This is a contest over an instrument which purports to be the will of Fanny Bosch, and is offered for probate by her aunt, Mrs. Angelica Straub, whom it nominates as executrix. The probate is contested by decedent’s sister, Pauline Seiter, who, as one of her next of kin, will be entitled to- one half of her estate, if this instrument is denied probate. The pleadings and evidence present for consideration three questions.
FIRST.
Has the due execution of the paper in controversy been satisfactorily proved?
The fact is undisputed, that it carries upon its face an apparent compliance with the statutory requirements, which establish the form of a testamentary paper and the mode of its execution. The signature of the decedent is in its appropriate place, and, at the end of a full attestation clause, appear the names of Mary A. Hemingway and Kate Leonard, the two attesting witnesses.
The latter, who was a servant of the proponent, died before the present controversy began. The other has given testimony which, though not without serious discrepancies and contradictions, tends to establish that the dece
SECOND.
The second objection presents an interesting question, upon whose solution little light has been shed by reported judicial decisions. That question grows out of the following state of facts: At the time the decedent executed the instrument under consideration, she was a minor, little above the age of sixteen years. Neither her father nor her mother were then living. The city of New York, which was the domicil of both her parents, admittedly continued, after their death, to be her own domicil and place of residence, until at least as late a date as December, 1878, when her uncle, Adam Straub, the husband of proponent, was appointed her guardian by a decree of my predecessor.
In the summer of 1877, while the decedent was living in this city, at the house of one Mrs. Kramer, she became so seriously, and, as it then seemed, so dangerously ill, that Mrs. Kramer telegraphed the proponent, who lived in Jersey City, New Jersey, to cometo New York, for the purpose of taking her niece in charge. Mrs. Straub at once complied with this request, and, on the succeeding day, accompanied by her husband, visited Mrs. Kramer’s residence, and removed the decedent to St. Erancis’ Hos
Upon these facts, the issue is raised whether the domicil of the decedent at all times continued to be in the city of New York, or whether, on the other hand, she had acquired, before executing the instrument which occasions this contest, the domicil of her guardian in the state of New Jersey. In the one case, being more than sixteen years old at the date of execution, her competency under the statutes of this State to make a will would not be open to question, on the score of age. But if, on the other hand, she was then domiciled in New Jersey, she could not, under the laws of that state, make any effectual testamentary disposition of her estate. It is strenuously urged by the contestant’s counsel that this incompetency existed, and that the decedent, both at the time she executed the paper and at the time of her death, was a resident of Jersey City. It is true that she so describes herself in the disputed paper which commences: "I, Fannie Bosch of Jersey City, Hudson County, New Jersey.” It is also true that she is alleged to be a resident of that city, in the proponent’s original petition for probate, which, in this respect, was subsequently amended. The contestant claims that the decedent, when her uncle was appointed her guardian, herself became, because of his residence in New Jersey, a resident of that state.
The contestant’s counsel, in support of their position that a guardian has power to change the domicil of his ward, also cited Holyoke v. Haskins (5 Pick., 20), and Wood v. Wood (5 Paige, 696). In the former case, the question directly involved concerned the domicil, not of a minor but of a lunatic. In Wood v. Wood, by the will of a testator whose home had long been in Albany, N. Y., his brother was appointed both his executor and the guardian of his infant children, and was made trustee of the entire estate for the benefit of those children and of their mother, the widow of the testator. The trusts were peculiar, and were all framed with reference to a change of residence by the whole family from the State of New York to the state of Ohio. The widow was averse to this removal, and her objections were sustained by the Chancellor, in a proceeding brought, on behalf of
Upon careful consideration of this question, it seems to' me very doubtful whether any guardian, other than a guardian by nature, has power to change the domicil of an infant ward.
“It is possible,” says Dicey, in his valuable treatise on the “Law of. Domicil,” page 100, “that the domicil of an orphan follows that of his guardian, but whether this be so or not is an open question. In the first place, it may be doubted whether the rule is not, rather, that a ward’s domicil can be changed, in some cases, by his guardian, than that it follows the domicil of his guardian. It is difficult to believe that the mere fact of D.’s guardian acquiring for himself a domicil in France can deprive D., the son of a domiciled Englishman, of his English domicil. In the second place, the power of a guardian to
VVbstlake, in his “International Law” (2d ed., p. 272), states the rule on this subject as follows: “The law or jurisdiction of the father’s last domicil provides for the guardianship, after his death, of his legitimate or legitimated unmarried minor children. The guardian, whether appointed by the father under that law, or by that law of jurisdiction itself, cannot change his ward’s domicil except so far as he may be permitted to do so by the terms of his appointment, or by the law or the public authority under which he holds his office.”
Assuming, however, that Mr. Straub, in the case at bar, had power to change the domicil of this decedent if he had chosen to do so, I am, nevertheless, clearly of opinion that no such change was actually effected. It does not appear that, at the time she was removed to the . hospital in Jersey City, there was any definite plan or purpose, in her own mind, or in that of her uncle or aunt, as to her future residence.
Indeed, the doctrine is too well settled to require the
I, therefore, hold that, when the decedent executed this disputed instrument and when she died, her domicil and residence were in the city of New York, and that, being above the age of sixteen years, she was competent to make a will for the disposal of her personal estate.
THIRD.
There remains for consideration the most important issue in the case. The contestant claims that the paper propounded does not express the free and untrammeled wishes of Fanny Bosch, but that, in the preparation and execution of that paper she was a mere passive instrument in the hands of others. There have been many "attempts to describe with exactness that kind of influence, whose exercise is deemed in law an adequate cause for denying probate to a will. In the nature of things, such attempts have always been failures. Each case must be determined according to its own peculiar facts and circumstances, having in view the simple principle, that no instrument can be established as a will unless it speaks
As has been stated already, this decedent, when she executed the paper propounded as her will, was a girl barely sixteen years of age. It appears, by the testimony of several witnesses, that she was weak in body, of gentle and compliant disposition, and with little strength of character. Mr. Hendrickson, who was her guardian ad litem in certain proceedings, describes her as a person “with no force -about her.” Her power of will was doubtless weakened by her long and serious illness. One of the attesting witnesses, Mrs. Hemingway, who is manifestly friendly to the interests of the proponent, constantly refers to decedent as “the little girl”—a phrase which has, as it seems to me, a marked significance. It is evident that, by reason of her youth, her illness and her docility, her will could easilyhave been dominated by any person who had the motive and opportunity to control it. ‘ .
By the law of England (1 Vict. Stat., chap. 26), no persons under twenty-one years of age, except soldiers and sailors in actual service, are competent to make a testamentary disposition of their estates. Provisions sim
These facts emphatically attest the existence of a widespread "belief that the extension, to persons of immature years, of the right to dispose of property by will is a policy which is unwise and is likely to be mischievous in its consequences. The statutes of our own State permit a female infant of sixteen years or upwards to make a will of personal property, but, despite this fact, the rule of exclusion which almost universally prevails elsewhere is here a legitimate and a very important subject of consideration. It gives emphasis to the proposition, which must be conceded to be sound, that the degree of control which is sufficient to invalidate a will depends largely upon the age of the will maker, and that influeüces, which might legitimately be exercised upon a person of mature years, justly fall under the condemnation of the law when they are brought to bear upon a girl of sixteen.
Upon examining the only dispositive provision of this instrument, it is found to be as follows : “I give and bequeath to my beloved aunt, Angelica Straub . . . all the money or moneys due' me or to become payable to ■ me at or after the time of my decease, and all and everything else I may possess or have any interest in at such time, to have and to hold to her and to her legal representatives forever.” Then follows, “I hereby appoint my said aunt, Angelica Straub, my sole and exclusive executrix of this my last will and testament.” This in
It appears that the decedent was brought to her aunt’s house for the purpose of executing this paper, and that she was immediately afterwards taken back to the hospital. This alone is a suspicious circumstance, and the inferences which it suggests are greatly strengthened by other parts of the evidence. Mrs. Straub, her son and her two daughters were all present at the time of the execution of the paper. The son is now over twenty-one years old, and the younger of the daughters is above the age of seventeen. Though they all seem to have been accessible at the time of the trial, none of them was produced as a witness.'
The so called will was drawn by a lawyer who, for some unexplained reason, retired from the premises just before its execution and returned just after. Prominent among the many statements of the proponent which were satisfactorily disproved was her denial, upon cross-examination, that, at the time of the will-making at her residence, she knew that the decedent had a claim to certain insurance moneys. Letters were introduced, whereby her knowledge upon that subject was conclusively established. It appeared, by the testimony of Mr. Schuster, that, on a certain occasion, he asked Mrs. Straub by whom the will of Fanny Bosch had been witnessed. She said that it had been witnessed by her servant girl and by
Counsel for the contestant cite many authorities in support of the doctrine that a will made by a ward in favor of his guardian should be subjected to close scrutiny, and that it is especially open to suspicion when the guardian has taken an active part in its execution. These decisions seem to me to have apt application to the case at bar. Though the paper in dispute gives the property to Straub’s wife and not to Straub, and though his letters of guardianship happened to be canceled about two weeks before the execution of this paper, the force of the doctrine established by the cases cited is thereby weakened slightly, if it all.
No testimony was introduced on the part of the proponent which has served to allay the suspicions aroused by the evidence to which I have called attention. I feel compelled to deny this petition for probate.
A decree may be entered, accordingly.