Tyler v. . Gardiner

The probate of the will was denied by the surrogate upon the ground that the respondent, Mrs. Tyler, had exerted undue influence over the testatrix. The Supreme Court were unanimously of opinion that no such influence was shown.

It is conceded that the will was executed in legal form — all the proof required by law for that purpose, was given. The burden of its impeachment then rested with the contestant. It is true the contestant makes a point that the testatrix was incapable of making a will from the time Dr. Clark first saw her, on the 2d of October, 1864, until she died, on the 4th. But there is no pretense for such a position in the evidence. The testimony of all the witnesses proves that her mind was sound and clear. One witness (the defendant himself) sought to qualify her capacity at another time. He is the only witness who intimated that his mother's faculties had failed in any degree. In his testimony he says: "Her mental powers, for the year prior to her death, did not appear so strong as they had been some two or three years previously. I thought I saw a falling off in her mental faculties." The only commentary necessary upon this judgment of the son, as to his mother's comparative mental condition during the last year of her life, is the fact that, for the last eight months of her life he never saw her. All the witnesses who did see her during that time are unanimous in saying that her mind was "sound and clear." Mrs. Stryker, with whom she boarded for some three months of that time in New York, and who saw her every day, says her mind was "perfectly clear and bright." Miss Cooper, who saw her very frequently, almost every day, during the same time, says, she was of "sound mind, perfectly sound;" and so of other witnesses. Besides that, three witnesses testified to the soundness and clearness of her mind when she executed this will. She died within four or five hours thereafter of bronchitis, which, like consumption, usually leaves the mind clear, up to the close of life. While in New York, though in delicate health, and under the care of physicians, she was able to attend to business and walk out, and did walk out, very frequently; she was not confined to the house. The question in the case, then, is, was this will procured by undue influence? The burden of proving such influence rests upon him who asserts it. It is alleged that the deceased was easily influenced. Who proves this allegation? The same and the only witness — the son himself. On the 5th of January, after giving his opinion as to "a falling off of her mental faculties," he adds: "Mrs. Tyler appeared to have the most influence over her during the last year of her life." Mark, that for the last eight months of that year, he had never seen his mother. Such an opinion, based upon no facts, if evidence at all, is not worth, and should not receive, the slightest consideration.

I have examined this case with care, and I have not been able to find in it the marks that usually attend a will obtained by undue influence. It is urged, as an evidence of such influence, that the deceased sent her son and his family away from her house to his own house. The act was right, eminently right. There were twenty persons in one house, and this son himself testified that "the house was very much crowded, very uncomfortably so." Who should leave? The daughter, a widow, with six children, with no home elsewhere, or the son? — a man, with a wife and three children, and "one of the handsomest farms on the island" to go to, within two and one-half miles of his mother. Should she request her son to go to his farm, "one of the best on the island," or should she send her daughter, with her six children, into the street? Any man, with the heart of a brother in his bosom, could easily decide that question. The mother did as a kind mother ordinarily would, she sought to keep them all in her house, though to her great discomfort. But the peace of her family, as she said, required their separation. She thought David did not treat his sister kindly — he was not glad to see her when she returned. It is true that his letters show a great readiness to quarrel with her, and they heap gross personal abuse upon his sister. They, in fact, quarreled, and, as to this question, it is immaterial which was to blame. They must be separated; and in a letter, dated February 10, commencing, "David," and indorsed "Mr. Gardiner," not so addressed, in kind terms she expressed her anxiety to have the occupation of her house, as she found herself "too uncomfortable to endure it any longer." An interlineation of part of a line was in her daughter's writing. The mother's decision, as to which one should leave, was the decision that every true woman in the land would have made, under like circumstances.

In a letter to his mother, written on the 14th of March, after he had left her house, the son says: "I was fully aware of the discomforts and inconvenience to which you submitted so patiently, in a crowded house, and with impaired health. It appeared to me quite unnecessary — certainly, I was not the cause of it." He not the cause? Then who was? Did his family (himself and wife, three children and servant), add nothing to the crowd? Surely, his widowed sister and her children had as much right as this son and his in her mother's house. In the same letter he adds: "Had I left your house otherwise than at your request, I could not have felt that I had done right toward you." This would look as if he thought he had been staying there for the benefit of his mother, not his own. Yet, when requested to leave, and allowed to go to his own farm, this jealous, suspicious son is greatly outraged. Under date of the 8th of March, he complains to his mother that he has been "thrust from her presence with a family of little ones, through a course of deception, misrepresentation and intrigue practiced upon her." This "deception," c., is emphatically denied by his mother. But, under the facts, as conceded by the son (of an overcrowded house, causing "discomforts and inconvenience to a mother with impaired health"), how unmanly and unjust his complaints at the action of his mother.

It is, also, insisted, as an evidence of undue influence, that the intestate labored under a misapprehension of facts, and that this misapprehension was caused by her daughter. The first alleged delusion is, that she was induced to believe that her daughter was poor and her son rich. The will and the testimony both show that deceased knew the actual facts as to each; she stated them several times, and they are nowhere contradicted. The deceased never said in her will, or elsewhere, that her son was rich. She said, and its truth is not denied, that he had one of the handsomest farms on the island, and that his wife's father was rich. The character of the farm is not denied, and the wealth of the wife's father is proved to be a fact. As to the poverty of her daughter, the deceased knew the daughter had some property in Virginia, but she also knew that she had suffered great losses during the civil war. She made the larger provision for her, because, as she expressly stated in her will, her daughter had "been subjected to much injury and loss during the existing war, and had been obliged to leave her home and come north." No witness denies a word of that statement. It is conceded that the daughter had some fifteen hundred acres of land in Virginia, on the James river, and she had a summer house and some three acres of land near Point Comfort. In the will this property is particularly mentioned. She gives her the income of a larger share of the city property for life, "unless the loss and damage which her property, situated on the James river, and her property situated near Old Point Comfort, in the State of Virginia, shall have been sooner restored to her by the federal government." It appeared, from the testimony, that the farm of fifteen hundred acres "was in ruins;" that the furniture in the dwelling was all destroyed, even to the "curtains." There is no evidence in the case as to the value of the daughter's property in Virginia. It could afford her no income — none whatever. If we might refer to our individual knowledge and information as to such land, we should not place a high value upon the worn-out land of Virginia, which had laid in ruins for some years during the ravages of the civil war, especially if the owners were compelled to pay taxes upon them. There are, probably, thousands of such places for sale now in the South, and few or no purchasers. Could a woman, with a family of six children, possessed of that ruined property alone, with nothing else to live upon, be regarded or spoken of as otherwise than poor? The civil war was then still pending. This is all the property the daughter had, or it is claimed she had; and the fact was well known to the deceased for a year prior to, as well as at, the making of the will. Upon these facts, no one, who does not willfully deceive himself, or wish to deceive others, can claim that Mrs. Gardiner was under any delusion as to her daughter's property.

The other misunderstanding, as claimed, is, that in her will, she releases to her son all claims she has against him for moneys advanced for the purchase of his farm, and all other claims and demands against him when, in truth, she had made no such advances, and had no claims against him. There are several answers to this proposition.

First. The evidence is quite satisfactory that she had made advances to purchase the farm, and that her son was indebted to her. The farm cost $13,250, and $5,000 had been paid on it: the mother's place cost $9,500, and $4,500 had been paid thereon. The son lived with his mother after he attained his majority, and after his father's decease, from 1844 to 1849 — five years — supported entirely by her in handsome style — I infer from the locality, in the city. He had been admitted to the bar, but never practiced. In 1849 he went to California, he says at his own expense, mined and traded there, and returned in June, 1851. From that time until February, 1864, he lived with, and was supported by, her. He was married in 1860 — it must have been in the first of the year, if not in 1859; and his wife and family all lived with his mother. He kept a horse and a servant. Prior to the arrival of his sister and children in the last of November, 1863, the family consisted of the deceased and her grandson, her son David and his family, although some of his sister's children were there prior to their mother's arrival. Yet for the two years prior to 1864, with a property, estimated by the son, at about $135,000, exclusive of debts, the expenses of the family considerably exceeded the income, under his management. He says that $3,500 must be raised to pay back taxes and assessments, besides one $800 assessment then unpaid. To this, add $1,200 a year (his charge for attending to his mother's business), and $500 a year for extra supplies to his mother from his farm, as he claims, and the deficiency of his mother's property, under his care, to meet current expenses, was large. Who spent the money — the large income from her property? Where did it go? The uncontradicted statement of the mother was, that she "practiced the greatest possible economy, and entered into no expenses to serve her own purposes, and made no purchases for house or clothes that she could avoid." She even kept but one horse, as I infer from his letter, speaking of the expenses of keeping her "horse." The son and his family, his horse and his servant during this time, constituted the large share of the whole establishment. What services did he render that compared in value to the amount of these heavy expenses, incurred largely for him and his family? From 1851 to 1864 he attended to his mother's business. What did he do? He says he was engaged in collecting the rents, attending to repairs, and erecting buildings in New York. Some buildings were torn down in the Bowery, and were erected in 1856, and completed in 1857, under his superintendence, as he says. Yet, architects were employed to draw the plans and oversee the erection, for which his mother paid. All he did was, he "was there occasionally" (to use his own language) "to see that the work was properly done" — this "occasional" attendance running through, perhaps, a year and a half. As to the rents, c., he literally did nothing, as appears in his own evidence. It was all done by sub-agents, who were paid full prices (five per cent), as the son testified on cross-examination, "for collecting the rents, paying the bills for repairs, attending to the lettings, ousting tenants in case rents were not paid, attending to the insurances generally, sometimes to the taxes, making up their accounts and handing them to him." What, then, did the son do in reference to all these services? He answers: "I handed them (the accounts) to my mother." He did not even do that, in fact. The accounts of her rents, for the years 1859 to 1863, inclusive, were not given her until May 6, 1864, as appears by his letter of that date, though repeatedly requested to do so. He and his mother, together, occupied the place where she died, of about eleven and a quarter acres, and he says he directed the hands how to manage that. But it would seem that he failed, from 1853 to 1864, to raise oats or straw enough for his horse and his mother's horse, but he was compelled to get the deficiency from his own farm. He kept his mother's money and his own together, promiscuously, in the same bank account. His papers did not show, and he could not tell, what particular money he had deposited, or for what he had drawn it out. He sold the East Hampton property for his mother, in 1852, for $5,000. He says he paid $3,000 of it on a mortgage, and the other $2,000 was used in family expenses. This is all the reduction his services ever made on any mortgage. When inquired of, whether the rents and income were not sufficient to support the family, he answers: "I don't know." Though he had the entire charge as agent, he had no idea of the amount of the family expenses, nor, from the nature of the case, did he know his own, which, he claims, were small, and some of which, he claims, were paid from his own means. When removed from receiving the rents of his mother, debts and taxes stand unpaid, and for months his mother is left without means for household expenses, and tries, in vain, to learn the condition of her property. Ultimately, she finds a deficiency that astonishes her. He charges $1,200 per annum for services as agent, and $500 for annual supplies from his farm from the first year he bought it, without being able to specify anything that approached that amount. The checks from his check-books throw no more light upon his account, so far as the case shows, than would so many leaves from the coast survey. (It may be here added, that the son, in answer to his mother's expressed surprise at so great a deficiency in her money matters, wrote to her on the 16th of May, that he had observed "rigid economy," and "I kept an account of all expenses incurred, appertaining to the family as well as my own personal matters." If this were true, where is that account, and why was it not produced by him ?)

His answers seemed perfectly natural to the inquiry, what moneys his mother advanced him to buy the Northfield farm: "None, to my knowledge." So as to what claims she had against him at the time of her death: "No claim, that I am aware of." Of course he did not know, and his answers here were just as proper as they were to the question, whether his mother's rents and income were not sufficient to support the family without using the $2,000, proceeds of sale of the East Hampton property, and he answered there as here, "I don't know." Yet this $2,000, that he "don't know" whether it was necessary to use for family expenses, was received shortly before the purchase of his Northfield farm. He says he used the money he made in California to purchase that farm. It was impossible for him to say that, as all his and his mother's funds were deposited to one account; and how much he spent for the one or the other, he admits his utter inability to tell. Whether an advance was made with her money or with his, no one could tell. He admits he never furnished a dollar for the support of the family from 1844 to 1864. As between strangers, I think no fair man would hesitate to say that the balance of the accounts from this evidence was considerably against the son at his mother's decease. It is said his mother thought otherwise, as appeared by her other will. If true, that was in 1858, and she had not then supported her son, with his wife and family, servant and horse, for some four years. Besides, she did not then know, as appears by her letters, the great deficiencies in her means, while her property was under his charge.

There is another consideration. His mother, in giving instructions to her lawyer for drawing her will, distinctly told him that she had made advances to her son toward buying the Northfield farm; she did not say how much; could not state the amount; but she had made some. Does the son intend to say that his mother was guilty of a falsehood at that time? There is no evading this position by saying that his mother was then in extremis, or that she had been deceived by the daughter. As shown by the testimony of the most intelligent, impartial witnesses, who had known her for years, her mind was shown to be, then, "as clear as it had been at any time previous." The natural inquiry by the lawyer, on his return with the will drawn, when informed that she was worse, whether there was any doubt as to her ability and capacity to make a will, was answered by the medical attendant, that "there was none; that her mind was perfectly clear." After conversation with her as to the execution of the will, the lawyer gives the same opinion, and there is no contradiction.

As to deception by the daughter, there is no proof that the daughter ever said a word on the subject to any one. In her instructions to the lawyer, nothing was said as to other claims; but the mother released the son in her will from all other claims.

As a witness, the son is not presented in the most favorable light. He stands alone, and is contradicted by every other as to a material fact. He destroyed evidence — letters of his mother, as he first said, "not thinking it important to retain them;" and he "accidentally" preserved some. After conversing with his lawyer, some days after, he then says he destroyed them because he "thought they were dictated by Mrs. Tyler, and he was incensed." His indignation was discreet. It obviously destroyed only such letters as he deemed unfavorable to him. It carefully preserved the first, which, in his view, this reason for the destruction of the others should have clearly destroyed.

Second. But, if the balance should be in favor of the son, it is clear, from what has been said, that she had the best reason for believing it to be otherwise. Under the exact facts, as detailed by the son himself, she had a right to say that the advance for the Northfield farm had been made more from her funds than from his, and he could not deny it. It was taken from a common fund, which she chiefly supplied. If she were mistaken, it would be quite absurd to say that her will was void, because she had made a mistake as to the balance of accounts between her and her son.

Third. Whichever way the account stood, it seems clear that it did not influence deceased in making her will. She had abundant reasons for believing that she had made advances, and had claims, and she released them simply to cut off one ground of strife. The reasons for her larger provision for her daughter is plainly stated in the will itself. She says, in the sixth provision, that it was because of her losses in the civil war. It was true. This reason was given by the testatrix herself, and was not in the memorandum of her daughter to Mr. Clark. It was because of the then condition of her children.

It is also intimated that her son was not admitted to her presence after he left her house in February, 1864. All the proof as to that is, that he called at the house, as he says, "several times," but did not see her. He does not pretend he was ever refused admittance to her presence — gives no reason why he did not see her, or whether she was at home when he called. She was in New York for the three summer months, as he knew. The daughter called to see her there three or four times a week — the son never — nor did he ever call after her return to her home — up to the hour of her death. Yet, on this evidence, it is said he was not admitted to her presence; and an authority is gravely cited as to the effect of excluding an heir where a will is made during such exclusion.

It is also said that the mother was put into a state of causeless alarm by her daughter as to the condition of her property. The case shows no alarm whatever, except her great surprise caused by the letter of the son himself, that her expenses for two years had exceeded her income. And, on this evidence, an authority is cited as to the effect of a fraudulent and false alarm, caused by a son, whereby his old father was induced to put all his property into his son's hands to prevent its being seized by creditors. How pertinent is such a case to these facts.

Finally, there is not a word of evidence that her daughter induced her to make this will — even by proper persuasion and from legitimate considerations, as she lawfully might. All the proof on that point is, that she treated her mother with the kindness of a tender and affectionate daughter. No law, human or divine, condemns such conduct.

It is worse than idle — it is delusive and impertinent — to cite authorities — that, where the party benefited drew the will, or caused it to be drawn, and attended to its execution, and the testator was old, nearly idiotic, infirm, and the evidence failed to prove that he ever understood it, that it was even read to him — as applicable to this case. Such, in substance, is Delafield v. Parish (25 N.Y., 197). Parish could communicate with no one but his wife, the beneficiary. Also, Lake v. Ranney (33 Barb., 49.) In the latter case, Mr. Justice ALLEN stated that, when the will is prepared by the party principally benefited, an exception prevails, and it is necessary to prove that the testator had full knowledge of the instrument and its contents, and executed it freely and without undue control, especially if the circumstances are suspicious. Van Pelt v. Van Pelt (30 Barb., 134), is to the same effect. Part of the head-note to this case is: "When the testator is unable to read or write, is extremely ignorant, weak in understanding and susceptible to influence, a simple compliance with the statutory forms of execution will not be sufficient." The court, there, reviewed the evidence showing the nearly idiotic condition of the deceased; that his will was unjust and contrary to all his previously expressed views, and then adds: "The testimony of an unimpeached, impartial witness, that it had been carefully read over to the testator; that he fully understood its contents; * * * would seem to leave no doubt that the paper propounded was the will of the testator."

Another case is Alston v. Jones (17 Barb., 276), a case of insanity. Cook v. Lamotte (11 E.L. Eq., 26) where a bond for £ 15,000 had been obtained from the deceased without consideration and without her understanding its nature and legal effect; the court held it void for these reasons.

Huguenin v. Baseley (14 Vesey, Jr., 273) is another case where a voluntary settlement by a widow upon a clergyman was set aside, as obtained by undue influence and abused confidence in defendant, as an agent managing her affairs, upon the principle of public policy and utility pertaining to the relation of guardian and ward — a clear case and a proper application of the principle stated. Such a principle is never applied to a will made in favor of a child, although to the exclusion or partial exclusion of another child. No undue influence in such case is ever presumed. In Barry v. Butler (1 Curteis Ecc., 637), where a will was refused probate because the solicitor who drew it had inserted a large legacy to himself, and it was not shown that the deceased understood it, Mr. Baron PARKE, in disposing of the case, said, it is said that where the party benefited prepares the will, the presumption and onus of proof is against the instrument, and the proof must go not merely to the act of signing, but to the knowledge of the contents of the instrument, and that where the capacity is doubtful, there must be proof of instructions or reading over. Why refer to such cases? They are utterly foreign to the facts of the case at bar. Was this testatrix ignorant, old, almost idiotic, or of doubtful capacity? Was the will drawn or procured by the party chiefly benefited, and executed without being understood? On the contrary, the proof shows that she was an educated and refined woman, intelligent and of considerable decision of character. In every incident revealed by the evidence between mother and daughter, the mother's will prevails. She died at the comparatively early age of sixty-three to sixty-five years.

Her capacity at the time of the execution of this will was clear and sound, as proved by every witness speaking on the subject: "as clear as ever." There was no doubt in regard to it. She herself named the witnesses: on her lawyer declining to be a witness, for reasons stated, she named another, Mr. Dayton.

Nor can it be said in any honest sense that the sister gave instructions for drawing the will, or procured it to be drawn.

True, on the day prior to its execution, she sent a memorandum to the lawyer, suggesting most of the provisions embodied in it, and adding that her mother requested him to draw her will in accordance therewith.

The mother had authorized this, as appears by her conversation with the lawyer on the next day.

But he declined to draw the will without getting the instructions from the mother herself.

Hence, on the next day he has an interview with the mother for "from three quarters of an hour to an hour," as to the provisions of her will. He carefully inquired of her as to her property, and the disposition she wished to make of it. He had a memorandum of his own, from which to make inquiries. The daughter, though present at this time, said not a word on the subject. From the instructions thus obtained from the mother, this will was drawn.

Upon these simple, undisputed facts, is there any ground for a pretense that the mother did not herself furnish the instructions for the drawing of her will?

An unprejudiced mind cannot require this point to be elaborated. Again, not only was the will prepared from instructions received from the mother, but it was carefully read over to her "paragraph by paragraph," and she specially assented to each one as correct before its execution.

This, too, is a simple, unquestioned fact, testified to by her medical attendant, a gentleman of conceded character, and by Mr. Clark, a lawyer of very high standing and intelligence, and denied by no one.

Besides, the deceased had expressed her purpose some three months prior to her death, to change her will, and to provide liberally for her daughter. She inquired for a lawyer for that purpose in New York. She said to Miss Cooper, while in New York, when her daughter was not present, that "she had to provide for Julia;" that "Julia was poor, had a large family, and was unprotected;" that "Julia could not afford to be poor; she must have enough;" that "David was a man, had one of the handsomest farms on the island, and that his wife's father was rich." She added: "Don't think that I don't care for David, but I must take care of Julia." Here is the key to the will in a nut-shell. The same, in substance, she said to Mrs. Stryker.

These undisputed facts would seem to more than satisfy all the requirements of the authorities cited.

Undue influence within the meaning of the law (as declared in England and in this country), must be an influence exercised by coercion or by fraud. To set aside the will of a person of sound mind, the circumstances under which it was executed, must be inconsistent with any other hypothesis. This undue influence cannot be presumed, but must be proved to have been exercised, and exercised in relation to the will itself and not merely to other transactions. This is so held in Boss v. Rossborough (6 House of Lords cases, 2.) See, also, Bleecker v. Lynch (1 Brad., 472); Williams v. Goode (1 Hagg. Ecc., 577);Blanchard v. Nessle (3 Denio 43); Clapp v. Fullerton (34 N Y, 197.) Sound public policy requires some such broad rule, in order to protect old age from the desertion and illtreatment of heartless children. Although the aid of such a rule is not required to sustain this will.

It is further urged, as an evidence of undue influence, that the daughter wrote the letters sent by the mother to her son, except the first one. In the first she requested her son to let her occupy her own house, for reasons given. It is conceded that the mother wrote that letter, and we have sufficiently discussed its contents. There is no evidence in the case that the daughter wrote the others. But suppose she did, what follows? There is not a line or a sentiment in either of them unbecoming a mother or a sister to write. His letters to his mother are filled with charges and invective against his sister. He calls her the "spirit of discord, swollen with rage and bitterness, evincing, in every act and expression, a total disregard of propriety, honor and refinement." He also intimates that his sister had "purloined" his private papers from his desk. Afterward he admits the charge to be groundless. He strives to prejudice his mother against his sister by intimating, indirectly, that she is in sympathy with the South. He took the same course before the surrogate in his offer of proof to that effect. He failed to arouse the prejudice of the first tribunal, his mother. If she did write the letters, and wrote what she chose, is it not wonderful that, in the face of such provocation, she indulged in no abuse of her brother in any of them? If she were that "spirit of discord," it is entirely clear that the letters, if put in form by the daughter, thus making it less difficult to the mother, in her delicate health, to copy than to draft, they were so written under the direction and control of the mother. She expresses her discouragement to hear (through his letter), that her family expenses have so greatly exceeded her means, notwithstanding her "rigid economy;" but avows her resolution to meet the case as it stands — says she will not mortgage, but will sell — makes no intimation, the most distant, that he has mismanaged her property, or improperly applied its proceeds, and, though "very unprepared for so large a deficiency," she speaks with great forbearance, and rather lays the blame upon herself, saying, in one letter, "if my affairs had been better understood by me, I would not now be so greatly behind hand in money matters." Though she does properly say that the accounts of her rents of Mr. Bradley, the acting agent, should have been properly made out and shown to her, the funds placed in the bank to her credit, and the leases taken in her name. These letters of the mother to the son are generally upon business matters, most of which could not have been known to her daughter, except as derived from the mother. They show her tenacity of memory and general capacity; and the calm dignity and kindness of a mother pervade them all, even when, in few words, she rebukes her son for his "unnatural" conduct toward his sister. The letters were proper and necessary, and afford no pretense for a charge of undue influence, if written by the daughter. They contain not a word of praise or dispraise of the daughter. The only allusion to her, looking in that direction, is in answer to his complaints against his sister, and is in these words: "Your sister is here from necessity, and, besides, the society of my daughter is agreeable to me, and I need her sympathy and assistance."

All these letters but one were written more than six months prior to her death. Their tone of kindness is in strong contrast to the vituperation in the son's answers. In several of them she addresses him as "David." In none of his does he address her otherwise than as "Mrs. Juliana Gardiner." He never recognizes her as his mother in any letter. In a letter of the 1st of April, she commences thus: "I wish to say, David, that we are out of coal, turnips, potatoes, butter, etc.; bills are accumulating daily, and I have no money to defray family expenses;" and she again requests that her funds be placed in the bank to her credit. She never requested him to account for any money expended, or for what it had been expended. She only desired to know what accounts the acting agent, Mr. Bradley, had rendered, and what her income was, and to have it placed to her credit. This she asked for some three months before it was complied with. Whether the mother or the sister drew the letter, was she not forbearing ?

It is also urged that this will essentially differs from her will made in 1858, when she gave her son the place she lived upon on Staten Island, of about eleven and a quarter acres, and divided the other property equally; and that that is evidence of undue influence.

Mrs. Hoyt testified that, "as far as her memory served," she assigned the reasons for giving David more, that he had had charge of her property. Very uncertain evidence. It is clear that she gave with some reference to the needs of her children. The will she then made was judicious, under the then existing circumstances of her children. Her daughter then had a husband, and she was living in supposed affluence in her own home.

In 1864, when this will was made, their circumstances had totally changed — not to have changed her will accordingly, would have been rather evidence of some hallucination or evil influence, than of wisdom or propriety. It is also urged that the provisions of this will are unjust, and, of themselves, evidence of undue influence.

It is not necessary to say that a case cannot be presented, where the provisions of a will would of themselves be evidence of undue influence, but it is well settled as a general rule that they are not evidence of such influence. See Clapp v.Fullerton (34 N.Y.), where one sister was virtually disinherited in favor of another sister under the mistaken idea in the testator that one was illegitimate. The daughter preferred had given some sanction to the delusion, though she did not originate it. It was conceded to be a delusion, yet the will was sustained. Had the will itself been evidence of undue influence, it would have been rejected, as there was no evidence to the contrary, except proof that the testator was generally of sound mind and knowingly made that will.

If such a rule prevailed, the right to make a will would be virtually destroyed. The right to judge of the reasonableness of a will being given to every judge and juror, would necessarily abrogate wills, as probably very few men could agree as to the just disposition of another's property, where for any cause it was unequal.

Under such a rule the wills of most of the Dutch farmers in Albany county would be void on their face in the minds of most men, as they usually give the farm to the sons, and some comparatively trifling legacy to the daughters.

Such is not the rule. If sane and not proved to have acted from undue influence, a person may give his own to whom he will, irrespective of the taste or judgment of any human being.

But this will was not unreasonable.

At the time of its execution the daughter of the deceased had been compelled to return to her mother's house, with six children, to support and educate; she was a widow without any available means. Most persons in the class of life of the testatrix, would have been anxious to leave their daughter in independent circumstances; that was the wish of the deceased. She knew that her daughter could do nothing to add to her income; she knew that women in that class of life are forbidden by the laws and usages of society, to engage in any business pursuits — laws more despotic and absolute than any legislative enactments — she knew that the sister could look to her only brother for nothing but continuous ill-feeling and vituperation. He had no just cause of complaint against his mother, yet for more than four of the last months of her life, he never called to see her, though he had reason to think she was in her last illness. The civil war was then at its height, and no one knew when or how it would terminate; under these circumstances she decided to give and did give to her daughter her residence in Castleton absolutely, with the personalty thereon. The rest of her property, real and personal, she gave, one-quarter to her grandson, the son of a deceased daughter, and the other three-quarters to her son and daughter equally; but the daughter was to receive all the rents of the real estate devised to her and her brother during her life, unless the federal government should sooner make good to her the loss her property had sustained in Virginia.

In case her grandson should die without issue, then his property to go equally to the son and daughter of the testatrix.

The devisees were ordered to pay the debts of deceased "in proportion to their interest in such devise and bequest."

A claim against the corporation she gave in substance equally to all. This claim she deemed large and good, as appears by her letter written some seven months prior to the execution of her will, and several times afterwards repeated. These are all the provisions in the will requiring notice.

Thus she gave to her daughter her residence on Staten Island, and for her support and the support and education of her six children, three-quarters of an income, the whole of which, under the management of the son, had been largely insufficient to maintain the deceased and her family during the then preceding two years.

The mortgage debts amount to about thirty-five thousand dollars, besides the other claims, amounting to less than five thousand dollars. She is to pay three-eighths of the debts absolutely, and such proportion of David's three-eighths as her life estate therein, calculated on the principle of life annuities, bears to the absolute estate. This is on the assumption that government makes her no compensation during her life for her losses; though cases of compensation for property thus taken by our armies in Virginia have already occurred.

The provision thus made for the daughter scarcely secured to her the continuance of her usual mode of life and the support and education of her children.

The share given to the grandson, a youth of twelve years, made him quite independent. The son had one of the best farms on the island — some seventy-three acres. If it increased in value at all in proportion to the eleven and a quarter acres owned by his mother, he, as a man, was independent. He, as he says, is competent to do business and make money; and he has a rich father-in-law to aid him. His children may look to the provisions of this will for their aid in the future.

The mother had no ill-feeling toward David. Mrs. Stryker says, during the three months she was there, she always spoke kindly of him, but she wished for the reasons expressed "to take care of Julia."

Under the circumstances, this, in my judgment, is as judicious a will as either member of this court could have made.

Whether it is or not, however, is of not the least moment, as she was not bound to conform to the caprice, the prejudice, or the judgment of the judges of this court. The statutes of the land allowed her to consult her own, exclusively. In the language of Judge PORTER in Clapp v. Fullerton (34 N.Y. 97), "The right of a testator to dispose of his estate depends neither upon the justness of his prejudices nor the soundness of his reasoning. He may do what he will with his own. If there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust."

To resume:

This will was executed according to law, when the mind of the testatrix was sound and clear. It was carefully read over to, and fully understood by, her — she expressed her gratification that it was made.

It was also prepared by her own personal directions and instructions.

It was in substance in accordance with her wishes expressed in New York, when her daughter was not present, several months prior to its execution.

There is nothing, rising to the dignity of evidence, to show any undue influence over the testatrix.

The judgment of the Supreme Court should, therefore, be affirmed.

HUNT and SMITH, JJ., were also for affirmance.

Judgment reversed, and decree of surrogate affirmed.