In re the Probate of the Last Will & Testament of Shaul

Kellogg, J.

(dissenting) :—The learned surrogate did not give sufficient attention to the fact that when the will was made the testatrix was entirely under the control of the residuary legatee. Ordinarily an attorney, a physician or a nurse who obtains a will in his favor is called upon to show that the will is not the will of the beneficiary but that of the alleged testator. The mere formal execution of such a will is not sufficient. All the physicians, three in number, swear that the testatrix was incompetent. She was about fifty-two years of age and resided upon the old homestead with her father and mother. The father died April 20,1910; the mother was very feeble, seventy-upon the old homestead with her father and mother. The father died April 20, 1910; the mother was very feeble, seventy-five years of age, and required constant care. After the father’s death she was melancholy and in a failing condition. The beneficiary came to the homestead as nurse June tenth; the will was made August twentieth, and on August twenty-seventh the beneficiary removed the decedent and her mother from the old homestead to her house. Decedent died there September first. The mother died September twenty-third. No particular relations are shown between the beneficiary and the decedent except that the beneficiary was in the family as nurse for a few days prior to the making of the will, and performed her duty to the satisfaction of the employer. But she was paid for doing that, and such service is no good reason in itself why she should he sole beneficiary under the will.

The attorney who drew the will witnessed it and appeared in Surrogate’s Court and in this court in its defense, and, therefore, has an interest in the litigation. He swears that Martha Shaul gave him the directions for making the will, but that he received the directions and made the will in the presence of the beneficiary. He did not see the mother, who was in the house. Other relatives lived in the vicinity. As he entered the house he spoke to one of the relatives who was at work upon the farm. He does not seem to have exercised the care that would naturally be expected under all the circumstances of this will. The family physician could very properly have been called as a witness. Aside from the confidential relations between the alleged testatrix and the beneficiary there is grave question as to the competency of the testatrix. Her feebleness of mind and body, in connection with the relations existing, throws a great doubt upon the validity of the will. The fact that she permitted herself and her mother to be removed from the old homestead by the nurse so shortly after the death of the father is quite strong evidence that the mind of the nurse was the controlling mind.

the evidence and a new trial before a jury directed, with costs to the appellant to abide the event.

Woodward, J., concurred.

Decree of surrogate affirmed, with costs.