[114 N.Y.S. 668] Edward R. Foreman and John Desmond, for appellant.
Fletcher C. Peck, Eugene Van Voorhis, and George H. Smith, for respondents.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
The decree should be reversed upon questions of law and of fact, and an order made directing the trial by a jury of the material questions of fact arising upon the issues between the parties, under section 2588 of the Code of Civil Procedure, with costs to the appellant to abide event.
We are not satisfied with the result in this case, and therefore think there should be another trial before a jury, in accordance with the rule laid down in Matter of Burtis, 107 A.D. 51, 94 N.Y.Supp. 961, and the cases therein referred to, which was decided by this department, and has been followed in many cases since decided by us.
How much should be said about the facts, when another trial is to be had, is a question involving some difficulty. We feel, however, that some reasons should be given for our action, which necessarily involves considerable expense to the estate and the parties interested therein.
Mercy A. Jeffrey, a widow, died in the city of Rochester, October 13, 1906, at the age of 80 years. She made two wills prior to her death. One was executed October 2, and the other October 11, 1906, both within 11 days of her death. She was sick and feeble when these wills were made. She had no serious disease. She died of diarrhœ a. She was a white woman. She was twice married. Her first husband was a white man, and by him she had a daughter, who married Mr. Schantz. Her second husband was a negro, Roswell D. Jeffrey, by whom she had no children. Mr. Jeffrey had formerly been married, and had a son by such marriage, Roswell J., who with his wife, Hester C., were negroes. The marriage of deceased and Mr. Jeffrey took place October 10, 1861. I do not find any statement in the record as to when Mr. Jeffrey died, but it was many years ago, and for 15 years prior to the death of the deceased she lived in the family of the Schantzes, her daughter and son-in-law. He kept the house. The daughter died in January, 1904, leaving her husband and their three [114 N.Y.S. 669] children, a daughter, Mercy E., 14 years of age at the death of her grandmother, a son, Joseph M., 12 years of age, and another daughter, Marion F., 9 years of age, and then the deceased, the son-in-law, and the three grandchildren continued to live as one family until the death of deceased, two years later. Mr. Schantz was a business man, engaged in the furniture and mattress business in Rochester. That was the trade which he had always worked at. He was on good terms with deceased. She at one time, June, 1902, loaned him $10,000 to put in his business, and took his note for it. She advised with him as to her property and business, and he did business for her, as to the rental of her real property, the amount of rents to be charged, and the character of the tenants, repairs, new construction, and the placing of fire insurance policies. The deceased at her death had real property of the value of about $100,000, no part of which came from her husband, Mr. Jeffrey, and $50,000 of personal property.
In 1906 her stepson and daughter, Roswell J., and Hester Jeffrey, were frequent visitors at the Schantz house, and were more or less with deceased while Schantz was away at his business. Deceased was taken sick along in September, 1906, and Dr. Wilburn, attended her. She had a nurse also, Martha C. James; and then there was a Mrs. Nellie Hackett, who was a friend of deceased and was a visitor at the house also. She was looking after some compensation for former alleged services rendered deceased. There was talk of a provision for her benefit in the will, but deceased was finally induced to and did give a check for $1,500 to Mrs. Hackett in September, 1906. Then there were two lawyers called to the house by Mrs. Hester Jeffrey or Mrs. Hackett, Quincy Van Voorhis and George H. Smith. These people had to do with a will executed by deceased October 2, 1906. They visited the house, and did their work during the hours of the day when Mr. Schantz was away from home, engaged in his business. The will was witnessed by the nurse and a neighbor, Mrs. Ream, who was called in by Mrs. Hester Jeffrey, and Van Voorhis took possession of it and carried it away. The deceased had on deposit in the Alliance Bank of Rochester $3,452.74, and October 3, 1906, the next day after the will was executed, the deceased made a power of attorney to Mrs. Hester Jeffrey to draw checks upon this account.
Mr. Schantz was not aware of what was going on while he was away from home, or of the making of the will and power of attorney by deceased, and apparently did not hear about them until the 11th of October, 1906, when it seems he went to Van Voorhis' office and asked him if he knew whether deceased had made a will. Van Voorhis said she had, and he wanted to know when it was made. Van Voorhis told him the 2d of October. Schantz asked if he, Van Voorhis, had it, was told that he had, and asked to see it. Van Voorhis told him it would not be proper for him to show it to any one, but he did not think it was a will he, Schantz, could find any fault with. Schantz was then in this position. The deceased was old, feeble, sick, and had been for some time, certainly from a time prior to the execution of the will and power of attorney. While in this condition she had a will, and he was not permitted to see it or know [114 N.Y.S. 670] its contents. His three infant children were her only blood relations, and he was their father, their natural protector. The deceased was liable to die before very long, and until she died, neither he nor the children could know whether the interest of the children had been sacrificed for the benefit of others, especially the stepson and his wife. It was at least suspicious that the doing of the business, whatever it was, had been and was being kept entirely secret from him and the children. It is very probable that Mr. Schantz then did what he could to protect his children. The nurse and physician who had been in attendance upon deceased while these secret meetings were being held in his absence were discharged, and others procured to take their places, another lawyer prepared a second will, and it was executed October 11, 1906, and there was also executed at the same time by deceased a general power of attorney to Schantz to do her business.
Whether this will was procured by reason of the incompetency of the deceased, or by the use of fraud or undue influence, is the question involved in this litigation and the one passed upon by the surrogate.
Mr. Schantz and the children were not competent witnesses as to transactions with the deceased. The persons who did have personal transactions with the deceased concerning the execution of the will were witnesses before the surrogate, and then there were witnesses upon the other side, and among them the stepson and his wife, Mr. and Mrs. Jeffrey, who gave the most important evidence and that relied upon materially by the surrogate in deciding to deny probate to the will. These two witnesses were incompetent to testify to personal transactions with the deceased, and their evidence should not have been received, considered, or relied upon by the surrogate.
A comparison of the two wills executed by the deceased shows a very material and important difference therein. Both wills contain provisions for the payment of debts, funeral expenses, etc., and then the first will gives to Mr. and Mrs. Jeffrey a house and lot on Hester street, in the city of Rochester, to be free and clear of all incumbrances, and the remainder of her property to the three grandchildren and the survivors of them, but directs the executors to take possession of the property and collect the income therefrom, to sell and convey same, in their discretion, and to divide the property between the persons entitled thereto in such manner as to effect in their judgment a fair, equal division thereof, the division not, however, to be made until the youngest child, 9 years old, becomes 21 years of age, unless the executors think best to make a whole or partial division sooner, the income, and, if necessary, the principal, to be applied to the maintenance, support, and education of the children. Eugene Van Voorhis and George H. Smith, one of the lawyers who was consulted about the will, are made executors. There is also a provision for the benefit of Mr. Schantz, giving him one-half of an indebtedness alleged to be owing by him to deceased of $10,000 (on the trial it was shown this indebtedness was discharged, in 1904, two years before the making of the will).
The second will gives all the property of the deceased to Mr. Schantz and his three children in equal quarterly shares, contains a power of sale, and appoints Mr. Schantz executor. When this last will was presented for probate, citations were issued to the three children [114 N.Y.S. 671] only, but Mr. and Mrs. Jeffrey and the two executors named in the first will came into court and made affidavits as to their interests under the former will, and upon their application were made parties, and answered contesting the probate of this the second will.
The surrogate appointed Mr. Peck, guardian of the three Schantz children, to look after their interests in the matter, and he also answered contesting the probate of the second will. He entered very vigorously into the contest, took a leading part, and attacked the father of his cestui que trust, charging him with fraud, undue influence, and with securing the will from the deceased when she was wholly incompetent and had no knowledge of what she was doing. He presents the only brief made in this court in support of the decree, and in that brief he argues at some length that the first will is the better one; that it expresses the intelligent, deliberate purpose of deceased, was the product of long consideration and consultation with her trusted attorney, etc. Very likely it was within the province of the guardian, when called into court, to determine which side of the controversy, if either, he should espouse, which will he should support and seek to uphold, and we cannot say that he did not act in accordance with his best judgment, but taking into consideration the contents of the two wills as affecting the interests of the two infants, and the secrecy with which the first one was made; the fact that Schantz was the father of the children, that they were young, and that he was their natural protector, and more interested in them than strangers could be; that the first will tied the property up for years in the hands of lawyers, as executors, who would be entitled each to full fees as executor, the estate exceeding $100,000; that it made no provision whatever for Schantz, the natural protector of the children, the husband of the deceased's daughter, and in whose household she had lived for many years, and whose advice as to business matters she had taken-it seems to us unfortunate that the guardian could not have ...