
    John A. Dunham, Respondent, v. Margaret J. Dunham and Elizabeth Dunham, Individually and as Executrices, etc., of Margaret Dunham, Deceased, Appellants, Impleaded with Others.
    
      A finding that a testatrix was incompetent to. make a will, or was sulpect to undue influence, held to be against the weight of evidence.
    
    Circumstances under which a finding by a jury, in an action brought to determine the validity of a will by which the testatrix, a woman seventy-eight years of age, gave her estate, which consisted of $265 in money and the family homestead, which was valued at $6,500, to her two unmarried daughters, to the exclusion of her four sons and a married daughter and two children of a deceased son, that the will was invalid on account of the lack of testamentary capacity on the part of the testatrix, or because of the exercise of undue influence on the part of • the beneficiaries, will be held to be against the weight of evidence, considered.
    Appeal by the defendants, Margaret J. Dunham and others, from a. judgment of the Supreme Court in favor of the plaintiff, adjudging that a instrument purporting to be the last will and testament of Margaret Dunham, deceased, was not such last will and testament, entered in the office of the clerk of the county of New York oh the 22d day of March, 1901, upon the verdict of a jury, and also from an order entered in said 'clerk’s office on the 29th day of March, 1901, denying said defendants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 29th day of March, 1901, granting the plaintiff’s motion for an allowance against said defendants individually.
    
      Robert L. Redfield, for the appellants.
    
      Hector M. Hitchmgs, for the respondent.
   Laüghlin, J.:

The will was executed and attested in due form on the 11th day of August, 1898, and the testatrix died at her home, 1741 Bathgate avenue, borough of Bronx, New York city, on the thirtieth day of the following September. After a contest by all the children except appellants and their brother Lewis, the instrument was duly admitted to probate in the Surrogate’s Oourt of New York county on the 27th day of July, 1899. This action was then brought pursuant to section 2653a of the Code of Civil Procedure to determine its validity by a jury trial in this court. On the trial of the issue the jury was instructed that the will was properly executed, but it was left to them to determine whether on account of incompetency of decedent or the exercise of undue influence on the part of appellants the instrument produced was her last will, and they found'that it was not. The learned trial justice-entertained a motion upon his minutes to set aside the verdict and grant a new trial, and it was argued at length. Decision was reserved, however, and he died before a determination of the motion. A case containing all the evidence was thereafter duly agreed upon and certified. Appellants then made this .motion on the case at Special Term to set aside the verdict and for a new trial, and respondent at the same time moved for a judgment on the verdict and for costs and an additional allowance. These motions were heard together and" resulted in the judgment and orders appealed from.

At the time of her death decedent had $265 in money, and was the, owner of the house and lot where she lived of the value of $6,500 and which had been the family homestead for more than thirty years.

The will devises and bequeaths all of her property to the appellants. Her husband died in 1879. Decedent left as her heirs at law and next of kin four sons, three daughters and two grandsons, children of a deceased son. At that time her household consisted -of the appellants, her son Lewis and the two grandsons. As has been seen, Lewis was not a contestant. The daughter Mary Gordon married and left home at an early age. The plaintiff and the sons Peter and Theodore also married and left the homestead. Their visits home were not frequent, and their habits were intemperate. It appears, too, that the respondent and his brother Theodore were harsh at times in their treatment of their mother and sisters when they did visit them. None of decedent’s married children contributed anything toward the maintenance of the parental domicile except plaintiff, who testified that during a period of twenty years he gave his mother as much as $100.

On the other hand, it appears without a dispute that the appellants were affectionate daughters, kind and attentive to their mother, and regularly turned over to her their earnings. Elizabeth was a dressmaker or seamstress, and for upwards of twenty-four years she assisted her mother with the housework, did the family sewing, and earned from six to eleven dollars per week, all of which was given to her mother. Lewis gave his mother five dollars per week when working. Margaret had been teaching for thirty years and gave her mother twenty-eight dollars per month, and contributed considerable in addition in supplies, household furniture and furnishings. This evidence is not disputed, and is also corroborated -by disinterested witnesses, except as to the amounts.

The decedent is described as a woman about five feet four inches ¡tall, and weighing about two hundred pounds. Up to the 1st of -July, 1898, she appears to have enjoyed uniformly good health. She ■was seventy-eight years of age. She possessed fair intellectual attainments, and sought to give her children’ educational advantages. She -could read and write, and Margaret testifies would at times encourage her two grandchildren by competing with them in writing, and would spell words with them.

Mary A. Cullen, a disinterested witness, except that she is a friend of the appellants, testifies that about three years previous to her death the decedent told her that she was going to make a will and leave her property to her two daughters, and wished her to write a note for her, stating that she did not leave it to her sons and married daughter because they had never contributed to her support. On the 9th day of August, 1898, two days before the execution of the will in suit, but after it had been drawn and had been left at the house and was ready for execution, this witness, at the request of decedent, drew the following letter or note, which she thereupon signed in her presence :

“ To whom it may concern:
“ As my sons Louis, John, Peter, Theodore and my deceased .son Frank did not help me to make or keep my house, and as my daughter Mary, wife of Alex Gordon married at an early age and left me, I think it but just to leave my property to my daughters Margaret and to Elizabeth who have aided and taken care of me.
“New York, August 9th, 1898.
“ MARGARET DUNHAM.”

Emma A. Forster testified that in the latter part of July, 1898, the decedent told her mother, in her presence, that she was going to make a will and asked her to be a witness to the will and told her the same reasons for giving her property to the girls that was afterwards expressed in the above note. Mary J. Bassford, another witness, testifies that she told her substantially the same thing in. July, 1898. Wilhelmina Phelps, another witness, testifies that between the first and eighth of August, preceding her death, decedent came to her house and asked concerning Mr. Guernsy, the lawyer who she afterwards employed to draw her will. The witness recommended him and decedent then said she was going to leave her property to Margaret and Elizabeth and assigned the same1 reasons for so doing.

There is no dispute that as early as July 15, 1898, the decedent began to be ill. Dr. Joyce was called in on the twenty-third and was there again on the twenty-fourth. He called her ailments vertigo and nausea. The plaintiff offered evidence tending to prove directly and by admissions of the appellants that the decedent had for some three months or more prior to her death, been accustomed, more or less, to repeat herself in conversation ; that she was unable to sleep and would .sit by the window most of the night time ; that she was subject to dizzy spells and did not go out alone; that .she had hallucinations, especially about going to Woodlawn and about her property, erroneously believing it to be mortgaged; that she talked incoherently and had to be assisted out of her chair and had to be supported when walking and dragged her feet along; that she would sit for hours in her chair looking out of the window with a vacant stare ; that on July twenty-third she started out for a walk and after going about one hundred feet became unable to move her limbs and had' to be supported and helped back to the house where ■ she sat for hours without moving or speaking; that finally on September twenty-third she was confined to her bed and slept from Tuesday, September twenty-seventh, to Friday, September thirtieth,' with a brief awakening on the twenty-eighth owing to a blast in the street, and diéd on the thirtieth from cerebral hemorrhage.

On a recital of most of these assumed facts, a medical expert who had never seen decedent gave it as his opinion that the decedent was suffering from senile dementia. . But he .also testified that with-, oitt seeing her at the time it was impossible to say what might have ■ been the extent of her lack of mental power at any particular time and he did not assume to say that she did not have lucid intervals or show that’ she did not have sufficient mind or memory to make a will.

. The witnesses for the respondent who testified to such facts as were disputed by the appellants were Andrew B,- Gordon, a son of Mary Gordon, one of the contestants, who saw his grandmother, the deceden tj only three or four times between the twenty-third of July and the twenty-fourth of September, but could not tell when; Margaret E. Mulhérn, also a daughter of- said Mary Gordon, who saw the decedent about July tenth, again about the twenty-sixth or twenty-eighth and again about August fifteenth; Mary A. Gordon, one of' the contestants; Mary A. Trainor, disinterested, who saw the deceased only on the fifteenth of August; and Harry A.. Dunham, son of one of the contestants, who saw his grandmother only on the seventh and eighth of August.

, The appellants were given credibility by being called as witnesses by the respondents to give material evidence, but respondents objected to their testifying as to their mother’s condition on the ground that they were rendered incompetent by section 829 of the Code of Civil Procedure.

. It appears that decedent managed the house up to the last year of her life and paid her own bills up tó within three weeks of her death and kept charge of her own money to the last. She was sufficiently well and strong to go in bathing in the sound on July fourth.

On the other hand, Dr. Joyce, the attending physician, testifies that he was called to see decedent on July 23, 24, August 24 and September 19, 1898; that there was nothing peculiar about her eyes, nor incoherent in her speech that he noticed; that she was not in bed on any of these occasions; that the day of his first visit she had an anxious look, disturbed as to her condition; that he conversed with her for five or ten minutes, and that he believes that she was of sound mind.

Letitia McGowan, who lived upstairs in decedent’s house, testifies that she saw decedent almost daily and spent much time in her company; that decedent walked about the house alone and out in the garden and on the street.; that on the fifteenth of August decedent came to her room and listened to a neighbor play on the piano; and that on the first Sunday in September decedent went out on the grass plot and had her picture taken with others of her family ; that she noticed nothing peculiar in decedent’s walk, conversation, expression or countenance; that she never mentioned mortgages on the property; nor did she ever hear of her sitting hours with a vague stare in her eyes.

Wilhelmina Phelps testifies that she had known decedent for twenty-five or thirty years ; that she saw decedent in July, 1898, at decedent’s house and again at witness’ own house on the eighth and fifteenth of August; that decedent asked about Mr. Guernsy as a lawyer, and said she was going to make a will and leave her property to her two girls; that' witness suggested that it might make trouble, and decedent replied that she could not help it if it did ; that decedent walked into her yard and up two steps and sat on the third and walked away again, and did not use a cane or anything else to walk with.

Emma A. Forster saw the decedent frequently between July fifteenth and the time of her death, and never saw anything unusual about her walk, eyes or actions. Decedent did tell her she was expecting an assessment for widening the street and curbing the sidewalk.

Mary J. Bassford, seventy-nine years of age, and a friend of decedent for twenty-five years, testified that she saw decedent often during the summer of 1898 at witness’ house and at decedent’s house; that the decedent called at her house August tenth; that the two houses were nine blocks apart, and Elizabeth testified that she and her mother walked there that day. Mrs. Bassford testified further that she had frequent conversations' with decedent and nothing peculiar attracted her attention that decedent never mentioned mortgages, did not repeat herself; that her eyes were bright and she was able to walk without assistance, and was active on her feet generally. This is the witness who testified to the reasons decedent gave for leaving her property to her daughters.

The respondent also vouched for the credibility of the three subscribing witnesses to the will by calling them as witnesses, and they each and all testified that the decedent was up and about and able to move around, and was. apparently in usually good health and strength on the day of the execution of the will.

The decedent, on the 11th of August, 1898, executed the will, which is simple in its terms, and under the circumstances the testamentary disposition of property therein made is perfectly sane and natural. There is no evidence of undue influence. The appellants did nothing that would not be expected of dutiful daughters, responsible for the care of their aged mother, to whom they were devoted and who was fond of thém. There is no evidence that she did not desire them with her constantly, or that they were not acting solely at her instance in what they did toward effecting the execution of the will.

A careful examination and consideration of the evidence, a brief summary of the essential features'of which we have endeavored to epitomize, leads irresistibly to the conclusion that the finding of insufficient testamentary capacity to make a valid will is against the weight of evidence. The right of testamentary disposition would be unsubstantial and of doubtful value if the courts would decline to set aside a verdict of incompetency supported only by evidence tending to show old age advancing more rapidly than ordinarily, and the preliminary symptoms of approaching dissolution.

In view of the circumstances, we have no hesitancy in saying that the verdict appears to be explainable only on the theory that it is the result of passion, prejudice or inattention to duty on the part of the jury.

It follows that the judgment and orders appealed from should be reversed on the ground that the verdict is against the weight of evidence, and a new trial granted, with costs to appellants to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  