In re Proving the Last Will & Testament of Hargrove ( 1941 )

Townley, J.

The decree appealed from denies probate to the will of Ernest Temple Hargrove. This decree was based upon the verdict of the jury which by a vote of ten to two found the deceased lacking in testamentary capacity. The jury’s finding was based upon its conclusion that the testator suffered from an insane delusion that two children born to Ms wife during their marriage were not Ms and that as a consequence the testator did not know the true objects of Ms bounty. The will made no provision for these cMldren but left all of Ms property to Mrs. Clement Griscom “ as an inadequate acknowledgment of the lifelong kindness shown to me by my business associate and intimate personal friend, her late husband.”

With the exception of tMs claimed delusion about the patermty of Ms cMldren there is no serious claim of mental deficiency. The testator appears to have been a very successful business man, capable of managing large interests with conspicuous success and equally successful in the management of many charitable and religious activities in wMch he became interested. He was active as president and head of the Griseom-Bussell Company, manufacturers of heavy macMnery, up to witMn a month of Ms death, on April 8, 1939. The instrument offered for probate was in his own handwriting and executed by Mm on December 17, 1923. Ten witnesses, all men of importance in New York city, testified that decedent was at all times of sound mind and a man of unusual intelligence and four of these witnesses were called by the contestants.

The only witnesses to the contrary were an aliemst who had never seen Mm and the testator’s divorced wife who had not seen Mm for tMrty-one years prior to Ms death except for an accidental meeting in a book store twenty years prior to his death. As bearing on the credibility of the latter it is sigmficant that she demed here that the testator prior to Ms death had ever accused her of being indiscreet, whereas she had obtained a Colorado divorce from the testator in which she alleged that about three years prior to the date of her complaint, the decedent had accused her of being indiscreet in her association with certain persons and -that in November, 1905, he had also made similar charges. In that action the jury found the decedent guilty of the matters charged in the complaint.

The law is that assuming that decedent was mistaken in his belief that he was not the father of the children of his divorced wife, that fact would not necessarily establish testator’s incapacity. The rule applicable to the determination of the question was clearly stated in Matter of White (121 N. Y. 406, 413) as follows: “ Delusion is insanity, where one persistently believes supposed facts, which have no real existence, except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence. That was so held in Seamen’s Society v. Hopper [33 N. Y. 624]. But, if there are facts, however insufficient they may in reality be, from which a prejudiced, or a narrow or a bigoted mind might derive a particular idea, or belief, it cannot be said that the mind is diseased in that respect. The belief may be illogical, or preposterous, but it is not, therefore, evidence of insanity in the person. Persons do not always reason logically, or correctly, from facts, and that may be because of their prejudices, or of the perversity, or peculiar construction of their minds. Wills, however, do not depend for their validity upon the testator’s ability to reason logically, or upon his freedom from prejudice.”

The question presented, therefore, is whether there is any rational basis, however slight, for the decedent’s belief that he was not the father. The story of the married life of the Hargroves may be summarized as follows: The deceased married Aimee Neresheimer in 1899. For the next six years he traveled in Europe, Africa and Australia with her. A son was born in Brussels in February, 1902, and a daughter in Dresden in 1904. In 1905 the decedent and his children returned to the United States and took up a residence in Denver, Col. In Denver, the testator became interested in the business of bis then father-in-law and in that connection met and became friendly with one Smith, a friend of his father-in-law and his attorney. In the latter part of 1906 the testator’s wife asked him for a divorce, claiming incompatibility. This led to many conferences in which testator’s father-in-law and Smith assumed to act as friendly advisers. An action for divorce on the ground of cruelty was brought. The entire proceeding from the service of process to the entry of judgment was accomplished in a single day. Within an hour after the entry of the decree Smith, whom decedent had consulted about his divorce, procured a divorce from bis own wife and announced that he would marry the wife of the testator.

The conditions surrounding these decrees created a considerable scandal in Denver. Within a month Smith and the testator’s wife were married at the alleged insistence of her father. The testator apparently did not discover the remarriage for some months. He then applied to have the divorce set aside on the ground of fraud and alleged that his wife prior thereto had been guilty of improper relations with Smith. This application was denied upon technical grounds. He thereafter left Denver and came to New York where he was befriended by Clement Griscom, became associated with him in business and died the president of his company. Mr. Griscom’s wife is named as beneficiary in this will. Neither the divorced wife nor the children communicated with the deceased during the thirty-one years intervening before his death.

Decedent left an affidavit with his executor stating that his divorced wife had confessed to him that the children were not his and that he had satisfied himself that that was so. He spoke of this belief only to his intimate friends and then only when necessary. His entire conduct in this connection was that of a dignified considerate gentleman and there is nothing in connection therewith which justifies the belief that his opinion was based on an insane delusion. All of his reasons for his belief, of course, cannot be known. They relate to the intimate personal affairs incident to the marriage relation. When consideration is given, however, to his unfortunate experiences in connection with his divorce, the fact of his belief in his wife’s infidelity certified to by her under oath inher divorce proceeding and confirmed by the formal affidavit left by him with his executor, it cannot be said that his belief on this subject was entirely without reason, although possibly mistaken.

Upon the foregoing facts the finding that the decedent lacked testamentary capacity cannot be sustained. The conclusion we have reached, however, must not be considered as involving any finding as to the legitimacy of the children involved.

That part of the decree that held that the instrument offered for probate was not revoked by the subsequent codicil was clearly correct. This codicil concededly contained no terms of revocation of the will. The precise terms were not established. There was no inherent inconsistency with the original testamentary plan of the decedent. The revocation of the codicil, therefore, did not necessarily result in the destruction of the will, even assuming the codicil was sufficiently proved. As was said in Osburn v. Rochester Trust & S. D. Co. (209 N. Y. 54, 56): “While it might often happen that the codicil would be so related to and dependent on the will that it would be impossible to destroy the latter without carrying down the former, the reverse would ordinarily not be true. There would seem to be no good reason why a testator should not be allowed to revoke a codicil, which might be as in this case an entirely separate and distinct instrument, without destroying his will, in itself a full and complete instrument.”

The decree so far as appealed from by the contestants should be affirmed. In so far as appealed from by the proponent, it should be reversed, with costs to said appellant payable out of the estate, and the will admitted to probate.

Martin, P. J., and Callahan, J., concur; Glennon and Dore, JJ., dissent.