
    Matter of Proving the Last Will and Testament of Mart V. McCusker, Deceased.
    
      (Surrogate’s Court, New York, County,
    
    
      March, 1915.)
    Wills—Testamentary Capacity—When Testatrix Not Subject to Undue Influence—Evidence—When Will Entitled to Probate,
    If a testatrix at the time of making her last will is capable- of appreciating the value of her property, and can recollect -her relatives and any possible claimants- upon her bounty for a sufficient length of time to enable her to form a rational judgment concerning these elements, and1 if she can appreciate the scope and bearing of all the provisions of her will, she has testamentary capacity.
    Testatrix, about three months before her death, executed her last will by which after various- small legacies to several relatives, friends and institutions she gave the residue of her estate amounting to about $80,000 to her real estate agent and her attorney, who did. not draw the will, in equal shares and named both of them as executors. After explaining in the will why she left nothing to certain relatives, and , after directing that nothing should go to certain other relatives because of the trouble they had caused her, she embodied in the will the following: “My other relations, if any are alive, I have not seen or heard from in many years. They never manifested any interest in me nor called upon me in sickness or at any other time. They had no interest in me, nor I in them.” This statement in the will was fully borne out by the testimony. The probate of the will was contested- by second and more distant cousins of decedent on the ground of testamentary incapacity and -undue influence. Reid, upon consideration-' of the evidence, that testatrix understood’ the scope and nature of her will, was legally competent and capable when she executed it; that it expressed her free and voluntary act; that she was not the subject of undue influence in the execution thereof, and that it was entitled to be admitted- to probate.
    Proceeding upon the probate of a will.
    James F. . Donnelly (John T. Smith, of counsel), for proponent.
    Henry Braun, Jr., f-or contestant Agnes McManus.
    
      Frank M. Patterson, for Bridget C. Dowling, as general guardian of John W. Farley and Richard Farley.
    James M. Tully, for contestant Jane Jackson.
    Sykes; McCole & Potter, for contestant Leona J. Kip.
    Joseph Fennelly, for contestant Mary I. Kerman.
    W. W. Irwin, for other contetsants.
    Don R. Almy, of counsel, for all contestants.
    Frank T. Fitzgerald, special guardian.
    James M. Doniohue, special guardian for Helen, John, Elizabeth, William and Mary Rooney.
    Thomas J. L. McManus, for Franklin Ryan.
   Cohalan, S.

Mary V. McCusker died September 17, 1913, at the age of seventy-four years. Three months before her death she executed the paper offered for probate herein as her last will and testament. The value of her estate is said to be about $100,-000. The will gives various small legacies to several relatives, friends and institutions, and the residue, which may amount to about $80,000, is divided1 equally between the testatrix’s real estate agent, James J. Etchingham, and her attorney, John A. Rooney, both of whom are named as executors.

The contestants are second and more distant cousins. After explaining in the will why she left nothing to the McCusker relatives and after directing that nothing should go to the Ryan relatives because of the trouble they had caused her, the testatrix stated in the sixth clause of the will: “ My 'other relation®, if any are alive, I have not seen or heard from in many years. They never manifested any interest in me nor called upon me in sickness or at any other1 time. They had no interest in me, nor I in them.” The testimony fully bears out this provision of the will.

The deceased bad been a public school teacher in Hew York city for about forty-five years, until she was retired on a pension February 1, 1899. Her mother died in 1877. Her sister Sarah was an inmate of Bloomingdale Hospital and died there Hovember 11, 1904, of chronic melancholia. On June 7, 1898, after a few months’ illness, the deceased was legally committed • to St. Vincent’s Retreat for tine Insane at Harrison, U. Y. She went there voluntarily and was aware of her condition. At the time of her commitment she was very much depressed and despondent and had hallucinations. She quickly improved however, and was permitted to go home October 27, 1898. She was again at St. Vincent’s Retreat as a voluntary patient from April 26, 1906, to September 26, 1906,' and from June 11, 1912, to May 31, 1913. Several nurses of that institution testified to acts of the testatrix while she was at St. Vincent’s, which they characterized as irrational. Most of the so-called irrational acts were only eccentricities. Whatever mental aberration they indicated was temporary in character. Dr. Brooks', who was the physician in charge of St. Vincent’s Retreat, and who had' attended the testatrix while she was an inmate there, was the contestants’ expert on the question of testamentary capacity. He said that in his opinion Miss McCusker was insane in March, 1913, and was not competent to make a will June 9, 1913, although he admitted that she was sane in February, 1913, and that he had asked her to make a will at St. Vincent’s at that time.

In 1901 the testatrix met James J., Etchingham, one of the executors and residuary legatees named in the paper propounded. Etchingham subsequently acted as her real estate agent, and up to about 1907 hie collected and turned over to her the rents of her real property and transacted the business incident thereto under her direction. Her letters written' during this period show that she was undoubtedly competent and capable in business matters. In 1908 the testatrix became involved in litigation with a Margaret Y. Ryan, with whom she had lived a year or two before. Etchingham recommended Rooney to Miss McOusker, and he acted as' her attorney in the action against Mrs. Ryan. Rooney conducted the action successfully and secured from Mrs. Ryan restitution of the houses' and other property that Miss McOusker claimed had been taken from her. During the pendency of the Ryan-McCusker litigation Rooney visited the testatrix weekly. The Ryan litigation seems to have been her chief interest and her main topic of conversation during the last five years of her life. After the termination of the suit she gave Rooney full power of. attorney to look after her financial affairs. Thereafter1 he was accustomed to draw checks and attend to various other details which the testatrix had formerly attended to- personally.

The will was prepared by another lawyer, an acquaintance of Rooney. The draftsman was given full and explicit instructions by the testatrix herself on the evening of June 6, 1913, at Ho. 210 East Eorty-ninth street. An appointment was made for June 9, 1913, and Miss McCusker’s attending physician was asked to be there to witness the will. On the evening -of June 9, 1913, the will was executed. All the necessary formalities were complied with. The witnesses were the draftsman (an attorney) and the physician. The draftsman talked with Miss McOusker about various matters for about an hour while they waited for the arrival of the physician. The testimony cf the subscribing witnesses leaves no doubt in my mind as to her competency at the time. Her physician had been attending her for nine days, and he testified that during that time she was able to walk about with assistance -and that at the time she executed the will she was of sound and disposing mind and memory.

The testatrix died three months after the will was executed. She was stricken with cerebral apoplexy in August, 1913, and died about a month later. During the last four or five years of her life the testatrix had been in ill health caused generally by the decline accompanying “ old age.” She suffered from arberio sclerosis; Bright’s disease and muscular weakness of the heart. These ailments had been slowly progressing for several years.

The paper propounded is substantially the same as1 the will executed by Miss McCusker August 28, 1909, four years before her death and only a year or two after she met Rooney. A codicil was executed in November, 1910, which made some minor changes in the will of 1909 and confirmed the provisions of that will giving the residuary estate to Rooney and Etchingham.

The testatrix had a right to will her property as she desired. If, at the time of executing the will, she was capable of appreciating the value of her properly,and could recollect her relatives and any possible claimants upon her bounty for a sufficient length of time to enable her to form a rational judgment concerning those elements, and if she could appreciate the scope and bearing of all the provisions of her will, she had testamentary capacity. I am of opinion that the testatrix understood the scope and nature of her will and was legally competent and capable when she executed it. I am also of opinion that the paper propounded expresses her free and voluntary act, and that she Avas not the subject of undue influence in the execution thereof.

The paper propounded is- entitled to probate as the last will and testament of the deceased.

Probate decreed.  