This appeal is from a judgment entered upon the verdict of a jury by direction of the court, adjudging certain papers to be the last will and testament and a codicil thereto of Frances Louise Byrne, and from an order denying a motion to set aside the verdict and for a new trial on the judge’s minutes. '
The action was brought under section 2653a of the Code of Civil Procedure. The testatrix, whose maiden name was Frances Louise Brugman, was the wife of the plaintiff. ■ She was the mother of an infant son, her only child, who was born January 7, 1892. The testatrix died August 5, 1895. The will was made July 5 and the codicil July 10, 1895. They were both admitted to probate. Ho question is now raised as to the plaintiff’s right to maintain the action.
The grounds upon which the will and codicil were assailed are, that at the time they were respectively executed the testatrix was and for a long time prior thereto had been weak and feeble in mind and body, suffering from uremia and a complication of physical disorders or diseases and was not of sound memory and understanding —that she was hovering between life and death, was without testamentary capacity, and hence that the writings admitted to probate
After making special bequests, not -necessary to consider, the testatrix in her will empowers, her executors and trustees to pay for the education of her son, Arthur Byrne, from the income of her estate, $100 each year until he arrives" at the age of twenty-one years; but that is coupled with a further provision that they shall pay such other and further sum or sums of money as -they may deem best from time to time to expend for his education durin'g his minority, and when he arrives at the age of twenty-one years he ,is to receive all the real and personal estate then in the charge of the executors and trustees, provided he chooses at that time to live with the testatrix’s family or some member of it, and refuses to live with his father or any member of his father’s family; and the testatrix proceeds to say that if he chooses, when he arrives at the age of twenty-one years, to live with his father or any member of his father’s family, “ then and in that case 1 give and bequeath all my property to my brothers and sisters to be divided equally among them. And in case my son Arthur dies before the age of twenty-one years, I give, devise and bequeath all my estate of any kind, name and nature to my surviving brothers and sisters to be divided equally between them.”
Thus far, upon a survey of this will, it is to be seen that it was within the .intention of the testatrix to give to her infant, child,-when he became able to make a selection, the right and power to- determine with whom he should live as a condition of his enjoyment of his mother’s property. - By the codicil made five days after the execution of the will the testatrix declares that she had attempted to dispose of the residue of her estate, both real and personal, for the benefit of her infant son, Arthur Byrne, and had been advised .that the attempted disposition was uncertain, ambiguous and likely to cause a question of -construction, and thereby she was induced to change, amend and alter the 3d clause of the will respecting, the said residuary estate so that the remainder thereof should be giver) to her executors and trustees in trust to receive the rents, issues and ■profits until her son Arthur attained the age of twenty-one years or until his earlier death, and out of the rents, issues and profits to. apply the sum-of $100 or more, in their discretion, .in -each year for his
The last clause of this codicil indicates sufficiently the difference between the original will and the codicil respecting the exclusion of the testatrix’s son from the interest in remainder in her estate^ By the will his infantile inability to determine with whom, he should reside is recognized. By the clause of the codicil last quoted he is stripped of his inheritance if-at anytime in his tender;-and irresponsible.years, and before he can make a choice o'r have any freedom cf action, he should reside, even-on compulsion, with his father or his father’s relatives. It' is very easy to see that this codicil, so- unnatural, was inspired by hatred of the father .and his family, and the evidence in the case fortifies that view. There -is.no direct evidence of undue influence exerted by any particular person upom the' testatrix in procuring the execution of this will-or its codicil ; that is to say,'there is no positive evidence that any person connected with the testatrix ■ made direct efforts to induce her to execute a will which should by any of its provisions be for the benefit of such person — but this is an inofficious codicil; it is contrary to natural duty
The difference between the will and the codicil has been pointed out. Thé former may be sustained and the latter not. , Wlien the latter was made, if the testatrix was suffering from certain diseases, the evidence shows they would affect her mentally. Her physician, Dr. Holmes, who attended upon her from the 1.4th of December, 1894, ■ until the ..time of her death, states her general physical condition. He saw her almost every day and "sometimes more than "■ once a day, and, according to his testimony, she was suffering from a complication of diseases "which naturally (as said before) affected her mind. Three physicians, basing their expert testimony on the . facts testified tó hy Dr. Holmes, swore that a person suffering from those conditions, had not sufficient mental capacity to make a will. The learned trial judge directed a verdict, disregarding the testimony of the expert witnesses, evidently so doing upon the .view-which this court .took in a case which has since been reversed by the Court of Appeals! Differing from us, the Court of Appeals in Hagan v. Sone (174 N. Y. 319) expressly held that expert evidence' of the character introduced in this case was admissible and should: have been left to-the. jury for their consideration, saying that the value and bearing of -the. evidence, as well as its construction, is for the body to which is committed the decision of all questions of fact.
Wé are of the opinion that all ¡the evidence of the expert witnesses should have gone to the jury in this case, there being abundant proof" as to the existence of conditions which might have affected the testamentary capacity of the testatrix.
McLaughlin, Clarke and Houghton, JJ., concurred; O’Brien, P. J., dissented.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.