
    Matter of the Probate of the Last Will and Testament of Henrietta King, Deceased.
    
      (Surrogate's Court, New York County
    
    
      Filed October, 1899.)
    Will — Testamentary Capacity — Paralytic Testatrix.
    Testatrix, who had had three paralytic strokes, bequeathed one-half of her estate to a paid nurse, who had been for six years devoted to her, and the other half, about $500, to her sons, who were self-supporting. She had been separated from her husband for seventeen years, hut had been supported by him. Held, that there was nothing to show that at the time of the execution of the will that the testatrix was of weak or unsound mind or incapable of making a will.
    Proceedings upon probate of a will.
    
      George H. Finck, for proponent; Warren, Boothby & Warren, for contestants.
   Varnum, S.

Proponent’s motions to strike out hypothetical questions propounded to contestants’ experts, and the answers thereto, are granted, the contestants having failed to introduce evidence of the existence prior to the time the will was executed of all the conditions upon which said questions were based. Henrietta King, when about fifty-one years old, and ■on July 23, 1897, executed a paper now propounded as her will. She died March 18, 1899. By the terms of such will she gave one-quarter of certain stock standing in her name to ■each of her two sons, and one-half thereof to one Annie Williams, who had lived continuously with her for some five or six years as a paid nurse or companion, who was devoted to her and of whom she was very fond. The residue of her property she gave to said Annie Williams. As a matter of fact it appears that the testatrix was the owner of only ten shares of the stock in question, of the par value of $1,000, and that the residue of her estate consisted merely of certain rings and other articles of jewelry. The will is contested by Mrs. King’s husband and her two sons on all the usual grounds, the chief objections relied upon on the trial, however, being the unsoundness of mind of the testatrix, caused by disease, and undue influence exerted upon her. It appears that the testatrix had separated from her husband and had been living apart from him for about seventeen years, but had been supported by him during said period. There does not seem to have been any special alienation from her sons, although some little disagreement with the wife of one of them caused her to leave his house, where she was then residing, about a year before her death, since which time she lived apart from all her family and with her nurse, Annie Williams, above referred to, in various localities. I am satisfied that the statute regulating the execution of wills was properly complied with in this case. Although the principal beneficiary was living with the testatrix as nurse and companion, and, therefore, in a somewhat confidential relation, I do not find in the testimony anything to suggest any undue influence exerted by her, nor do I think the will so unnatural or unreasonable under all the circumstances of the case as to throw upon the proponent the burden of proof. The long separation of the testatrix from her husband, unexplained by the testimony, and the fact that each of her sons was earning his own livelihood and had his own family and interests, might reasonably have influenced the testatrix to give part of her small estate to her faithful companion and nurse. As to the mental soundness of the testatrix and her capacity to make a will, it has been shown that some fifteen or sixteen years before her death she had a slight paralytic stroke which was followed later by another, and about 1891 by a more severe one, and that in consequence her powers of locomotion were considerably crippled, her mouth somewhat distorted, and her articulation rendered quite indistinct at times. It is useless for me to enter here upon any analysis of the testimony or the views of the experts. Suffice it to say that there is no sufficient proof offered to satisfy me that at the time the will' was executed in July, 1897, the testatrix was of unsound mind or incapable of making a will. Some of the testimony offered might probably tend to show that at the time of her death, in March, 1899, and for some months prior thereto, the testatrix was of weak and possibly unsound mind, but there is nothing, in my judgment, in the evidence to show that such a condition existed when the will was made in July, 1897, about twenty months before her death. Submit decree admitting will to probate.

Probate decreed.  