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In re Probate of Will of Blaine

Supreme Court of New York, Appellate Division

March 8, 1911

In the Matter of the Probate of the Will of W. FRANK BLAINE, Deceased. WINIFRED J. BLAINE, Appellant; CHESTER G. BLAINE, Respondent.

APPEAL by Winifred J. Blaine, from a decree of the Surrogate's Court of the county of Seneca, entered in the Surrogate's Court on the 19th day of February, 1910, refusing to admit to probate a certain paper purporting to be the last will and testament of W. Frank Blaine, deceased.


David M. Dean, for the appellant.

J. N. Hammond and F. C. Allen, for the respondent.


W. Frank Blaine died January 23, 1909, leaving him surviving his widow, the appellant, and one sister and two brothers, each of full age, his only heirs at law and next of kin.

He was married to the appellant in January, 1904, and executed

Page 688

the instrument propounded on the fifth of the succeeding May, by which he gave all of his property to his wife, consisting of both real and personal estate of the value of about $18,000; and she was also named as sole executrix of said will. Upon the return of the citation for the probate of the will objections to its probate were filed by Chester G. Blaine, brother of the decedent. Probate was refused on the ground of the mental incapacity of the decedent to make a will, and that was the only question at issue.

It appears that shortly after the execution of the will proceedings were commenced to determine as to the competency of Mr. Blaine to manage his property and affairs, and proof was taken before the jury and its inquisition signed May 19, 1904, to the effect that he was incapable to govern himself or his property, and this inquisition was subsequently confirmed and the wife was appointed the committee of his person and estate. The inquisition determined that his mental infirmity dated from about April 1, 1904.

There does not seem to be much controversy over the proposition that Mr. Blaine was suffering from paresis and at times was incapacitated from attending to his affairs. Witnesses testified on behalf of the contestant to acts which impressed them as being irrational; and others on behalf of the proponent, indicating at the time they occurred, and some of which were near the time of the execution of the will, that the decedent comprehended the business he was transacting and apparently was competent to make a will. Two physicians testified on behalf of the contestant, and an elaborate hypothetical question, embodying all the facts which had been proven from the point of view of the contestant, was propounded to them, and each testified that these facts denoted that Mr. Blaine was afflicted with paresis; that it is a progressive disease, and at the time the will was executed he was incompetent to make a will. A hypothetical question similar in its facts to that above mentioned was propounded to four medical experts on behalf of the proponent and they agreed that the facts indicated that he was afflicted with paresis, and that it was a progressive and incurable disease. They, however, testified that there was nothing in the facts mentioned to support the inference that he did not possess sufficient capacity to make a will on the 5th of May, 1904, and in their opinion he did possess sufficient capacity for that purpose at that time.

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The will was drawn by Judge Townsend, the county judge and surrogate of the county, and a casual acquaintance of Mr. Blaine. Judge Townsend and Dr. Gould, a brother-in-law of the testator, signed the will as subscribing witnesses, and their version of the transaction indicates that the testator comprehended the act which he was performing.

I have gone over these facts in a very summary way, not for the purpose of passing upon the merits of the controversy, but in order to show there was a genuine contest over the mental condition of Mr. Blaine, and different inferences might well be drawn from the testimony contained in the record.

The burden is upon the contestants. The amount of property involved is considerable. The decedent left no direct descendants. The will, on its face, appears to make a just disposition of his property. There is no evidence of the exercise of undue influence, and the witnesses testifying to the execution of the will are clear in their narration of the transaction, and their evidence taken by itself indicates that the testator was competent to execute the will, and the facts should be passed upon by a jury. (Code Civ. Proc. ยง 2588; Matter of Burtis,107 A.D. 51; Mat ...

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