FRANK X. PETTIT, Respondent,
ALICE B. PETTIT and Others, Appellants. (No. 1.)
APPEAL by the defendants, Alice B. Pettit and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 7th day of March, 1911, denying the defendants' motion for a new trial made upon the minutes.
Stephen O. Lockwood, for the appellants.
George Gordon Battle, for the respondent.
Action under section 2653a of the Code of Civil Procedure to revoke the probate of a will upon the grounds (1) that it was not duly executed; (2) that the testator did not have testamentary capacity, and (3) that the execution was procured by undue influence.
The testator, seventy-six years of age, died on the 17th of March, 1910. By his will he gave to his wife, the defendant Alice B. Pettit, stepmother of the plaintiff, an apartment house in the city of New York in which he had an equity of a little over $10,000; personal property of small value; and a cemetery plot; to the plaintiff, his only surviving child by a former marriage, he gave a cemetery plot; a gold watch and chain, and all the testator's wearing apparel; to the defendant McAllister, who had been his attorney for many years, he gave a diamond ring, studs and cuff buttons of the value of about $650; and all the rest, residue and remainder of his property, of the value of about $8,000, he divided equally between
his wife and the plaintiff. The defendant Lockwood was made sole executor. At the trial the first ground was abandoned, and the case sent to the jury upon the other two issues--undue influence and lack of testamentary capacity. It rendered a verdict in favor of the plaintiff, and the defendants appeal.
After a careful consideration of the record I am unable to find any evidence to justify a submission to the jury of the question of undue influence. Substantially all the evidence that is claimed to bear upon this issue is that the will was drawn some five months before the testator's death by the defendant McAllister, to whom were given the diamond ring, cuff buttons and studs; that the executor was a member of a law firm with which McAllister was associated; and that the subscribing witnesses were, respectively, a partner and an employee of the executor. There is no evidence that any effort was made by any one to induce the testator to make the will or to make it in the way which he did. The decree of the Surrogate's Court admitting the will to probate established prima facie its validity, and the burden was upon the plaintiff to overcome such proof. (Dobie v. Armstrong, 160 N.Y. 584.) 'What the law terms undue influence,' says the Court of Appeals in Matter of Snelling (136 N.Y. 515), 'is not established by proof tending to show that the testator acted from motives of affection or gratitude, though the objects of her bounty were strangers to her blood. The influence or moral coercion, or by whatever other term designated, must be such as to overpower the will of the testator, and subject it to the will and control of another, in which case it assumes the character of fraud.' A will cannot be invalidated on the ground that its execution was procured by undue influence unless it be clearly and satisfactorily established that the influence exerted or the power used was such as to deprive the testator of a free exercise of his intellectual powers. (Heath v. Koch, 74 A.D. 338; affd., 173 N.Y. 629; Marx v. McGlynn, 88 id. 357; Scott v. Barker, 129 A.D. 241.)
The fact that the attorney who drew the will is a beneficiary under it to a small extent does not show undue influence. (Haughian v. Conlan, 86 A.D. 290; Matter of Marlor, 121 id. 398.) This attorney had transacted the testator's legal
business for several years. He, or his firm, had also acted for the testator's wife. It is quite evident he had confidence in the firm, and was fond of the attorney, and it is not at all surprising that he should give him these articles. Such disposition, standing by itself, is of no significance whatever.
It is true that the testator gave the greater part of his property to his widow. There is nothing to show he did so by reason of any influence exerted by her, though, had she requested him to make it that way, it would not have invalidated the will. A wife has a perfect right to try to induce her husband to make a suitable provision in his will for her support. The record here discloses a very good reason why the testator should have made the provision which he did for his widow. They were married in 1894 and from some time in 1895 until 1909 she kept a boarding house and the proceeds were used towards supporting her husband and herself. There was nothing, therefore, to submit to the jury upon the subject of undue influence and the court should have so held. In submitting this question to the jury the court erred and this alone would necessitate a new trial, even though there were evidence to go to the jury on lack of testamentary capacity, because it is impossible to tell whether it found for the plaintiff upon one or both issues. ...