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Scott v. Barker

Supreme Court of New York, Appellate Division

December 18, 1908

SCOTT et al.

[113 N.Y.S. 696] Albert W. Ransom (David Leventritt, of counsel, and Clayton J. Herrmance, on the brief), for appellant.

Parker & Ernst (Morgan J. O'Brien, of counsel, and Ashton Parker and J. Brownson Kerr, on the brief), for respondents.



The plaintiffs, the daughters of George A. Barker, deceased, brought this action under section 2653a of the Code of Civil Procedure to test the validity of a paper dated October 4, 1906, and admitted to probate by the decree of the surrogate of the county of New York on the 25th of March, 1907, as the last will and testament of George A. Barker, deceased.

The will is short and simple. After directing the payment of debts, funeral and testamentary expenses, it provides as follows:

" I give, devise and bequeath unto my wife Edith M. Barker, all my property and estate of every name, nature and description of which I die seized or possessed, or to which I may be entitled, including any and all interests in remainder or otherwise in the estate of George Bell, deceased. Lastly, I nominate and appoint my said wife, Edith M. Barker, executrix hereof."

Section 2653a of the Code of Civil Procedure, giving a right of action triable by a jury to determine the validity of a paper admitted to probate as a last will and testament, provides that on the trial of such an issue the decree of the surrogate admitting the will to probate shall be prima facie evidence of the due attestation, execution, and validity of such will; that the party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence, and rebutting testimony may be then offered as in other cases. The burden of proof, therefore, rests upon the attacking party. It is the law of this state that, so long as a question of fact exists, it is for the jury, and not for the court (McDonald v. Metropolitan Street Railway Co., 167 N.Y. 70, 60 N.E. 282), and the same rule obtains in will contests. " Questions of fact arising in an action to determine the validity of a will are no different in this respect from questions of fact in any other case." Hagan v. Sone, 174 N.Y. 317, 66 N.E. 973.But these rules are also established by the same cases:

" Wills are not to be set aside by juries except for the gravest reasons. A person has the right to dispose of his property in such way and to such persons as he thinks best. It is only in a case where there is sufficient proof of [113 N.Y.S. 697] mental incapacity or of undue influence that courts or juries may annul his testamentary act." Hagan v. Sone, supra.
" If a court of review, having power to examine the facts, is dissatisfied with a verdict because against the weight or preponderance of evidence, it may be set aside." McDonald v. Metropolitan Street Railway Company, supra.

It is the duty of this court, mindful of the rule that wills are not to be set aside by juries except for the gravest reasons, to review the facts testified to in the case at bar, and to determine whether the verdict is supported by the evidence, or is contrary to the weight thereof.

George A. Barker died on the 24th of January, 1907, then about 62 years of age. He left surviving him two married daughters by his first wife. That wife died on September 4, 1905. Decedent and his first wife had been separated for many years prior to her death, for what reason, and under what circumstances, is not disclosed in the record. On the 1st of October, 1906, decedent was married to the defendant Edith M. Barker by a clergyman and in the presence of witnesses at his residence at Baldwins, Long Island. On October 4, 1906, the will was drawn and executed at his said residence. On the 9th of October he and his wife came to the city of New York, transacted some business, including the hiring of a safety deposit box, and then went to Saranac, in the Adirondacks, where they remained until October 22d, when they returned to Baldwins, arriving there on October 23d. On November the 19th they moved to the Cumberland Hotel, in the city of New York, and, after remaining there for a while, went to the Hotel Gramatan, Westchester county, where he died of cirrhosis of the liver and kidneys and arterial sclerosis. There is, and can be, no dispute as to the factum of the will. It was signed by the decedent and published and declared with all the formalities required by law, in the presence of two witnesses, who, at his request, and in his presence, and in the presence of each other, signed their names thereto. The daughters contest the will upon the ground that their father at the time he executed it was not of sound and disposing mind and memory, and that it was not his will, but that he was induced to make the same by undue influence. The court left three issues to the jury--incompetency, undue influence, and fraud. The jury returned a general verdict for the plaintiffs. The contention is that the decedent's mind had been so affected by long, continuous, and excessive use of spirituous liquors that at the time of making the will he was not possessed of testamentary capacity, and, further, that he was so subject to the influence of his wife that the will by which his whole property was left to her, to the exclusion of the two daughters of his first wife, was the result of her undue influence, and that undue influence so exercised constituted a fraud which vitiated the instrument.

There is no direct evidence of any kind or nature that Mrs. Barker knew that he was about to make a will or the contents thereof, or had asked him to make a will, or had exerted any influence, due or undue, in that behalf. Plaintiff's case depends entirely upon the inferences which they seek to draw from the relations which had existed for many years between the parties, and from his habits in the use of intoxicating liquors. It appears that for many years the defendant had lived openly [113 N.Y.S. 698] with the decedent in his various homes as his mistress. Whatever might have been attributed to that fact, if it had continued up to the time of the making of his will, and subsequently to the time of his death, is very greatly weakened, if not destroyed, by the fact of his ceremonial marriage to her, about the openness and validity of which there is no question, celebrated prior to the making of the will, and occurring one year and one month after his first wife's death. There is satisfactory evidence that upon his first wife's death, after their long estrangement--when begun and how caused not appearing in the evidence--he expressed the desire to an intimate friend to marry the defendant at once, indicating an intention at the first possible moment of making their long companionship, which had hitherto been illegitimate, legitimate; but upon the suggestion that, in deference to the feelings of others, he should defer the marriage until the so-called year of mourning had expired, he acquiesced, and after a year and a month carried out the intention which had long been in his mind. Marriage, under such circumstances, is as susceptible of the inference that the man desired to repair the injury done to his companion of years, to rehabilitate her so far as he could by giving her his name and his station in life, as of any other. What other reason for the marriage can be suggested? Of course, the history, the surroundings, and the precedent and attending circumstances are in such cases open to inquiry; but a meretricious relation transformed into a legitimate one, when the obstacle thereto has been removed, loses most, if not all, of the inference which might otherwise be drawn therefrom. See Leslie v. Leslie, 15 N.Y. Wkly. Dig. 56, affirmed on opinion below 92 N.Y. 636; Maynard v. Tyler, 168 Mass. 107, 46 N.E. 413; Matter of Buckley, 16 N.Y.S. 983, 2 N.Y.Supp. 24.Indeed, as we pointed out in Heyzer v. Morris, 110 A.D. 313, 97 N.Y.Supp. 131, the fact that a man has left his property by a last will and testament to his mistress is not per se a ground for declaring that disposition invalid. And in Matter of Mondorf, 110 N.Y. 450, 18 N.E. 256, the Court of Appeals said:

" Even if his relations with Mrs. Schamberg were meretricious, the law does not on that account condemn a will made in her favor. Where such relations exist, all the circumstances attending the execution of a will which may be shown to have been induced thereby will be carefully scrutinized; but the right of a competent testator to make any disposition of his property which pleases him, although it may be unjust and unnatural, will not be curtailed."

The question of undue influence, however, where that influence is not physical--that is, within the legal definition of duress--can seldom be established by direct evidence, but, like any other fact, may be established by circumstances. ...

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