
    Cornelius E. Byrne, Appellant, v. Arthur Byrne, Appellant, Impleaded with Albert F. Brugman and Others, as Executors, etc., of Frances Louise Byrne, Deceased, and Others, Respondents, and Others, Defendants.
    First Department,
    December, 1905.
    Will—testamentary capacity—when' will disinheriting infant son, .in case he lives with his father, together with expert testimony as to testatrix’s condition,- raises, a' question for the jury as to her testamentary capacity.
    A will made shortly before the death of the testatrix gave all her property to trustees, a portion of the income to be spent in the education of her infant son, Who,’ at his majority, was. to receive the principal if he chose to live with some: member of the testatrix’s family; but if he then chose to live with his father or any member of his father's family, the principal was to go to the surviving brothers and sisters of the testatrix.. In a codicil made .five ' days afterwards the testatrix provided that her said infant son should not receive any portion . of her estate at his majority “if at any time during his minority’’ he resided, lived or cohabited w-ith his father.
    Her physician testified that, the testatrix was suffering from physical ailments, which would affect her mentally, and three experts, basing their evidence on his testimony, swore that she had not Sufficient mental capacity to make a will.
    
      Held, that á direction of a verdict in an action under Section 2653a of the Code of Civil Procedure,- adjudging said instruments fo be the will, apd codicil of the testatrix, wqs error; - . 1
    
    
      That the unnatural disinheritance of an infant son, if during his minority he lived with his father, together with the expert testimony aforesaid, raised a question of fact as to the testamentary capacity of the testatrix which should have been submitted to the jury.
    O’Brien, P. J., dissented.
    Appeal by the plaintiff, Cornelius E. Byrne, and by the defendant, Arthur Byrne, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 22d day of April, 1903, upon the .verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 23d day of January, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William L. Snyder, for the appellants.
    
      David McClure, for the respondents.
   Patterson, J.:

This appeal is from a judgment entered upon the verdict of a jury by direction of the court, adjudging certain papers to be the last will and testament and a codicil thereto of Frances Louise Byrne, and from an order denying a motion to set aside the verdict and for a new trial on the judge’s minutes. '

The action was brought under section 2653a of the Code of Civil Procedure. The testatrix, whose maiden name was Frances Louise Brugman, was the wife of the plaintiff. ■ She was the mother of an infant son, her only child, who was born January 7, 1892. The testatrix died August 5, 1895. The will was made July 5 and the codicil July 10, 1895. They were both admitted to probate. Ho question is now raised as to the plaintiff’s right to maintain the action.

The grounds upon which the will and codicil were assailed are, that at the time they were respectively executed the testatrix was and for a long time prior thereto had been weak and feeble in mind and body, suffering from uremia and a complication of physical disorders or diseases and was not of sound memory and understanding —that she was hovering between life and death, was without testamentary capacity, and hence that the writings admitted to probate were not the last will and testament and codicil thereto of the said Frances Louise Byrne.

After making special bequests, not -necessary to consider, the testatrix in her will empowers, her executors and trustees to pay for the education of her son, Arthur Byrne, from the income of her estate, $100 each year until he arrives" at the age of twenty-one years; but that is coupled with a further provision that they shall pay such other and further sum or sums of money as -they may deem best from time to time to expend for his education durin'g his minority, and when he arrives at the age of twenty-one years he ,is to receive all the real and personal estate then in the charge of the executors and trustees, provided he chooses at that time to live with the testatrix’s family or some member of it, and refuses to live with his father or any member of his father’s family; and the testatrix proceeds to say that if he chooses, when he arrives at the age of twenty-one years, to live with his father or any member of his father’s family, then and in that case 1 give and bequeath all my property to my brothers and sisters to be divided equally among them. And in case my son Arthur dies before the age of twenty-one years, I give, devise and bequeath all my estate of any kind, name and nature to my surviving brothers and sisters to be divided equally between them.”

Thus far, upon a survey of this will, it is to be seen that it was within the .intention of the testatrix to give to her infant, child,-when he became able to make a selection, the right and power to- determine with whom he should live as a condition of his enjoyment of his mother’s property. - By the codicil made five days after the execution of the will the testatrix declares that she had attempted to dispose of the residue of her estate, both real and personal, for the benefit of her infant son, Arthur Byrne, and had been advised .that the attempted disposition was uncertain, ambiguous and likely to cause a question of -construction, and thereby she was induced to change, amend and alter the 3d clause of the will respecting, the said residuary estate so that the remainder thereof should be giver) to her executors and trustees in trust to receive the rents, issues and ■profits until her son Arthur attained the age of twenty-one years or until his earlier death, and out of the rents, issues and profits to. apply the sum-of $100 or more, in their discretion, .in -each year for his education, maintenance and support during said time. “Upon his arriving at the age of. twenty-one years, and in the event of my said son having continuously lived, cohabited and resided with my family and blood relatives or with some member thereof, I hereby give, devise and bequeath all of the rest,, residue and remainder of my said estate, together with any and all accumulations of rents, issues and profits then in the hands of my said executors and trustees, to my said son, Arthur Byrne; but in the event of my said son, Arthur Byrne, refusing to and not residing continuously with-my family and. blood relatives or with some member thereof; or, in the event of his death before he arrives at the age of twenty-one years, then and in that case, or in either of the above events, I give, devise and bequeath all the rest, residue and remainder of my said estate, both real and personal of. whatsoever name, nature and kind and-wheresbever ■ situated, unto my-then surviving brothers and sisters tobe divided among them equally, share and share alike. It being my express wish, will arid desire and also my intention that my said' son, Arthur Byrne, should not and shall not receive, any share or portion of any of my said estate if at any time during his minority he reside; live or cohabit with my husband, Cornelius E. Byrne, his family, next of kin or blood relatives.”

The last clause of this codicil indicates sufficiently the difference between the original will and the codicil respecting the exclusion of the testatrix’s son from the interest in remainder in her estate^ By the will his infantile inability to determine with whom, he should reside is recognized. By the clause of the codicil last quoted he is stripped of his inheritance if-at anytime in his tender;-and irresponsible.years, and before he can make a choice o'r have any freedom cf action, he should reside, even-on compulsion, with his father or his father’s relatives. It' is very easy to see that this codicil, so- unnatural, was inspired by hatred of the father .and his family, and the evidence in the case fortifies that view. There -is.no direct evidence of undue influence exerted by any particular person upom the' testatrix in procuring the execution of this will-or its codicil ; that is to say,'there is no positive evidence that any person connected with the testatrix ■ made direct efforts to induce her to execute a will which should by any of its provisions be for the benefit of such person — but this is an inofficious codicil; it is contrary to natural duty or affection. It sufficiently appears that, the testatrix had a. fixed hatred and loathing for her husband, whether well or ill founded, and that is traced and transmitted into the "codicil affecting her child. How it originated we do not know. It may or. may not have been the prompting of delusion or the creation of a mind diséased. Under such a.situation it became of prime importance to ascertain the mental condition of the testatrix, especially when she executed the codicil. Was she then in a. "situation,, physically and mentally, to. comprehend her relations to this helpless infant child, or was she in such a condition that without power to discriminate she might have been dominated by feelings^of hostility tó'her husband so strong as to prevail- over and conquer the natural impulses of a mother and "thus-be not of •“ disposing mind and memory.”

The difference between the will and the codicil has been pointed out. Thé former may be sustained and the latter not. , Wlien the latter was made, if the testatrix was suffering from certain diseases, the evidence shows they would affect her mentally. Her physician, Dr. Holmes, who attended upon her from the 1.4th of December, 1894, ■ until the ..time of her death, states her general physical condition. He saw her almost every day and "sometimes more than "■ once a day, and, according to his testimony, she was suffering from a complication of diseases "which naturally (as said before) affected her mind. Three physicians, basing their expert testimony on the . facts testified tó hy Dr. Holmes, swore that a person suffering from those conditions, had not sufficient mental capacity to make a will. The learned trial judge directed a verdict, disregarding the testimony of the expert witnesses, evidently so doing upon the .view-which this court .took in a case which has since been reversed by the Court of Appeals! Differing from us, the Court of Appeals in Hagan v. Sone (174 N. Y. 319) expressly held that expert evidence' of the character introduced in this case was admissible and should: have been left to-the. jury for their consideration, saying that the value and bearing of -the. evidence, as well as its construction, is for the body to which is committed the decision of all questions of fact.

Wé are of the opinion that all ¡the evidence of the expert witnesses should have gone to the jury in this case, there being abundant proof" as to the existence of conditions which might have affected the testamentary capacity of the testatrix.

The judgment and order are, therefore, reversed and a new trial ordered, with costs to appellants to abide event.

McLaughlin, Clarke and Houghton, JJ., concurred; O’Brien, P. J., dissented.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.  