
    Mary Lavin, Respondent, v. John A. Thomas, as Executor, etc., of Patrick Lavin, Deceased, and Others, Appellants, Impleaded with Thomas Flynn and Others, Defendants.
    Fourth Department,
    January 8, 1908.
    Will —facts not showing lack_of testamentary capacity.
    Action under section 2653a of the Code of Civil Procedure to determine the validity of the probate of a will. Evidence examined and held, that a verdict that the testator lacked testamentary capacity was against the weight of evidence.
    The test of ability, to dispose of property by will depends upon the testator’s conception of his obligations to those who naturally are. the objects of his bounty and upon his adequate comprehension of the conditions and nature of his property and of the scope and import of the testamentary provisions.
    Williams, J., dissented.
    Appeal by the defendants, John A. Thomas, as executor, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga oil the 24th day of July, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of July, 1907, denying .the defendants’ motion for a new trial made upon the minutes.
    Patrick Lavin, of the town of Venice in the county of Cayuga, executed his last will and testament on the 31st day of March, 1905, and died in October following, and the will was admitted to probate December seventh of that year in' the Surrogate’s Court of said county." This action was commenced forthwith on the entry of the decree by a daughter of a deceased son of the testator pursuant to section 2653a of the Code of Civil Procedure for the purpose of having the validity of the probate of said will determined. The executor of the will and all other parties interested in the estate of said deceased are made parties 'defendant. A trial was had in October, 1906, and at the close of the plaintiff’s case the court directed a verdict for the defendants, which was' reversed upon appeal to this court on the ground that “ the case should have been submitted to the jury.” (118 App. Div. 918.) Upon the last trial one question was submitted to the jury; “Was Patrick Lavin on March 31, 1905, capable of making a - will?” The jury answered the question in the negative and found a verdict for the plaintiff.
    The decedent left him .surviving three children and the descendants of two others. By liis will he gave the plaintiff twenty-five dollars, to each of the four Flynn grandchildren ten dollars, adding: “ Their mother, Mary Flynn, having already in her lifetime received-her full-share in my estate; ” to his son Thomas two thousand dollars ; and the residue to- his son James, subject to the burden of caring for William, who was mentally incompetent.
    
      Frank C. Cushing, for the appellants.
    
      Amasa J. Parker, for the respondent.
   Spring, J.:

Patrick Lavin was a sturdy, thrifty farmer, and at the time pf his death owned a farm'of 322 acres and nearly $11,000 in personál property. He lived to be eighty-six years of age, had been a soldier in the Civil War .for three years, and after his discharge from the army devoted his energies to. carrying on liis farm in Cayuga county and acquiring property. He was active and energetic, well known in the vicinity where he lived, sharp at a trade and of excellent judgment. There is no proof that he.was ever overreached in any business transaction or that he made a bad investment or an injudicious sale of the products of his. farm, although he managed that and his property up to the time of liis death. -

The testimony upon which the charge of lack of testamentary capacity is based consists of a- few isolated facts, nearly all of which are susceptible of-explanation consistent with sufficient: ability to make the will propounded.

I will briefly summarize the chief features of this testimony.

'In 1900 the decedent agreed to loan one Seymour Parks $1,600, accepting as security a mortgage upon the farm of Parks. Two or three weeks later Lavin denied that he promised to make this loan. It developed, however, that judgments had been entered against Parks before he saw Lavin the second time; that there was unpaid interest on the existing mortgage, and also that he filed a petition in bankruptcy shortly thereafter. Parks also testified that in 1902 or 1903 Lavin passed his house, saying he was going home, although traveling in the opposite direction. Parks was preparing to drive over to the home of his former father-in-law, who was then dead, and the route was near the residence of Lavin, so he rode along with Parks. Tie kept reiterating, “ The old man is dead,” referring to the father-in-law. When near home he said things appeared to look- familiar. There were one or two other lapses of a similar kind proved, which in and of themselves are not rational, and-yet they are not unusual in men of advanced age who are still vigorous mentally.

Several witnesses testified that in 1899, six years before Lavin died, he was arrested for cruelty to his horses. His hired man was using them and there were callouses or sores upon their shoulders made by the collars which they wore. He paid a fine of five dollars, and said he supposed he had a right to use his team as he saw fit. Another witness testified that he purchased of Lavin two calves, and when they were delivered a poor one was substituted for a better one. And at another time Lavin had arranged to purchase a binder and his wife came into the field and called -him an “•old fool,” and he told the agent not ship it; and there was a similar transaction in regard to a mower. Subsequently he purchased the binder. While his conduct is characterized as irrational by this agent, he did not seem to have any hesitancy about making the sale to Lavin, and said the question of his competency to do business “ never entered my head at tbe time.”

In 1905 an assessor told him he -intended to increase his assessment of personal property, and the old man said the assessors were trying to rob him, and he vigorously repeated the statement several times. These are the chief transactions which it is claimed justify the verdict that Lavin was incompetent to make a will. Whenever any of these witnesses had any business dealings with him he comprehended what he was doing, made the correct change and exercised good judgment.

There were three witnesses to the will, all old acquaintances of Lavin. One a former chairman of. the board of supervisors, who was the cashier of the bank where Lavin had long transacted business ; a merchant where he traded, and an old time friend; and they testified to his mental soundness and to his understanding of the business he was doing. Lavin was a man of great physical strength and was actively engaged in business during his whole life. His farm produced large crops each year and'he- sold these himself, received the money, attended to the delivery of the goods, purchased ' and sold stock, and there is no proof that' lie lacked judgment in the larger'transactions, and lie was accurate in the. payment and receipt of money and in making change. ■ He loaned money; received payments of principal and interest; reinvested what he received, and.no suggestion of improvidence or of foolhardy investments appears in the record. He was well known, and his. neighbors and the leading men. of tile town and vicinity in whibli he resided testified to. numerous transactions running down to the time of his death, and several after the execution of the will, all -indicating not merely mental capacity in the abstract, but vigor, shrewdness and. alertness in each transaction.

His regimental comrades, the cashier of the bank with which he did business, the men who- had loaned money of him, the merchants-' where he 'purchased goods, the blacksmith- who did his work, the miller who ¡purchased his wheat and buckwheat,, the agent who insured his. property, the men who bought the crops and stock lie sold, the neighbors who were in friendly intercourse with lii-m- day by day, the priest of-the church to which: he contributed, the physicians who knew him, and others, testified to many transactions with him, and all united in saying the acts were rational; and each occurrence is more satisfactory evidence of'his intelligence than the characterization of it, even by these witnesses who were so wel-1 qualified to judge of his conduct. • ,-

The test of a man’s ability to dispose of. Ins property by will depends upon his conception of his obligations to those who naturally are the objects of his bounty and upon bis adequate, comprehension of the condition and nature of his. property, and of the .scope and import of the testamentary, provisions, The weight of the evidence is that Lavin measured up with this standard. For years he had not been on friendly terms.with- the plaintiff. Her father, his-son,- had died- many years before the testator.' He had not called on her' in ten years at her home with her mother in Auburn, although at times in the city. She did not visit him.. He and his wife had been ordered out of tlie household of the Flynns and their relations'were unpleasant. His sons James and "William had always dived with him. He wished to provide for the maintenance of the unfortunate one, and James he always trusted and relied upon. In any event, if he was competent to make a will the power was lodged with him to dispose of, as he desired, the property which he had earned and saved by long years of economy and foresight.

. The statutes of the State permit one to use this form of transferring his property to be effective upon his death, and they put no restraint upon the distribution to be made among persons, barring the property rights accruing to the widow. The motives which induce a man in making a testamentary disposition of his property to prefer one relative to another may not always be- disclosed, but if he is free • from improper influence and possesses the requisite capacity, what controlled his preference is unimportant.

If Patrick Lavin, with his extended acquaintance and business activity for a farmer, was incompetent to make a will, there- must be abundant evidence of his mental weakness, but the weight of the evidence in this' record is decidedly iii favor of his testamentary capacity.

The judgment should be reversed and a new trial ordered, with costs to abide event.

■ All concurred, except Williams, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event, upon questions of law and fact.  