In re Schreiber's Will , 22 N.Y. St. Rep. 892 ( 1889 )

Abbott, S.

Christian Schreiber, or Christian Schrieber, resided in Canarsie, in the county of Kings. For some cause, which does not appear, he had been separated from his wife (who was his second wife) for some time. He left no children or descendants. He died in the city of New York, on the 23d day of Jan uary, A. D. 1889, and left him surviving his widow, Anna Schreiber, and a niece, Barbara Dieter, his only next of kin. On the 26th day of December, A. D. 1888, he made and executed his last will and testament at Canarsie, in and by which he bequeathed to his wife, Anna Schreiber, her dower right in his realty, and the .rest of his estate, both real and personal, to Christian Nicola, whom he appointed as executor. On the day he executed the will he afterwards went to Hew York city, in order that he might obtain better care and treatment, as he was then, and had been for some time, suffering from Bright’s disease of the kidneys. He remained at the residence of Christian Hicola, in said city, until the 23d day of January, A. B. 1889, when he died. He appears to have dwelt alone at Canarsie, and was cared for and nursed for several weeks prior to his decease by the wife of the residuary legatee. He not been visited by his wife or his niece for a long time privious to his departure for Hew York. There is no proof offered showing that Schreiber was under any undue influence or unlawful restraint at the time of making the will, and the only ground upon which the contestants seem to rely was the lack of testamentary capacity. The subscribing witnesses testified fully to the performance of all the statutory requirements. The testator seemed to be fully aware of the contents of the will and of its effect.

Philip Mugler, one of the subscribing witnesses, testified: “ Question. After he signed his name to it, did he say anything to you about that paper; did he tell you what it was after that? Answer. He said that is all right; that is. the will he wanted to make.” William H. Rogers, the other subscribing witness, also testifies: “Question. Did you read that instrument to Mr. Schreiberbefore he signed it? Answer. Yes. Q. What did he say after you read it. to him? A. He said that was what he wanted.” It also appears from the-testimony of the last witness that Schreiber came to him a few days before-the will was executed and gave him instructions how to draw the same. The-evidence tends to show that Schreiber was an intemperate man, but it does-not seem to me that his excesses, or the disease from which he was suffering, were sufficient causes from which to ascribe lack of testamentary capacity at the time he executed the will. The signature to the will is in a firm, neat hand, and shows no evidence of any unsteadiness on the part of the testator at the time of forming the same. To incapacitate one from making a will', the intemperance must be such as to establish a total and permanent want of' capacity. “Intemperate habits, and occasional fits of wildness, though indicating an impaired mind, do not establish a total and permanent want of' capacity. ” Julke v. Adam, 1 Redf. Sur. 454. “The fact that a man is an habitual drunkard, and when drunk is non compos, does not invalidate a. will. ” Gardner v. Gardner, 22 Wend. 526. I am satisfied from all the circumstances that this is such a will as the testator would naturally have made, and that when he made it there was no lack of testamentary capacity. Tha paper here propounded must be admitted to probate.