidences of another impending attack. In July, 1901, she suffered another attack of paralysis and paresis, during which she locked herself into a room and was in a state of insane frenzy until subdued by chloroform. After temporary relief this disease contraed to progress until her death. ' There is evidence of a delusion of persecution dating from the summer months of 1900.

There seems but one conclusion to be formed as to the question of testamentary capacity. The expression of Mrs. Soden of her desire to have her property go to her son should be accepted as the natural design of a rational mind. The intervention of a brain disorder, aphasia, a delusion, followed by the execution of the instrument offered as her will, the subsequent statement that she made no will, and that the property belonged to her son, accompanied with the attack of violent insanity progressing until her death, combined to preclude, in my judgment, the presence of testamentary capacity where no explanation of the inconsistency is given.

If the disposition is unnatural and inconsistent with the obligation of the testator, it then becomes the duty of the proponents to give some explanation. Matter of Budlong, 126 N. Y. 423.

In Matter of Lowenthal, 2 Misc. Rep. 323, it was held that where a testator died of paralytic dementia, having made his will while in the first stages of the disease and giving his wife but a small sum, where their devotion prior to that time was marked, a finding of incompetency was sustained.

Where a person tenaciously holds to a belief that a certain state of affairs exists, which do not, he is suffering from a delusion, and where a will is governed by such a delusion it is invalid. Matter of Lapham, 19 Misc. Rep. 71.

In Matter of Rounds, 25 Misc. Rep. 101, it was held that a will executed when the testatrix was in a very feeble condition, being afflicted with creeping palsy, and a witness testifying to an expressed desire of the testatrix for a different disposition of the property, than that made, that probate was properly refused. Citing Delafield v. Parish, 25 N. Y. 9; Van Guysling v. Van Kuren, 35 id. 70.

The application for the probate is, therefore, denied.

Probate denied.  