In re Proving the Last Will & Testament of Jones

John M. Kellogg, P. J.:

The testator was about ninety-two years of age when he made the will. He may have had intelligence enough to make a will if he had been left entirely alone. The doctors believe he was incompetent and much evidence was produced tending to show his incompetency. The evidence presented a question of fact upon that subject, and perhaps a finding either way would not be unreasonable. The fact, however, remains — he was a weak, feeble old man, with but very little understanding and comprehension. He was quite deaf, and could only read with a high power magnifying glass. Any one who had his confidence could easily deceive him, and it is evident that he was not able to make a will without the assistance of some friend who could advise with and keep him straight. He had the will habit; what property he had he had acquired from his wife, and it was expected, and he had agreed, that it should go to her relatives. The will in question is in the handwriting of Johnson Beers, the chief beneficiary and executor, and if the testator knew its contents, he and Beers were the only persons who did. The witnesses were not informed upon the subject. Beers brought the testator into the bank, produced the will, and the formalities were complied with by the testator saying Yes,” or nodding his head to the questions asked, and the witnesses signed. He made no affirmative statement himself. The witnesses had no particular knowledge of him or his affairs. The will is dated April 17, 1919. He had executed a will, also in the handwriting of Beers, about two months before, or February 10, 1919. In the February will we find this clause: “ I give and bequeath to my executor and friend, Johnson Beers or assigns, One thousand dollars, who will take care and look after my business and interest during my lifetime:” Apparently this will was the first one in which the name of Beers appears. A friend had drawn wills for him. May 10, 1913, May 1, 1915, and November 6, 1916, and at each time the testator had been particular to tell him to remember the provisions in his wife’s will and to provide “ that the property go back to the Corbusiers,” her family. He showed the February will to this friend, in the presence of Beers, and asked him to read it; upon reading it the friend said, “ if that is as you want it, it is all right,” to which he replied, “ Well, Johnson [meaning Beers] has agreed to look after everything for one thousand dollars,” and the witness replied, “ if the will is as you want it, it seems to be executed properly.” In the alleged last will of April, by the 3d item, he gives to Beers $2,000 in cash “ in remembrance of his services in looking after my business interest,” and the 5th item reads as follows:

“ Fifth. All the rest, residue and remainder of my property I give, devise and bequeath to my executor with the request that he sell and dispose of such property in such manner as in his judgment would be satisfactory to me.”

Beers was principally interested in the change in the will. The gift of the $1,000 to Beers in the February will imposed upon him the duty of taking care of and looking after the business and interests of the testator during his lifetime. In the present will the duty of future services was done away with and the gift of $2,000 appears as a remembrance for past services. By the agreement with Beers he was to look after everything, even with reference to the estate. No real substantial services of any particular value are shown. This change in the cash legacy, and the peculiar form of the 5th item, throw upon the will a serious doubt. The 5th item does not name Beers; it gives the remainder of the property to the executor to “ sell and dispose of * * * in such manner as in his judgment would be satisfactory to ” the testator. If the testator knew of this clause, evidently there had been some secret understanding between him and Beers as to what was to be done with the money. Beers was to be a mere trustee in disbursing it. Had the testator intended that Beers should have it the 3d item would not appear. Every clause in the will must be read in connection with every other clause, and there may be ground for saying that this 5th item has no effect, as it contemplates a trust without indicating a beneficiary. (See Matter of Westurn, 60 Hun, 298; 146 N. Y. 385.)

“ The existence of a valid trust capable of enforcement is consequently essential to enable one claiming to hold as trustee, to withhold the property from the legal representatives of the alleged donor.” (Holland v. Alcock, 108 N. Y. 312, 324; Reynolds v. Reynolds, 224 id. 429, 432.) The total failure to designate the beneficiary of the trust makes the will to that extent an unwritten will, ineffectual for any purpose. (Reynolds v. Reynolds, supra, 432.) Wills must be executed in compliance with statutory formalities, and are not to be enlarged or diminished by reference to extrinsic testimony which may not be authentic. (Matter of Fowles, 222 N. Y. 222, 229.)

But here there was an absolute gift, followed by a request, and in construing the will of a competent testator, fairly made, I think it would be held that the estate vests in the residuary legatees. (Clay v. Wood, 91 Hun, 398; affd., 153 N. Y. 134; 40 Cyc. 1578 v. b.; also at 1734; 28 R. C. L. 243, § 209; Tillman v. Ogren, 182 App. Div. 672; 227 N. Y. 495.) We quote from Clay v. Wood (153 N. Y. 140): “ Where there is an absolute gift of real or personal property, in order to qualify it, or cut it down, the latter part of the will should show an equally clear intention to do so, by the use of words definite in their meaning, and by expressions which must be regarded as imperative.” (Matter of Gardner, 140 N. Y. 122; Roseboom v. Roseboom, 81 id. 356; Post v. Moore, 181 id. 15.)

In the Westurn Case (supra) the property was willed to Lewis Burgess, the scrivener, but the following clause was deemed significant and was the prime reason for the holding that there were suspicious circumstances which called for an explanation: “ And I hope and believe that the said Lewis Burgess will use and dispose of my said property according to my wishes to him made and to the best of his judgment.” The court says: “ It is urged by the appellant that this provision of the will, quoted above, is evidence, upon the face of the instrument itself, of the fraudulent design of the proponent in drawing the instrument to practice upon the credulity of the testator by inducing the belief in his mind, that some private instructions, not written in the will, could be carried out by proponent as executor, which he knew, at the time of drawing the same, could not be engrafted upon the same, or in any way affect the positive devise and bequest of the entire estate to him; and while there is no evidence aliunde the instrument in support of that subject, it is, perhaps, worthy of consideration in the case, in determining whether, under all the facts and circumstances, the proponent can stand upon the prima facie case made by him of testamentary capacity and due execution, or whether the contestants have not cast enough of suspicion upon the prima facie case to so shift the onus upon the proponent as to require explanation from .him. * * * We think, therefore, in this case, the burden was cast upon the proponent of showing that the testator understood the provisions of this will, and that it was not the subject of artifice, fraud or undue influence, by proof in addition to the ordinary evidence required by statute to establish a will and admit it to probate. We do not see how this will can be declared a trust, as there is no cestui que trust named in it; and in such case if it created a trust the trustee would hold it without accountability to anyone, unless it should be held that a resulting trust was created in favor of the testator’s heirs-at-law or next of kin, in which case there is no apparent reason for declaring a trust, as the estate would descend to them by the laws of distribution or descent, either directly or through the medium of a personal representative.”

It is evident that if the 5th clause in this will had been read to the testator he did not understand that he by it was giving anything more to Beers. If he understood by it that Beers was acting as trustee to distribute the money to others, he was deceived by Beers and the will is the result of affirmative' fraud. We quote from Barnard v. Gantz (140 N. Y. 249, 256): ‘“It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to relieve himself from an obligation on that ground. Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side, from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other, from weakness, dependence or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair.’ ”

It is true that this rule is not as rigid in cases of wills as in cases of instruments which take effect inter vivos, but only slight circumstances are required to put the strict rule in force where a man writes himself a legatee in behalf of a man ninety-two years old who is weak, feeble and dependent and the contents of the will is known only to that legatee and possibly to the testator. (Matter of Smith, 95 N. Y. 516; Matter of Kindberg, 207 id. 220; Matter of Perkett, 192 App. Div. 846, 848.) Those circumstances are well found within the four corners of this will, when read in connection with the February will, and when it is remembered that of the several wills made by the testator Beers drew two of them, in each of which he shares liberally, and in the last will takes substantially- the entire estate. The evidence does not show any intimate relations between Beers and the testator until just before and following the February will and the services are principally imaginary, as the testator’s property was invested in government bonds and securities which needed no particular care. The language of the will in respect to the relations between Beers and the testator is evidently the language of Beers and not of the testator. If Beers gets the principal part of the estate, it comes to him by trick and from the evident misunderstanding by the testator of the 5th clause of the will. If there was a misunderstanding, it results from the ignorance or duplicity of the beneficiary; the result in either event is to give him property which was intended to go elsewhere. The circumstances require evidence to show that the will was the free, untrammeled and intelligent expression of the wishes and intentions of the testator and no such evidence appears. Appellant may contest the will. (Decedent Estate Law, §§ 91, 98, subd. 15a, added by Laws of 1913, chap. 489.) I, therefore, favor a reversal.

Woodward and H. T. Kellogg, JJ., concur; Van Kirk, J., dissents with an opinion in which Cochrane, J., concurs.