In re the Proof & Probate of the Last Will & Testament of Burtis

McLennan, P. J.:

The question presented by this appeal is whether or not the determination of the Surrogate’s Court that -the signature to the alleged last will and testament of Albert G. Burtis, deceased, is a forgery and, therefore, that such instrument is null and void, should be regarded as final, or should such issue be submitted to a jury pursuant to the provisions of section 2588 of the Code of Civil Procedure.

It is the settled rule in this .State that in such cases, if upon appeal it appears that the disposition of the questions of fact raised by the evidence is not free from doubt and the surrogate’s decision is not entirely satisfactory, the questions of fact will be sent to a jury for determination. Such was expressly stated to be the rule in Matter of Dixon (42 App. Div. 481), recently, decided by this court. (Matter of Drake, 45 App. Div. 206.)

In Matter of Brunor (21 App. Div. 259) the court said : “ The evidence given upon the part of the proponent tended, to establish that the will, as made and executed, was the voluntary act of the testatrix, and that she was uninfluenced by any other considerations than a desire to leave all of the property then at her disposal to her husband. A jury upon a trial of such issue would be justified in -so finding, upon the testimony now before us. The question, however, in eases of this kind, does not depend, upon the consideration as-to whether the'surrogate might have found from the evidence that the will was the free and voluntary act of the testatrix, or that a jury might so find. But, rather, is it to be solved by a consideration of the whole evidence as a de novo question; and if, upon such-consideration, the mind of the court is in doubt upon the question of whether the will is the free and voluntary act of the testatrix, it becomes a question of fact for the determination of a jury, and it is the duty of the court- to set aside the probate and direct a trial of the issues.”

In Matter of Lansing (17 N. Y. St. Repr. 440) the court (per Learned, P. J.) said: “ It is our duty to examine the ease de novo, and unless we are satisfied that the probate should be granted and have no doubt on that point, we' should reverse the decree and order issues to be tried. (Howland v. Taylor, 53 N. Y. 627.) ”

In Matter of Ellick (19 Wkly.Dig. 231), a case decided by the General Term, third department, the court said: “ Where, upon ' appeal from the decree of a surrogate, refusing to admit a will to probate on the ground of undue influence, the court is in doubt, upon the testimony, as to the correctness of the surrogate’s decision, the proponent is entitled to have the case reconsidered before a jury, and the court may order it to be tried by a. jury at the circuit.” (Matter of Tompkins, 69 App. Div. 474.)

There are many decisions to the same effect. In fact, no case has been called to our attention where the correctness of the rule above stated has been questioned. It, therefore, becomes the duty of this court to determine, not simply whether the determination of the Surrogate’s Court is supported by evidence, but whether or not the correctness of such decision is reasonably free from doubt and is entirely satisfactory. If not, then the questions of fact should be sent to a jury for its determination.

We shall not attempt to call attention in detail to the voluminous evidence contained in the record, covering nearly 1,000 pages, bearing upon the question of the genuineness of the signature to the alleged will, which is the only issue involved, but will content ourselves with a reference to its general features, which we think very clearly show that such issue is not free from doubt, but is involved in great uncertainty.

In reviewing the determination of the learned surrogate in that regard it is important to consider the situation of the deceased and of the parties proponent and contestant, the relations which they respectively sustained to him, and all the surrounding circumstances, as well as the direct and expert testimony bearing directly upon the genuineness of the disputed signature.

At the time the alleged will purports to have been executed, May 26, 1902, the deceased was about fifty-nine years of age. He died on the 8th day of May, 1903. He had accumulated and was managing property of the value of about $250,000, consisting mostly of securities, and so far as appears he managed the same in a reasonably careful and prudent manner; invested and reinvested it as occasion required; squandered none of it, and was regarded by his business associates as entirely competent to manage his comparatively large fortune.

The decedent was a bachelor; had no children, his nearest relatives being a father and brother. The evidence quite conclusively shows, that he did not intend either of them should be the recipient of his bounty. He had a cousin; a' Mrs. Scott, for whom he evidently had feelings of affection, and had frequently expressed the intention of making her his sole legatee. In fact, in the year 1899 the deceased executed a will in due form, bequeathing to her his entire estate. There is evidence tending to show, however, that such will was made upon the understanding that she would execute a reciprocal will, which she failed to do; at all events, after her marriage, it appears that his intentions in respect to her had, changed, and if it was the testator’s wish that his estate should go to Mrs. Scott, the evidence fails to indicate it with any degree of certainty. There is no evidence which even tends to show" that the alleged testator intended or wished his property to go to his blood relatives or next of kin.

The decedent first' became acquainted with the proponent when she was fifteen or sixteen years of age, in 1897 or 1898-, about seven years prior to his death. She was then living with her mother in the city of Auburn. , So far as appears she was an ordinarily bright and attractive girl. At the time when such acquaintance began the deceased had a home or establishment on Owasco lake, where he spent the greater "part of his time, and where he entertained lavishly, not always elegantly or in such manner as becomes a gentleman, yet in such fashion as to lead men of business and social standing in the community'to partake of his hospitality. It is beyond doubt that the deceased was dissipated, was addicted to the excessive use of liquor, absinthe and cordials, and to such extent as at times when oil a protracted spree to practically incapacitate him for intelligently transacting business. Such condition most frequently occurred at his home oil the lakeside, and then it was his habit to seclude himself from his associates and to absolutely refuse to transact any business. There is no evidence which establishes with any degree of certainty that the deceased, whether under the influence of liquor or otherwise, ever made an improvident or foolish bargain or any agreement which was not the result of intelligent deliberation and good business judgment. When intoxicated, the evidence does indicate that he was profuse in making verbal promises of -gifts to those about him, but in no case, under such circumstances, did he divest himself of any part of his property.

The deceased was a man of affairs, managed a large property successfully, appreciated its extent, and apparently understood fully the situation of all his relatives and next of kin and any claims which they or any of them had upon his bounty. The alleged testator was competent to make a will; indeed, the learned surrogate has made no finding to the contrary, and, therefore, he was free to devise his property as love, friendship, duty or passion might dictate. Nor is there any support in the evidence for the proposition, and there is no finding to the effect, that whatever the deceased did in the premises was not his free and voluntary act.

Soon after the deceased became acquainted with the proponent she commenced to make secret visits to his house where there were only male servants and attendants. At first she remained only a short time, but afterwards for days and weeks at a time, all with the knowledge and apparent acquiescence of her mother. The deceased was also a frequent caller or visitor at the home of proponent’s mother. It is undisputed that after the decedent became acquainted with the proponent he manifested a very lively interest in her, whether for an improper purpose and because infatuated, or as the result of true friendship and regard, is in doubt. Her apparent relations with him are certainly open to criticism. However, many of his acts respecting her do not indicate an illicit relation. He sent her to school at Ithaca, N. Y., also to Chicago, and sent her on a trip to Europe, he paying all her expenses, and during all the time she was practically absent from him. If the only relation sustained by the deceased to the proponent was that of mistress, it, to say the least, is quite unusual that he should have arranged and paid for a course of action on her part which would deprive -him of her society. As further indicating the feeling of regard which the decedent entertained for the proponent,. it is shown . that he went abroad in 1900, but that before going he transferred to proponent a considerable amount of his property, consisting of stocks and. securities, which were indorsed in blank and placed in a sealed envelope with proponent’s name and address written thereon in his handwriting, and he placed same in a vault in Fay’s Bank in Auburn where they were found intact after his death. These and many other facts disclosed by the evidence very conclusively show that the alleged testator was very greatly interested in the proponent and that whatever may have been its basis, whether passion and lust or love, friendship and regard, it largely exceeded that entertained by him for any of his relatives or next of kin.

If the evidence in the case clearly established that the signature to the will in question was a forgery, the intention of the deceased in respect to. the proponent as to the disposition of his property would be wholly immaterial. But if upon the direct and expert testimony that issue is involved in doubt, then the intention of the alleged testator in that regard becomes of very great importance. Concededly, if it were undisputed that the testator intended the proponent should have his entire estate, his alleged signature to an instrument giving effect to such intention, although its genuineness, were in dispute, would be subject to much less severe scrutiny than if, .by means of such signature, his property were to be disposed of in.a manner contrary to his intelligently expressed intention,

. The circumstances presented by the evidence in this case, bearing-upon the. intention of the alleged testator are somewhat unusual. As contended by the proponent, the deceased, having no family or immediate relatives for whom he cared, became acquainted with and interested in her, then fifteen or sixteen years of age. For six or seven.years after such acquaintance began he sought to improve her-mind by sending her to school and affording her opportunity to-travel in Europe, to the end that she might become his companion, helpmate, and, eventually, his wife. On behalf of the contestants, it is urged that the decedent’s relations with the proponent were of an illicit nature, and that they were entered into by the procurement or with the consent of the mother for the purpose of obtaining as a price of such relation the property of the deceased. These are the two conflicting theories presented by the evidence in this case bearing upon the real intention of the deceased in respect to the disposition of his property, and it is confidently asserted that such issue, so-far as it is important to be considered, is not free from doubt.

While apparently conceding that the decedent expressed an intention to make the proponent his sole legatee, and especially as indicated by the preparation of the two wills, to which attention will be hereafter called, it is urged by the contestants that such intention was only indicated for the purpose of deceiving the proponent and her mother. The suggestion is that the deceased debauched the proponent when a mere child, and with the consent and connivance of her mother, and that as an inducement to the continuance of such criminal relation, he had promised and was leading them to believe that he would give to the proponent his property, make her by will his sole legatee, but that he had no intention so to do, and that all his words and acts indicating such intention were spoken or done only for the purpose and with the intention of deceiving and to the end that the proponent might continue to sustain the relation of. mistress to him and gratify his lusts. The proposition is so abhorrent, alike disgraceful to all the parties concerned, that we hesitate to adopt it as the true explanation of the many declarations and acts of the decedent which, unless thus explained, indisputably indicate that he intended the proponent should be his sole legatee.

The chief acts done by the decedent indicative of his intention to make the proponent his sole legatee relate to the will offered for probate and to another of practically the same import, and which bears date October 23, 1901, about seven months prior, to the date of the Will in suit.

Concededly the deceased wrote and signed the alleged will of 1901. Every word and figure in it is written by him, except the signatures of the two witnesses. It was written upon a plain sheet of paper, is very brief and purports to devise all his property to ' proponent, and she is named as sole executor. It is written in a bold, steady hand, the arrangement and construction are not faulty, and there is no doubt of its import or of the meaning intended to be expressed. This instrument, however, was not executed as required by statute, although signed by two witnesses. There is evidence to the effect that the witnesses to such alleged will did not sign the same in the presence of the decedent; that one of them at least was not present at the date when it purports to have been executed. At all events it is conceded that such will was not executed as required by' statute and so as to make it valid for any purpose. The evidence, however, relating, to the genuineness of the signatures of the- witnesses thereto as such is voluminous and, as we think, is involved in great doubt. If Mrs. Bell, the mother of the proponent, improperly signed that will as a witness and without the knowledge of the deceased, it would have a very important bearing upon her testimony when she asserts that she signed as such witness the will in question. The purpose in this connection of alluding to the will of 1901 is to indicate that at that time it was apparently, and so far-as appears upon the face of the instrument, the intention of the decedent that the proponent should be his sole legatee. As we have seen, the deceased was a man of affairs and of large property, and it would seem incredible that he should draw a will in his own handwriting and sign it, disposing absolutely of his entire estate, if he had no intention that it should have such effect, and depend entirely upon the chance or suggestion that it would be declared void because not executed in conformity with the provisions of the statute in that regard. As we have suggested, the evidence in respect to the genuineness of the signatures of the witnesses to that alleged will is voluminous and is involved in great doubt. To our mind the important feature of the transaction is not whether or not the decedent made a valid will, which it is now conceded he did not, but whether or not the preparation by him of such instrument which he duly signed is indicative of an intention on his part that the proponent should have his property upon his death. As we have seen, such will, whatever may have been the intention of the deceased, was discovered to be invalid because not executed in compliance with the requirements of the statute. The question recurs,- what was the purpose on the part of the decedent in drawing and signing an instrument upon its face purporting to give to the proponent his entire estate? Was it to induce the proponent to continue illicit relations with him ? Or did it indicate his .real intentions toward her in respect to his property ? We are inclined to adopt that view of the evidence which does not brand the parties concerned as infamous.

Seven months later the alleged will in suit was drawn. Then a regular blank was used. Every written word and figure was in the handwriting of the deceased, as were also the words and figures in the attestation clause. By the terms of- such alleged will all the property of which the deceased should die seized went to the proponent. She was named as sole executrix and the will provided that she should not be required to give a bond as such executrix. Concededly, the signatures of the witnesses to such will are genuine and they both swear positively that it was executed by the deceased in their presence, all as required by law. It is contended, however, that the deceased did not in fact sign or execute such will, but that his signature thereto was forged. Again, it is said that the deceased prepared this formal document only for the purpose of deceiving the proponent and her mother; that he did not intend what the words which he had plainly written indicated, the suggestion still being that a farce was being enacted by the decedent, the purpose of which was to deceive the proponent and her mother. It should be said in this connection that the alleged will is written in a clear, bold and steady hand; there is no evidence of tremulousness; the language employed is in all respects suitable to express the idea apparently intended ; the arrangement is beyond criticism. In fact there is nothing about the paper to suggest that the deceased was intoxicated or that he was not in the possession of all his faculties, It cannot be seriously contended upon the evidence that the testator at the time in question did not have sufficient testamentary capacity to enable him to make a valid will, and that whatever act he did in that regard was not free and voluntary.

Thus far we have indicated that the evidence shows quite as conclusively as otherwise that the decedent intended the proponent should at his death receive his entire property. Such conclusion practically absolves the decedent, the proponent and her mother from any criminal or disgraceful purpose on their part. Any other, conclusion must be based upon a theory or proposition alike infamous to them all. There ought to be no misunderstanding about the proposition involved in this regard. The decedent, who was competent to make a will, either made such will in favor of the proponent because of the love, affection or regard which he entertained for her, or he pretended to make such will in her favor to the end that he might continue illicit relations with her, commenced and continued under such circumstances that by the statutes of the State he was guilty of the crime of rape. As above suggested, we hesitate to conclude that the evidence in this case clearly indicates that the decedent was a criminal, guilty of the crime of rape, that the proponent was a whore and that her mother was a procuress. We prefer to believe that the evidence fairly indicates that all the; declarations and acts of the decedent toward the proponent were home of true regard and indicated his real intention toward her to wit, that she should receive at his death his entire estate.

.. As above suggested, if the decedent did not sign the will in question, no matter what his intention respecting the proponent, she took no interest in his property, and the decree of the learned surrogate should be affirmed. As bearing upon that sole issue, viz., as ,to whether or not the signature to the will offered for probate is genuine, the direct evidence is positive to the effect that it was signed by the deceased as required by the statute. The two alleged witnesses so testified positively. But it may be said that their evidence was more or less discredited by the cross-examination or by other evidence and circumstances. It cannot be said, however, that there is a clear preponderance of evidence in that regard against the proponent’s contention.

A large number of expert witnesses, so called, were called, who testified that the alleged signature was a forgery, and about an ' equal number were called by the proponent, who testified with equal positiveness that such signature was genuine. Without passing upon the merits of the testimony of those learned gentlemen, we are of the opinion that their evidence left the question in dispute quite as involved in doubt as before their evidence was given. The contestants assert that the signature to the alleged will is a tracing of the name written by the deceased at the beginning and in the body of the will. Concededly if one’s signature conforms in every particular to another, one of them must be a forgery, because for all practical purposes no person can write his name twice exactly alike.

Such similarity is not .claimed to exist in the case of the two signatures in question, but rather it is insisted that the tracing is poorly done and that such discrepancies as concededly exist are the result of poor workmanship.. Concededly if the alleged tracing were exact in all its details a forgery would have been proven, but the alleged tracing is so imperfect that the conclusion is in doubt.

In this case, as in all other similar cases, the experts upon handwriting are at variance. A very large number of reputable bank-

ers, business associates of the deceased and others express the opinion that the signature to the will offered for probate is a forgery, while on the other hand, practically an equal number of men accustomed to making comparisons of. signatures and determining as to their genuineness, express it as their opinion that the signature to the will in question is that of Albert G. Burtis, the alleged testator. Some of these attempt' to explain or support the opinion expressed by them by diagrams, measurements and other tests. Others declare that they can best judge of the genuineness 'of such signature by comparing it with signatures concededly genuine in an off-hand way and without reference to the particular lines, or what may be called the technical features of the signature. Almost without exception these men declare that in their opinion the signature to the will in question is that of Albert G. Burtis, the alleged testator. The conflict in the expert testimony, so called, is so great that it would be futile for this court to attempt to learn from it whether or not the signature in question was genuine or a forgery. If it depended upon that evidence we cannot say that the issue is free from doubt, or that we are entirely satisfied with the decision of the learned surrogate. As between the two classes of experts, the mind of the court might incline to one or the other; but in view of the conflict of testimony in that regard and in view of the conflict as to the other circumstances respecting the proponent, and the other facts to which attention has been called, we think this court ought not to say that the issue as to whether or not the signature to the will in question is genuine or a forgery is free from doubt and that it is entirely satisfactory. We do not deem it appropriate or proper to indicate what, in our opinion, the final decision in this case should be as to the genuineness of the signature to the will in question, or as to the other questions of fact raised by the pleadings and which may become important in any future trial. It is only held upon this appeal that in our opinion the questions involved are in serious doubt, and that we are not entirely satisfied with the decision of the learned surrogate. We do not intend to hold or intimate that the decision of a Surrogate’s Court admitting or rejecting a will for probate may not be affirmed, notwithstanding it may be incapable of accurate demonstration that such decision is correct, but we adhere to the ruie, as enunciated in the cases to which attention has been called, that when the appellate court is in doubt and is not entirely satisfied with the decision of the surrogate, the questions of fact Should be sent to a jury under the provisions of section 2588 of the Code of Civil Procedure.

' It would seem that in view of all the circumstances disclosed by the evidence in this case, especially in view of the fact that the body of the will in question, was written by the decedent; that six months before practically the same disposition was made of his property in ,a will, concededly written and signed by him, although informally executed, and in view of all the other circumstances to which attention has been called, this court should not say that the issue as to the genuineness, of the signature to the will offered for probate is free from doubt and that it is entirely satisfied with the determination of the learned surrogate in that regard.

We are led to conclude that the decree appealed from should be reversed on questions of fact, and that the following questions should be sent to a jury for its determination in this case:

First. Was the alleged testator competent to make a last will and testament at the time the will proposed for probate was alleged to have been executed ?

Second. Was such will, if executed, the free and voluntary act of the decedent ?

Third. Was the will offered for probate signed and duly executed by the decedent ?

Williams and Stover, JJ., concurred, Hiscock, J., dissented in an opinion in which Spring, J., concurred.