In re Merriam's Will , 42 N.Y. St. Rep. 619 ( 1891 )

Barnard, P. J.

The deceased was a resident of Brooklyn, Suffolk county, and died there in January, 1889, at a little over 50 years of age. He left a will, which was admitted to probate by the surrogate of Suffolk county, executed in May, 1883. The next of kin and heirs at law appeal from a decree of the surrogate, and allege that the will was not executed according to the requirements of the statute, and that the testator was not of sound mind and memory, and therefore incapable of making a will. The will was executed by the testator in the presence of B. IC. Payne. Payne drew the will upon the instruction of the testator. The attestation clause is full and complete, embodying all the statute requirements. Mr. Payne testifies that the will was either read over by the testator or by the witness, and that testator declared it to be his last will, and requested Mr. Payne and Mr. Linnen to be witnesses; that the testator signed the instrument in their presence, and that the witnesses signed as such in bis presence, and in the presence of each other. Linnen testifies that he did not see the testator sign the paper; that he did not sign as an attesting witness at testator’s request, but at the request of Payne, and in another room from that in which testator was at the time. The surrogate’s finding that the will was properly executed is supported by the evidence. Payne was a lawyer, used and accustomed to the requirements of the execution of wills. The attestation clause states the facts contrary to Linnen’s recollection. Linnen was a law student; had no charge of the execution of the will; and lias signed a certificate which is at war with his testimony. Linnen knew of the requirements of the law as to the execution of wills, and signed the attestation clause, as he says, without reading it; that the execution was of no concern to him, whether it was done right or wrong; and that some six years thereafter, and after testator’s death, he seems first to recall the fact that the will was not properly executed. The surrogate’s finding is upheld on this point of the formal execution of the will. The evidence as to the mental condition of the testator shows him to have been very eccentric. He was a graduate of Williams College, and had been a teacher in the common schools subsequent to leaving college. He was a man of large property, and managed it unaided, and without suffering waste or depreciation, so long as he lived. In many respects he was childish in his tastes and occupation. He was in the habit of making wills. He would take a childish fancy to some young girl, and make a will in her favor. These legatees were, it seems, easily supplanted by a new fancy, or by some sudden change on the part of testator, and the result would be a new will. The testator was subject to complete changes in his political beliefs. He was capable of writing an address called “happy” or “clever” by those who heard it; he could make political addresses. There was a lack of discipline in his school. His memory was at times somewhat defective, but not unusually so. The evidence fails to show that there ever was a time when he did not understand his affairs, and when he did not know the effects of his acts. He gave his reason always why he did not want his next of kin to take. He had neither father, mother, wife, nor child. He was dissatisfied with his sister and step-mother in respect to the distribution of his father’s will. He invented the plan of giving his property to the general government, and directed his lawyer to make his intent effective by will. His sister had plenty of money, and the testator knew that they did not need his property. The greatest peculiarity in the deceased, after all, was that he felt called on to teach, which is quite unusual to a man who had so large a property. His girl legatees were generally, if not always, school-girls of tender years, and his selection was made without any other motive than'a wish to attach them to him practically as a child of his own. The evidence, therefore, fails to show the testator incapable of making a will. The will was freely made, without suggestion and without restraint. It was made by one who knew the condition of his property, and the scope, meaning, and effect of his will, and the decree should therefore be affirmed, with costs. Horn v. Pullman, 72 N. Y. 270; Delafield v. Parish, 25 N. Y. 9. All concur.