
    
      In re Darling’s Will. Delacroiex v. Lefferts.
    
      (Supreme Court, General Term, Mrst Department.
    
    July 9, 1889.)
    1. Wills—Contest—Identity.
    In a contest to set aside a will it appeared that the father of the contestant was an illiterate man, who had been a farm laborer, a policeman, and a convict; be signed his name with a mark. Testator had been a tutor in prominent families, a professor of anatomy, and a physician. The names of the two parties were the same, there was a similarity in stature, and the associations and place of residence were at times the same. JSeld, sufficient to sustain a finding that testator and contestant’s father were not one and the same person.
    3. Same-—Undue Influence.
    Where a testator had often spoken of one to whom he left his estate to the exclusion of his nieces and nephews as “first and alone” in his affections, and had written a letter to her more than a month after making his will, informing her that he had done so, leaving her everything, the will will not be set aside as made under undue influence.
    Appeal from surrogate’s court, New York county.
    This is an appeal by Catharine Lefferts, a contestant, who claims to be the daughter and sole heir at law of the decedent. From the findings of fact, conclusions of law, and the decree or decision of the surrogate of the city and county of New York thereon, rendered on the 16th day of August, 1887, admitting to probate as a will of real and personal estate a paper proposed by Amelia Delaoroiex as the will of William Darling, deceased. The following is the opinion filed by Rollins, S.:
    “This decedent died in the city of New York, on December 25, 1884. An Instrument, purporting to have been executed by him as his last will and testament, was soon afterwards propounded for probate in this court, by Amelia Delacroiex, who is named therein as executrix and universal «legatee. Objections to the validity and legality of this instrument were filed by various persons professing to be the decedent’s next of kin. Certain of those persons asserted that he died unmarried, and of course without leaving any lawful children or child. These contestants were David Darling and John Darling, who claimed to be his only surviving.brothers, and Charles W. Hawkins, James D. Hawkins, and Sarah A. Cosson, who claimed that their mother, who had predeceased the decedent, was at the time of her death his sole surviving sister. The proponent did not dispute the right of the five persons above named to oppose the grant of her petition, but challenged the claim of a sixth contestant, Catharine Lefferts, who asserted herself to be the daughter of this decedent, born in lawful wedlock. The great bulk of the testimony upon which I am now to pass has no relevancy to the issue whether the alleged will of William Darling is or is not a valid and effectual testamentary paper, but bears solely upon the issue whether William Darling was or was not the father of Catharine Lefferts. For reasons that will presently be stated I am very confidently of the opinion that the instrument which has given rise to this controversy is entitled to probate. There is no occasion, therefore, for reviewing in detail the evidence submitted on behalf of Catharine Lefferts, and in behalf of the other contestants, respectively, in support of their rival pretensions to be regarded as this decedent’s next of kin. All are alike entitled, however, to a finding upon this issue of kinship. Catharine Lefferts is the widow of one Robert Lefferts, who died in this city in January, 1883. She became Robert Leffert’s wife i n 1857, having been for some years prior to that date the widow ■of one Charles McD uffy, to whom she had been married in 1853. Mrs. Lef-
    
      ferts was the daughter of a man named William Darling, and of a woman named Anna Van O’Linda. She was born at Charlestown, in Montgomery county, of this state, in the year 1833. A decree divorcing her parents on account of her father’s adultery was pronounced by the court of chancery in July, 1836. Catharine claims to have seen her father in Hew York city about the year 1843, and at divers times thereafter down to 1852. During some portion, at least, of the years 1851 and 1852 she lived with him in Greenwich street, near Chambers, and subsequently at 57 Robinson street. The two were arrested in July, 1852, upon a complaint in which they were jointly charged with incest, and were soon afterwards jointly indicted for that crime. The father was put on trial, was found guilty, and on October 5, 1852, was sentenced to be confined in the state prison for a term of ten years. Mrs. Lefferts does not claim to have spoken to him, or to have been in his company, after his conviction, but says that on several occasions after that date (none of which occasions are specified) she saw him in the streets of Hew York. Her testimony was rambling and incoherent, and at times scarcely intelligible. She seemed to be a woman of nervous and excitable temperament, honestly impressed with the justice of her claim, and utterly incapable of comprehending the force of any evidence tending to overthrow it. How, was the man William Darling, who was Catharine Lefferts’ father, the William Darling whose will is here in controversy? The decedent was at the time of his death professor of anatomy in the medical department of the University of the City of Hew York. He was born in Scotland, and came to this country writh other members of his father’s family at some time between 1820 and 1824. In 1824 or 1825, as appears by the testimony of Mr. George Buckham, he was tutor in a school which stood at the corner of what was then known as ‘ Greenwich Lane’ and ‘Amos Street.’ In 1831 Mr. Buckham recommended him to the authorities of Rutger’s Institute as a competent teacher in the classics and higher mathematics, but it is not shown that he was ever connected with that institution. From the testimony of Henry A. Mott it appears that Professor ■Darling was a tutor in the family of the late Dr. Valentine Mott, father of the witness, in the years 1831, 1832, and 1833, or thereabouts; that he was afterwards a-member of Dr. Mott’s household until 1836, and for at least two or three years was a medical student under the doctor’s tuition. In 1841 or 1842 he was a pupil at the medical department of the university, and at a later period was occupied for several years in that institution as a demonstrator of anatomy. He was one of the attending physicians at the Cholera Hospital on Staten island in 1851 and 1852, and three or four years later was selected by Dr. John M. Camochan, who was then in charge of the Emigrant Hospital on Staten island, as his chief assistant. In 1866, upon his return from Europe, after a prolonged absence from this country, he was invited to the chair of anatomy in the University of the City of Hew York, and continued to occupy that professorship until his death. According to the testimony of many witnesses he was not only distinguished for his skill and knowledge in the sphere of his special activities, but was regarded by all with whom he was thrown into intimate association as a man of vigorous intellect, of profound erudition, and of extensive general culture. Mr. Colin Robertson quaintly said of him that ‘ he was as familiar with his Xenophon as he was with his Burns, and with his Herodotus as he was with his Homer.’
    “ The brief recital that I have made of incidents in the career of the William Darling who wras distinctly identified in the testimony as the father of Catharine Lefferts, and of the incidents in the career of the William Darling who was distinctly identified as this decedent, may not suffice to demonstrate, though it strongly tends to demonstrate, the existence, during the period covered by the testimony, of two distinct individuals to whom such testimony relates. Counsel for Mrs. Lefferts has called my attention to certain particulars in which, as he claims, marked coincidences have been shown between
    
      the statements oí the witnesses who have described the appearance, characteristics, habits, etc., of the man who was unquestionably Mrs. Lefferts’ fattier, and the statements of other witnesses who have given similar testimony as to the man who was unquestionably Prof. William Darling. The most pronounced of these coincidences are the following: Identity of name; reticence concerning family history; general similarity of stature; early association with Albany and Troy; residence in 1850, or thereabouts, in Wooster street, in this city; and existence at that time of some sort of scandal in connection with a woman. The supposed probative force of these coincidences, and of certain others, which I lack the time to specify, is opposed by testimony respecting contrarieties of such gravity and importance as to demonstrate beyond all reasonable doubt that the William Dariing who married Anna Van O’Linda and the William Darling whose will is here in controversy were not in the latter’s life-time one and the same person, but were, on the other hand, distinct and different persons. It is well proved that William Darling, the father of Catharine, was an illiterate man, of very limited intelligence, who was for some time prior to his marriage a farm laborer, and was for a considerable period, between 1840 and 1850, employed as a boatman on Hudson river steam-boats. It is proved, also, that he was thereafter, until 1852, a member of the municipal police, and that his formal examination in July of thatyear, after he had been arrested for the crime of incest, was signed with a mark. That these things could have been true of this decedent, who was in 1831,1832, and 1833 a tutor of the children of Dr. Valentine Mott, was thereafter a respected member of the doctor’s household, was for a considerable period after 1845 demonstrator of anatomy at the University Medical College, and was in 1851 or 1852 stationed as a physician at the Gimiera Hospital in Staten island, is simply incredible. Whether William Darling, the convict, remained in prison until the expiration of his sentence does not appear, but it does appear that on January 26, 1866, he was formally restored by the then governor of the state to the citizenship which had been forfeited by his conviction and sentence. It also appears that William Darling, the decedent, who was a native of Scotland, was admitted to citizenship by the court of common pleas in the year 1854. It must puzzle any persons who contend that the man who was naturalized in that year was the man who had been convicted of a felony two years previous, to explain on what possible theory he should have applied to have his citizenship restored in 1866. The certificate of restoration is, on the other hand, easy of explanation if the convict was a native' of Rbinebeck, in this state, as he declared himself to be upon his examination before the police magistrate. From the testimony of Mr. Stevenson Haig, who knew this decedent in Scotland, it appears that the names of his brothers and sisters were James, John, Andrew, David, Mary, and Christina. This witness was very positive that the decedent never had a brother called Nathan, and that he had no near relative who bore that name. Mrs. Lefferts had previously testified that her father had a brother Nathan, who was once a door-keeper in the executive mansion at Washington. Near the close of the trial there appeared a witness, Mrs. Maria Rogers, who at the time of her marriage to her last husband was the widow of this Nathan Darling. About a year after her marriage to Nathan Darling, 1866, she saw his brother William, who was known to her as the reputed father of Mrs. Lefferts. William called at the house where she was then living with her husband. She described him as a man of very scanty intelligence, of whose shabby appearance and demeanor her husband was professedly ashamed. She told of her intimate acquaintance with Mary Thrali, who is shown by the statements of other witnesses, whom I regard as trustworthy, to have been a sister of. Catharine Lefferts’ father, at one time engaged in the business of book-binding in this city. Testimony was given in Mrs. Lefferts’ behalf by one Dr. Hazelton, to the effect that at the suggestion of this decedent, lie once em-
    
      ployed this very Mary Thrall to stitch, for binding, a quantity of pamphlets, and that the decedent then spoke of Mary Thrall as his sister. This testimony is certainly important if true. I do not deem it important.
    “For the reasons above indicated I find that Catharine Lefferts, in the event that this decedent shall be declared intestate, has no interest in his estate, and has therefore no status to contest the probate of Ms will. The contestants other than herself resist the probate of the paper here in controversy upon the ground that at the time of its execution Prof. Darling was lacking in testable capacity: and that its dispositive provisions are not in accordance witli his real wishes and purposes, but embody, rather, the wishes and purposes of its proponent. It is needless to recite anew the testimony upon which I have already commented, by which it is demonstrated to my thorough satisfaction that the vigor of Prof. Darling’s understanding, the force of Ms will, the readiness and reteutiveness of his memory, remained unimpaired until the very close of his life. It only remains to be considered, therefore, whether the contestants have succeeded in establishing that this disputed paper was not really bom of his own thought, reflection, and judgment, but that, on the contrary, this proponent, by means of influence and control such as the law condemns, compelled or persuaded him to accept it, and sign it, and publish it as his last will and testament. There is no room for doubt that when this instrument was executed, and thenceforward until his death, the decedent entertained for this proponent sentiments of the highest affection and regard. This is abundantly demonstrated by the numerous letters that he is proved to have addressed to her from time to time during that period. Indeed, he speaks of her in a letter written more than a year before the date of the will as standing ‘ first and alone ’ in his affections, and declares his purpose of intrusting to her keeping all the possessions that he should leave at his death. The paper here in controversy received Ms signature in tills city in April, 1881, on the eve of his departure for Burlington to fulfill his duties as professor in the University of "Vermont. That its preparation and execution were not brought about by her immediate interference is established unmistakably by the contents of a letter which he wrote her from Burlington on June 5,1881, more than a month after this instrument came into being. 1 Before I left Hew York,’ he writes,
    ‘ I made a will in which I bequeathed all my property to you, and my desire is that you will always keep it as your own as long as you live.’ He then proceeds to state in detail the nature of his property, of which the will makes no specific mention. ‘ My property consists of a lot one hundred feet square in Pelamville, the taxes on which amount to four or five dollars per annum, payable yearly in February; also of a lot on the north side of One Hundred and Forty-Third street, the taxes being payable in October; also of my interest in the college building in Twenty-Sixth street, amounting to $5,000. There is, besides, my museum of anatomy in the same building, its value being $1,500. I have a policy of insurance on the life of Dr. Thomas O’Brien for $1,500, the premium on which is $83, payable yearly in the Universal Life Insurance Company, in Warren street, Hew York. Warren street is just opposite the city hall. Any statement in this letter which you do not understand I will explain to you when I see you about the end of this month.’ It is scarcely possible to conceive of evidence better calculated than that which is afforded by this letter to dispel the notion that the paper here assailed does not give expression to the voluntary and genuine testamentary purpose of its maker. I can recall no testimony which lends substantial support to the contestants’ claim, that this alleged will is the product of the undue influence of the proponent upon the mind and will of Prof. Darling, except the testimony of Mrs. Mary S. Jordan. If she is to be credited, the decedent was for nearly three months, between January and April, 1880, a lodger at a boarding-house kept by her, at 156 Waverly place, in this city, and there, on at least two occasions, received the proponent in his apartments. Mrs. Jordan professes to have
    
      heard a loud and stormy conversation between the decedent and his visitor, in the course of which she denounced him as a ‘stingy old miser,’ and declared that ‘ if he did not will her his money and property she would sue him for breach of promise.’ There are many reasons why this testimony seems to me unworthy of credit; but if it is strictly true no deductions can be drawn from it which would warrent me, in the face of the testimony for the proponent upon^which I can confidently rely, in denying the prayer of her petition. The paper which she has propounded may go to probate.”
    
      L. M. Knowles, for appellant. John G. Boyd, for respondent.
   Pee Curiam.

The only questions which arise on this appeal are questions of fact. The argument in behalf of the appellant is devoted wholly to the effort to show that “this appellant, Catharine Lefferts, is the daughter or child of William Darling, deceased, the testator herein.” The evidence bearing on the issue of kinship is considered so fully, so fairly, and so satisfactorily in the opinion of Surrogate Rollins that an extended discussion of the proofs on our part would be little more than a repetition of the views which he has expressed. It is only necessary to say, therefore, that we deem his conclusions amply sustained by the testimony, and, indeed, it is difficult to perceive how any other result could have been reached. The decree should be affirmed, with costs.  