The Assistant Yice-Chancellor
When the will of John Fisher was before the chancellor, he decided that as a will of personal property, it was invalid, and reversed the order of the surrogate admitting it to probate. His decision was upon the ground of the imbecility of the decede nt’smind , and the undue influence to which he was subjected; at the same time avowing his opinion that either ground was sufficient to invalidate the will. (Clarke v. Fisher, 1 Paige, 171.) The question is now presented, upon its validity as a will of real estate, and it is well settled, (although it is to be hoped that as the reason for the anomaly has essentially ceased, the rule itself will be changed ;) that the chancellor’s decree is not decisive or even controlling upon the point now raised. The case of Bogardus v. Clarke, (1 Edw. Ch. R. 266,) exhibits the rule and its reason, in reference to this identical will.
Being thus deprived of the relief which the decision of my learned superior should have afforded, I was induced on my first consideration of the case, to direct an issue. But I found that there were serious difficulties, the fault of the great delay of the parties on both sides unquestionably, but nevertheless such as t am not at liberty to disregard. More than eighteen years have' elapsed since the testimony was taken. Some of the witnesses I know, and I presume many others, are dead. The events are of nineteen or twenty years standing. Few of the benefits of an oral and personal examination of the witnesses could be obtained upon the trial of an issue under such circumstances; and probably neither party would regard it otherwise than as an infliction of unnecessary trouble, expense and delay. I therefore feel it to be my duty, to dispose of the case upon the evidence before me; and I have seldom encountered a duty that in all its aspects, has been so unpleasant.
Before proceeding to the main question, I will premise, that [407]*407the complainants have not brought the necessary parties before the court to have a construction of the will, in case it shall be held valid. And in my remarks upon its character, I shall not go beyond the probable intent of the decedent apparent upon its face; leaving out of view the inquiry whether the will legally effectuates such intent.
First. In regard to the decedent’s capacity to make a will.
This inquiry led to a minute investigation of his health, and the history of his life from the first of May, 1823, until his death on the 29th of June, 1827.
Prior to May, 1823, the decedent had enjoyed good health and all the testimony concurs in representing him to have been a man of unusually strong and vigorous intellect, and of uncommon argumentative powers. He was at that time living with his first wife, but was childless, his only son having died before attaining to manhood, many years before. His blood relations were a brother, George L. Fisher, then unmarried, and two nieces, the daughters of another brother who had been dead ever since 1787. Both of these nieces had been married a long time, and had families of children. One of them resided in Brooklyn, and the other in Western New York. There does not appear to have been any intimacy or correspondence between the decedent and the latter family, nor much intimacy with the family of the other niece, who resided in Brooklyn. He was not in the habit of visiting there often, but this niece, Mrs. J. B. Clarke, visited his house, and in the early part of his sickness, was a constant visitor there. The decedent’s wife had sisters and a brother living in the vicinity, but no intimacy between them and the decedent is shown.
At the period of his illness, he was sixty-six or sixty-seven years of age.
I will mention some of the dates which become important in the inquiry. The attack of apoplexy was on the 3d day of May, 1823. His first wife, Cornelia Rapelye, died on the 4th of March, 1824. The decedent married Diana Rapelye, the sister of his first wife, on the 31st of October, 1824. The will in question, was made on the 2d of May, 1827, and he died on the 29th of June following.
[408]*408The bill alleges that the stroke of apoplexy deprived the decedent of his speech and the use of his limbs; almost destroyed his mental faculties, and rendered him totally incapable of thought. That the apoplexy gradually terminated in palsy under which he permanently continued, and by which he remained deranged in mind, and entirely incapable of transacting any business whatever. For one or two weeks succeeding his wife’s death, his mental faculties appeared to be partially roused, so that he appeared to comprehend in some measure conversation which was addressed to him, and to answer it partly by signs, and partly by speech, but he continued entirely palsied and helpless in limbs and body. And except during that fortnight, the bill charges that there was no time between ■ May 3, 1823, and his death, when the decedent was capable of comprehending and assenting to a will: and the complainants are not satisfactorily convinced of his capacity during the excepted period.
The bill was verified by the oath of James B. Clarke, who, if intestacy were established, was tenant by the curtesy of one-half of the real estate.
The answer of Diana Fisher, which is responsive to the bill, admits that the apoplexy terminated in palsy, and that the decedent continued enfeebled in his limbs and body till his death. She denies that he continued wholly helpless or unable to rise ; or that he was imbecile, enfeebled or unsound in mind, after his partial recovery from his first attack; and she avers that the state of his mental faculties improved after the spring of 1824, and were stronger and more sound the last year of his life, than they were the fortnight succeeding his first wife’s death.
There are some facts respecting the decedent’s situation, which are so clearly established, that I need not refer to the particular testimony by which they are proved; and will proceed briefly to state them.
His attack of apoplexy was very severe. It paralyzed him and deprived him of. his senses. Apoplexy always affects the brain, and one physician says his was particularly affected. The decedent however had so far recovered, that before Dr. Ball ceased his attendance, which was the latter part of July, 1823, he un[409]*409derstood the doctor’s questions, and his speech had become so far intelligible, that the doctor could understand some of his words. The palsy in which it terminated, was not decided hemiplegia. The hands and feet were affected, and one side somewhat more than the other.
In the early period of his illness he could not feed himself, but he could the last two or three years, and could use his hands, and draw up his feet. He spent most of his time in bed, but during those three years, he could and did set up for hours at a time, and could sit without assistance or support. He was also in the habit of riding out occasionally, and once in 1825 or 1826, (as it casually came out in the testimony,) he rode to Bloomingdale in New York, some six or seven miles, and remained there to dinner. He was helped into and out of the carriage on these occasions.
During the whole time, his articulation was considerably impaired, but those in the habit of conversing with him, readily understood what he said. At various periods, it was shown that he had a sore mouth or ulcerated tongue, which was probably in part the cause of his defective utterance.
To those who saw him but once, or unfrequently, his speech was understood with difficulty; and to some of those persons, he had the appearance of crying without cause, and of laughing and crying together.
No person was appointed to manage his affairs, but he was left to direct the transaction of his business, to the close of his life. And during his life, no distinct allegation .appears to have been made by any of his relatives or friends, that he was imbecile or unsound in mind.
A great part of the testimony adverse to the will, relates mainly, and much of it exclusively, to the attack of apoplexy, and the time immediately succeeding it. Such of it as is clearly brought to bear upon the time subsequent to Mrs. Cornelia Fisher’s death, will be noticed more at large.
There is no lunacy, or habitual insanity, imputed in this case; and I do not understand that it is to be treated as a case of general derangement of mind, because it is shown that for two or three months, or even four or five months, the decedent was [410]*410laboring under and recovering from an attack of apoplexy, and was suffering its necessary and usual concomitants, a deprivation of reason in the outset, and its gradual restoration. On the contrary, the recovery from its effects, so far as to survive four years and upwards, presumptively shows that the patient must have overcome its most violent and peculiar features. It is true, the mind is often left imbecile; but that is in cases of a lingering continuanceof the disease; and I find no such instance stated by medical writers, where the patient survived four years without any intervening attack. The fact that palsy ensued, does not affect the point; for palsy is not shown to impair the mind, any more than the ordinary diseases which reduce the bodily strength.
I may err in my view of the subject, but I think that the delirium or imbecility of mind, or unconsciousness, which ensues from violentor acute diseases, is not to be regarded as establishing a general derangement of intellect, so as to throw the burthen of proving a sound mind, upon the party setting up a deed or will executed long after the force of the disease is spent, or it has terminated in one of a different character. Without stating the cases at large, I refer to Attorney General v. Parnther, (3 Bro. C. C. 441;) White v. Wilson, (13 Ves. 88, 89 ;) Waters v. Howlett, (3 Haggard, 790;) Chambers v. The Queen’s Proctor, (2 Curteis, 415.) And see In the goods of Field, (3 Curteis, 752,) where the will of a paralytic, made when incapable of speech or of signing his name, was pronounced for, however it was not contested.
In this case, if the complainants are driven to prove mental imbecility in May, 1827, without the aid of the presumption of general derangement of mind continuing from 1823 ; they must fail beyond a doubt. With the weight of the answer, and of all the positive testimony of the decedent’s acts in 1825,1826, and 1827; there is no sufficient testimony on the other side, within those years, that is at all adequate to compete.
Assuming however, that it is incumbent on the defendants to show the decedent’s restoration to the use of his mental faculties; how stands the case ?
Much of the testimony, as is usual in these cases, consists of [411]*411opinions of witnesses. The opinions of physicians are proper evidence. The opinions of others, are to be weighed by the facts on which they are based; and the facts are therefore more important than the opinions. (See Evans v. Knight, 1 Addams, 229, per Sir John Nicholl.) As to the physicians, Dr. Ball, who attended him in his first attack, for several weeks, thinks he prescribed for him once in February, 1824; but he did not visit him at all after March, 1824. He perceived no change for the better after July, 1823 ; yet the bill founds an important allegation on a change early in March, 1824, and every witness who saw him frequently, speaks of a decided and marked improvement after the summer of 1823.
Dr. Wendell visited him as a physician during the first month of his apoplexy, and saw him again but without conversing with him, during Mrs. Cornelia Fisher’s last illness in February, 1824. His opportunity of judging, after the first attack, was too limited to enable him to give a reliable opinion. His testimony as to apoplexy, goes far todo away with the idea of a general derangement of intellect, being applicable to this case.
Dr. Rowland’s testimony is more important, for it relates to April, 1827, just before this will was executed. He thought the decedent’s mind was very weak, and that he Was not capable of making a contract. Dr. R. did not converse with him, or hear him say any thing from which this opinion was formed. But it was from his laughing and crying, the appearance of his countenance, and his doing nothing except through his wife, and assenting to all she proposed and said. Yet this witness did not hesitate to enter into a written contract with the decedent, and one which it is evident would not have been made by either the witness, or by Diana Fisher, without the decedent’s presence and sanction. The act in this instance, speaks louder than the opinion.
On the other hand, Dr. Cameron, who attended the decedent occasionally, and was his only physician, after the spring of 1824, did not perceive that his mind was diseased, and has no doubt that he was of sound mind. Dr. C.’s last visit was in April, 1827. His opinion is strongly corroborated by that of Dr. 'Watts, who saw the decedent once only, in July or August, 1826, [412]*412Though Dr. W. had never conversed with him, he had no difficulty in understanding what he said. The conversation which he details, can scarcely be reconciled with mental imbecility. Few wills made during sickness, can ever have the support of as strong proof of sound and disposing mind and memory, as is afforded by this interview with Dr. Watts.
Upon the testimony of the experts therefore, the proof of capacity is strong. The two attending physicians in 1823, are restricted to the first attack. Dr. Rowland is much shaken by his own act, and the testimony of Drs. Watts and Cameron, prove abundant capacity in 1826, and the’latter its continuance to the era of the will. In a case much weaker than this, upon, the medical testimony, Sir John Nicholl disregarded the opinion of both the attending physicians. (Evans v. Knight, 1 Addams, 229.)
The other witnesses against the will, who did not see the decedent after Mrs. C. Fisher’s death, I need not advert to in detail, in the view I am now taking, in which I am throwing the bur-then on the defendants.
Two circumstances, which they in common with others, dwell upon, I will mention. The laughing and crying, or appearance of so doing, was in part natural, and is thus accounted for. The decedent was easily amused, and would laugh at a joke or interesting remark. And it was equally natural that he should shed tears, when meeting or parting with an old companion, associate, or friend ; for he could .not help being deeply moved by his situation, and its contrast with his former active and energetic life. The laughing and crying in the same breath, was doubtless, the nervous affection of the muscles of the face, or hysteria, which is described by the physicians. That this is the explanation, is proved by the fact that those who saw the decedent daily or frequently, and were accustomed to the appearance of his face, discovered nothing of this simultaneous crying and laughing. The childishness, which is mentioned by some of the witnesses, is founded mainly upon this appearance of the face ; and not upon what he said or did.
The other circumstance, the difficulty in conversation, was in part ideal, as proved by Dr. Watts and numerous other witnesses; and in part was owing to the defective power of articulation, from [413]*413causes before mentioned. This defect to one seldom seeing him, would appear to arise from want of mind, while it may havehad nothing to do with his mental capacity.
Of the witnesses against the will, after the death of Mrs. C. Fisher, Mr. Sands saw him once just after her death ; again in the fall of 1824, or winter of 1825 ;»and for the last time, in the summer or fall of 1826, for about five minutes. He says he thought the force of the testator’s mind was gone. This might well be, and leave enough mind to make a will. The witness says the testator could understand little things, as the incorporation or location of a bank, and matters generally which affected his interest. And he proves that the decedent did understand, when the witness called to surrender the lease for a tenant. But some new phase in politics, the decedent could not appreciate, (in 1823, 4;) and the witness thought he could not form just conclusions in any thing complicated.
Now there are three facts in this testimony, which with what I have already stated, go far to sustain the decedent’s capacity by this witness. In the spring of 1824, the witness was present and aiding in the execution of the decedent’s will. In the fall or winter ensuing, he called on the decedent to negotiate and effect the surrender of a lease; apd in the summer of 1826, he as the keeper of that will, at the request of the decedent, restored it to him, obviously to be cancelled. (See Sir Herbert Jenner Fust’s remarks on similar acts, in Wrench v. Murray, 3 Curteis, 623.)
Mr. Spooner, another intelligent witness, was decidedly of the opinion that the decedent had not sufficient mind to transact business. He states the fact that Mrs. Fisher did the talking, and received payments made by him, and he could not understand what the decedent attempted to say. His last interview was in February, or March, 1827, and though Mr. Spooner, and Mr. Wright who was present and who never saw decedent after his first attack, except on that occasion, could not understand his words; both could perceive that he gave the direction to the donation ; and his giving it to the poor of Brooklyn, instead of the Greeks, did not argue any absence of sound judgment. Mr. Spooner also was not unwilling to pay his bond and mortgage in decedent’s [414]*414presence ; though it may be he imagined that the wife of an imbecile had authority to transact all his business.
Thomas Lawrence, (whose deposition I think is admissible, as taken down by the surrogate, although not signed,) did not see much of the decedent, after his first wife’s death. He founds his opinion on the decedent’s appearance, and his inability to converse. Yet this witness thought he ought to make a will.
John F. Lawrence, saw the testator only two or three times, after he recovered from the severity of the first attack. The last occasion was in December, 1824, and then in the face of his declared opinion as to his compe tenc3q he received the decedent’s check for more than SI00.
Mr. Nichols, who was over seventy-eight years of age, visited the decedent five or six times, during the four years. He had no business with him, and did not converse with him, because the witness thought it useless. He inferred unsoundness of mind, from the decedent’s holding on to his hand a long time, when he came in, and laughing and crying in the same breath. Mr. Nichols had been very intimate with him in former years.
The opinion of Elizabeth Denyse, who did not see him after 1825, and who speaks to no tangible fact in regard to his capacity, is too extravagant to require any notice.
Mr. F. Hopkins, saw the decedent only about five times, and except once, was with him not more than a minute at a time. This did not enable him to form any opinion, and he relates no material fact.
H. W. Cady saw the decedent but once, in December, 1826; and then thought he was not in his right mind, because the witness could not understand what he said.
Mrs. Park formed no opinion as to his mind, but was at the decedent’s house the day the will was made, and Mrs. Fisher said he was too low for any one to speak to him. This was not inconsistent with sufficient capacity. The decedent had been unusually tasked on that day, both in mind and body, and it was quite of course that he should be depressed, after the excitement of the occasion was at an end.
Of Messrs, Titus, Stillwell, and S. James, it is sufficient to [415]*415say, that their opportunities were not such as to enable them to aid the judgment of the court.
Some other witnesses who were much relied upon, do not come within the period after Mrs. C. Fisher’s death. Thus Bishop H. U. Ondcrdonk, (who says that his recollection as to dates and times is very imperfect,) Í am satisfied, did not see the decedent after March, 1824, except on his New Year’s call on the 1st of January, 1825.
Gen. Bogardus saw the decedent while laboring under his apoplectic attack, and the conversations he relates, were in the summer of 1823. 1 think he did not see the decedent after the fall of that year. Mr. Bogardus did not scruple, even in that, the worst stage of his disease, to obtain the decedent’s checks for $250 and $500.
Mr. Vandenhoef visited the decedent with Dr. Ball, and this fact carries his testimony back to the winter of 1824.
Mr. Tredwell never visited the decedent after the death of Mrs. C. Fisher, and it is doubtful if he saw him after the fall of 1823.
One witness remains, upon whose testimony great reliance was placed ; the male nurse, Lowther. He was with the decedent from the last of May, 1823, till the first of May, 1824; and saw him twice or three limes subsequently, the last occasion being in November, 1824. His testimony is not very marked as to the decedent’s mental capacity, and it is more pointed upon the question of undue influence. But I may as well state here my impressions "of it, upon a careful and repeated perusal. He obviously testifies with a feeling or prejudice against the defendant ; the cause of which appears in his being dismissed from service. The dismissal was clearly unexpected, at the time it occurred, for he had just brought his wife there, and they were occupying the front basement. This feeling of ill will, has led him to testify quite loosely. Thus, he says he did not see the testator grow better or worse, during the eleven months he remained there, nor did he perceive any difference in his speech , and his mind was no better after his first wife’s death, than it had been in the previous part of his illness. Now contrast this with the proof on all hands, that when this witness first took [416]*416charge of the decedent, he was in the first stage of recovery from a violent apoplexy, helpless and incapable of speech, and his mental faculties just emerging from a total eclipse ; and the equally conclusive proof from the complainant’s own witnesses, that before Lowther left, the decedent could converse intelligibly with those accustomed to him, was able to sit up and ride out, and was consulted in respect of his business affairs; contrast it with Lowther’s own statement of .what the decedent said and did ; and it goes far to destroy confidence in his testimony. The deposition, though unfortunately, not taken down by question and answer, shows how the witness was led, by the examining counsel. His first assertion as to the decedent’s capacity, was that “testator’s mind was pretty weak.” His specification in support of this is, that the decedent could understand the witness, but could not understand all subjects, or if he did, he did not let it be known. The latter was certainly probable, for it is not to be supposed that a man of the decedent’s intelligence and standing, would be very familiar on abstruse or general topics with his nurse, unless he had really become childish; or that he would converse with Robert Lowther as he would with Dr. Watts or Judge Furman.
To pursue the witness’s course of testifying, his next point is, that the decedent was childish, and would cry and laugh almost in one breath, when people came in. I have said all that is necessary, upon this crying and laughing. The childishness is to be determined by his sayings and doings. Next, the witness says the testator did not transact any business. This was a sweeping statement, and he is made to qualify it forthwith; and finally, his deposition shows no instance of a purchase being made of any kind, without the decedent’s being consulted, except the single occasion of the goods procured for mourning, on Mrs. Fisher’s death, and he found fault with that, and was angry about it. He testifies that when Mrs. Hawksworth asked hitó how he thought it would do for the testator to marry Diana, he replied it would not do at all, it was against the gospel for a man to marry his wife’s sister. No ground of mental incapacity, or even of personal impotence, then occurred to him. After a considerable interval, he was brought to this point again, and he [417]*417says “ in his opinion testator was not in a fit situation to be married, no more than a dead man, for he could not move himself in bed without help.” He adds, that he saw no other reason, than that he was so helpless. This answer negatived mental imbecility, and the witness was pressed again, and then he says to the best of his opinion, testator’s mind was as unfit as his body. To recur to the prior answer, as to the decedent’s inability to move in bed, (and this was after Mrs. C. Fisher’s death,) the witness had only a short time before, in exhibiting the indecency of Mrs. Hawksworth and the first Mrs. Fisher, represented the testator as repeatedly kicking off his bed clothes, and persisting in so doing, in the summer of 1823, while suffering under his first attack. The witness however corrected himself, so far as to say that the decedent could use only one leg at a time. The witness stated that Mrs. Hawksworth and Miss Rapelye, (the defendant, Diana,) lived with the testator while he was there, and controlled and managed his affairs. By and by, he testified that Diana did not come there till the fall or winter before her sister’s death, and he made out that while she lived, the first Mrs. Fisher managed, and after her death, Mrs. Hawksworth.
So in regard to his own dismissal, he saw a plot of which he was the victim. He says he saw that Mrs. H. and Diana, were working a plan that he “ should not be there to hear their conversations or actions.” Yet when the facts are drawn out about his leaving, it seems that the decedent complained of his not getting up earlier in the morning, Diana said he got too much wages, as to which the decedent said nothing, and Mrs. H. made no complaint at all, but thought the witness ought to stay.
Surely, a witness who thus exhibits himself upon the stand, is not entitled to much weight, in deciding grave and important questions of property.
I have now gone through with the testimony against the will, at the same time presenting in connection, all the testimony of the physicians on both sides. I am now considering the case, on the footing that a general derangement of intellect in 1823, has been shown, and that it is incumbent on those sustaining the will, to show the restoration of sufficient testamentary capacity. [418]*418In this view, the testimony for the complainants, is certainly corroboratory of the continuing mental imbecility, to a great extent-
1 will next look at the other side of the case, omitting as in the foregoing, all special reference to the time antecedent to the first Mrs. Fisher’s death.
First in order, is the answer of Diana Fisher, entitled to the weight of two witnesses, speaking directly to the point.1 Next is the testimony of Dr. Watts and Dr. Cameron, which I have sufficiently stated.
After these, a great number of witnesses testify to various conversations, and acts of the decedent, showing mental capacity. Sarah Ann Ryder, lived in his family four years, down to November, 1824, and saw him occasionally till the ’summer of 1826. While an inmate of his house, she saw him daily. Her opinion, like- that of Lowther’s, is of itself unimportant, but she testifies to several facts, which indicate sufficient mental capacity in the decedent. And she proves also, the real cause of Lowther’s dismission, viz. frequent and long absences, and a disobliging angry temper.
I ought perhaps in justice to myself, to go through with a minute examination of this testimony, but it would swell beyond endurance, a judgment which is likely to be tedious at best.
Of these witnesses, there are several who were in the habit of seeing the decedent daily, and at various hours of the day, during considerable periods of the last two or three years of his life ; two at least, who resided under the same roof, for more than a year next preceding his death ; two others who resided in the house for several months, in the year 1826 ; and one who was there for two or three weeks after this will was made. These witnesses, with the best opportunities of knowing and observing any act disclosing mental imbecility, all concur in proving him to have been of sound mind.
An d I may here remark, that if this decedent after February, 1824, were really such a mere intellectual wreck, as he was represented by the complainant’s counsel, it is very surprising that during the three years preceding his death, not a single act or expression of his has been brought forward, which sustains the charge. On the contrary, there are many acts proved, which [419]*419are to my mind, utterly'at war with the position that he was, or that his relatives deemed him to be, of unsound mind.
1 have alluded to their omission to interfere by obtaining the appointment of a committee of his large estate. It does not meet this point, to say that no disposition which he could make, would be valid, because he was non compos mentis. He had a large personal estate, and valuable stocks. What was to prevent him, or the persons about him, from wasting and making away with the whole of them ? If reference be made to the will of March, 1824; that was given up by Mr. Sands to be cancelled in 1826, and from his position with these parties, when the will was made, I cannot doubt but that the decedent’s relatives were at once apprised of its being cancelled.
But the acts of Mr. James B. Clarke, which are pertinent in respect of his relationship, and his being a party in the outset of the suit, are of themselves almost conclusive of the decedent’s capacity.
In March, 1824, he was present, aiding and active, in having the decedent execute a will; and there is no doubt whatever, that the latter was more-competent after that period, than he then was. In the winter of 1827, Mr. Clarke procured Mr. Dean, then a commissioner of deeds, to go to the decedent’s, and have him obtain the execution and acknowledgment of two deeds by the decedent and his wife. (Mr. Dean’s account of that interview, I ought to mention, is strong proof of the decedent’s soundness of mind.) The answer proves the execution of similar deeds by the decedent, the day before his death; but that part of the answer which states that they came from Mr. Clarke, is not re-sponsive to the bill.
It would not affect the force of this testimony, if it had been proved that the deeds in 1827, were executed pursuant to previous contracts, but it is not proved.
When the court finds Mr. J. B. Clarke, a lawyer, and a man of business, (the leading party also in contesting this will,) dealing with the decedent in 1824, and again in 1827, as a man capable of making a will and executing conveyances; how can it say in his behalf, that the decedent was not competent 1 Various other instances are proved, in which the decedent transacted bushr [420]*420ness without any difficulty, and with good judgment. As, the hiring of the office to the Brooklyn Insurance Company in 1824 ; the lease for ten years to the husband of Mrs. Rose, formerly his domestic, executed in July, 1824.
So of the leases to Mr. Birkbeck in the summer of 1824, for twelve years; and 1 might refer particularly to Mr. Birkbeck’s account of this transaction. In all these instances, the decedent negotiated the terms, and signed the leases, as he did the deeds in 1827.
He made three distinct purchases of land, of the Misses Bowles, in or about L824, 1825, and 1826. And in short, so far as I can discover, he transacted all his matters of business, with as much capacity, and as much of his personal intervention and direction, for the last three years of his life, as any man could do, however vigorous and undimmed his intellect, who was confined to his room all the.time, and a part of each day to his bed.
I now come to the making of his will. For his general capacity on that day, we have the testimony of Rime Scott, as well as that of the three subscribing witnesses. And George Scott-saw him the next morning.
Much stress was laid upon the manner in which Mr. Phelps obtained instructions for the draft of the will, and it is insisted that the decedent gave no instructions. Several authorities were cited, to show the necessity of instructions. In one of these, Billinghurst v. Vickers, (1 Phillimore, 187,) there were no instructions or directions whatever, yet the will was established as to all of it, except the addition in the hand writing of the executor and principal legatee. And it is only where the capacity is doubtful, that proof of instructions is ever required. In another of the cases, Brogden v. Brown, (2 Addams, 441,) the will was sustained without proof of instructions, although the capacity was questioned, the will not being “ inofficious.” It was said they might be presumed in that case. I was also referred to Ingram v. Wyatt, (1 Haggard, 384,) where the instructions came from, the principal legatee, who was not a relative, and the testator’s relatives were almost wholly excluded. I need not comment upon it, as it was reversed upon appeal. (3 Haggard, 466;) but the opinion of the judge in the prerogative court would sus[421]*421tain this case on the instructions proved. In Barry v. Butlin, (1 Curteis, 637,) the subject of instructions was ably discussed by Parke, Baron, delivering the opinion of the judicial committee of the privy council, and he limits it to cases where the person who draws the will, takes a benefit under it, and there are besides, circumstances of suspicion, greater or less, arising from the capacity of the deceased, the .extent of the legacy'given to such person, the amount of property disposed of, and the claims of other persons upon the testator. And in Durling v. Parker, (2 Curteis, 225,) Sir Herbert Jenner, not only approves Baron Parke’s opinion, but declares that it has always been the doctrine of the prerogative court. And see Wrench v. Murray, (3 Curteis, 623.)
The instructions here, were obtained in the presence and hearing of the decedent. That he was able to hear, to understand, and to express his assent and his dissent, is not to be doubted ; although Mr. Phelps, who was not accustomed to converse with him, could not understand all his words, beyond his assent and dissent. But each disposition was canvassed, before it was entered upon the solicitor’s memorandum; the decedent himself named the banks in which he had stocks, and decided upon the two executors, excluding one suggested by his wife. During her absence from the room, Mr. Phelps repeated his inquiry in regard to the directions for her benefit. He proceeded with great care to obtain the decedent’s views, and made minutes of the whole, and from those drew up the will in his presence. It was then read to him by Mr. Phelps, in the presence of Cornell, the decedent declared his approval, signed it himself, without aid, and acknowledged his signature. He was in his bed most of the time, but was sitting in his chair when he signed it, and continued sitting there unsupported for half an hour, and the witnesses left him in that situation. He appeared desirous to have his will drawn. The other two subscribing witnesses, confirm Mr. Phelps as to his capacity, and one of them says he was present when it was read before it was signed. Two or three witnesses saw the testator after the will was executed, and before his death, when he appeared to be of sound mind, and his bodily condition similar to what it had been previously; and Mrs. Jewett saw him sitting up [422]*422in his chair, the day before he died, and he bowed to her as she passed by his door.
I must say, that there is no circumstance attending the execution of the will, which is calculated to make me doubt its being understood and intended by the decedent, or his capacity to make it.
If there be any thing incongruous in its terms, the fault is that of the solicitor who drew it up, rather than that of the decedent’s instructions. It was said to be contradictory and repugnant, to such a degree that it is insensible and void. Confining myself to what I believe from the terms of the will, to have been intended by the decedent, I think he designed to leave all his property to his wife for life, and after her death to have the whole capital go to the persons named and described as residuary devisees and legatees.
If I am correct in this view of his intent, the will was “ officious,” in the language of Sir John Nicholl. Having no children, it was natural for him to give to his wife the use of the whole during her life. Of the remainder, five-eighths were left to his own blood relations, (assuming for this purpose that G. L. Fisher left a child,) and three eighths to his wife’s relatives. The latter had no particular claims upon him, but on the other hand, the Clarke’s were no nearer than nieces, and it is not improbable that the claims of their mother’s estate, so zealously urged by Gen. Bogardus, in his early sickness, had soured the decedent’s mind towards them.
It is to be observed, that a will is not to be set aside on as slight evidence of mental unsoundness, as would overturn a conveyance or contract, in which the consideration was very questionable, or the terms grossly unequal.; or a gift inter vivos, to a person who had no reason to expect it from the donor. Valid wills are made daily, by persons in the last stages of disease, when they are too feeble to sit up in bed, or to speak above a whisp'er, and when the mental powers must necessarily be much impaired. These circumstances are not considered as entitled to weight, unless the dispositions made by the testator are extravagant, or widely different from those which his situation and that of his family would lead a sensible man to expect. I refer for [423]*423my views on this subject, to the judgment of Sir John Nicholl in Ingram v. Wyatt, (1 Haggard, 384,) and of Dr. Calvert, in Middleton v. Forbes, there stated.
In Barry v. Butlin, before cited, the will was prepared by the solicitor of the deceased, and he took a considerable benefit from it. The only son of the deceased was entirely excluded. The testator was of slender capacity, and indolent habits, of a retired disposition, addicted to drinking, somewhat singular in his appearance, frivolous and occasionally childish, in his occupations and amusements. He was an old man, and his son’s conduct had estranged him. The court deemed him to be of testable capacity, though weak, and the privy council, affirming the prerogative court, sustained the will. In Williams v. Goude, (1 Haggard, 577,)the testator had an attack.of apoplexy in June, 1819, from which he recovered so as to attend somewhat to business, for nearly three years afterwards, and was carried off by another attack in June, 1822. The will was executed ten days before his death, and after a life interest to his wife, it gave his entire property with a trifling exception, to his wife’s nephews, excluding his sister’s children; and on the circumstances, it was sustained. The case is instructive in respect of the extravagant opinions given by the witnesses against the testator’s capacity; even his medical attendant saying he was in a state of absolute fatuity. The court nevertheless relied upon acts, rather than opinions.
Upon the whole, I find myself unable to doubt, but that John. Fisher, when he made this will, was of sound, disposing mind, memory and understanding, sufficient to make a proper testamentary disposition of his property, and that the will was drawn up and executed in conformity to his intention.
The next ground urged by the complainants, is that the testator was induced to make and publish his will, by fraud and undue influence upon him, and exercised over him, in his last sickness.
This leads me to speak of his second marriage, which was the theme of much invective at the hearing. Besides the force of the answer, contradicting the allegations preliminary to the marriage, they have no support in the testimony, coming as they do [424]*424from Lowther, six or eight months previous to its occurrence, and he being unworthy, of credit. The answer proves that the parties cohabited, and Ryder proves that Diana slept with the testator after the marriage. On the day of the marriage0 the testator sat up all day. His condition had been improving slowly, for nearly a year, and although a paralytic, and without any reasonable hope of entire recovery, he was not a bed-ridden idiot; or incapable of a just appreciation of his condition.
It is not very surprising that a man who had no children, no brothers or sisters, nor any near relatives by blood, who could or would devote their personal attention to his care and comfort, and who stood so much in need of constant care and assistance, as this testator did the last four years of his life, and who had an ample property at his disposal; should seek to secure such attention and assistance by a marriage. The marriage in question was suitable in point of age, and previous connection, and in the person and character of the wife, so far as this case discloses either. It was not a love-match, but it was the dictate of prudence and forethought on one side, and doubtless of interest on the other. Many marriages in early life, have no more worthy principle or motive than these. The marriage gave to Diana, a better claim upon the testator’s bounty, but if the testimony pressed upon me is to be credited, it did not increase her power or control over the testator’s mind or .person.
The allegation of undue influence in this case, rests mainly upon the imbecility of the testator’s mind, and as that is not shown to my satisfaction, there is not much to sustain the former. - The strongest witness on this point, is Elizabeth Denyse, who it seems lost her place as the housekeeper of G. L. Fisher on his marriage, and she thought that marriage was a part of .Diana’s doings. She however testifies to nothing beyond Diana’s desire to have a will executed.
In this connection, I will refer to the suppositious child of G. L. Fisher, and the stupendous fraud in that behalf, in which Diana Fisher is accused of participating. Taking the answer and testimony together, there is no proof that she knew or suspected that the child was not her brother-in-law’s. And I am .really at a loss to perceive how Diana Fisher was to be the [425]*425gainer by multiplying collateral heirs to her husband, and by such new, and from their tender years pressing, claims upon his bounty, interposing obstacles to a will in her own favor.
One other allegation remains to be noticed; the exclusion of Mrs. James B. Clarke from intercourse with her uncle. This rests wholly upon the testimony .of Lowther, and he does not pretend that Diana Fisher ever treated Mrs. Clarke with any incivility or disrespect. If he had so testified, I could not safely rely upon his testimony.
As an entire refutation of the complainants evidence to prove undue influence and fraud, there is the answer of Mrs. Fisher, responsive to the bill. And I will add that in my view, the testimony sustains the answer.
The influence of affection or attachment, is not such an influence as will vitiate a will; or the mere desire of gratifying the wishes of one who is entitled to consideration and remembrance in the disposition of the testator’s effects. It was urged that Mrs. Fisher attempted to conceal the fact that a will had been executed, thus exhibiting a consciousness that it would not bear the light. There is no proof of this. The conversation related by Mrs. Park, was with another person. And the three witnesses to its execution, prove no request or apparent design to have the fact concealed.
The authorities cited, do not sustain the complainants, as the case is presented by the pleadings and testimony.
In Ex parte Fearon, (5 Ves. 633,) there was clear evidence of undue practices, if not of positive fraud, to the exclusion of the testator’s natural daughter, and contrary to his intention repeatedly avowed, and pressed only two days before his death, upon the party who obtained and set up the will.
In Brydges v. King, (1 Haggard, 256,) the deceased was in a state of extreme weakness and debility, the codicils then made were entirely at variance with her character, her affections, and her former testamentary dispositions. Her capacity was exceedingly doubtful, and the testimony of the witnesses about her person, in support of the codicils, was suspicious and contradictory.
In Marsh v. Tyrrell, (2 Haggard, 84,) the will was in favor [426]*426of a husband who had married the testatrix, when an old maid and far advanced in life. It was entirely at variance with a prior will made after her marriage ; and on these facts, and proof of strong means previously used by the husband to obtain the control of her property, her resistance while her health continued, and his contrivances in procuring the execution of the will and codicil propounded, just previous to her death, and while her capacity was doubtful; the court concluded that they were obtained by undue influence and marital authority.
In Blatchford and wife v. Christian, (1 Knapp’s R. 73,) conveyances were set aside as being obtained by fraud and undue influence. The grantor was an old man, separated from all his relatives and connexions, and conveyed nearly all he possessed, to persons w-ho were neither related or connected with him, in derogation of a previous revocable conveyance in favor of his niece. No previous draft of the deeds was made, or opportunity given to him to read, alter or correct' them. One was dated in August, and the other in September, and before" the close of the same year, the grantor was found by an inquest to be a lunatic.
In Baker v. Batt, (1 Curteis, 125, which though not cited, bears upon the point,) the will was obtained by a husband from his wife by fraudulent means, only two days before her death, after persevering efforts for two or three months. The testatrix had been ill several months, was about sixty years old, and had been married to the principal legatee, only about nine months when she died.
I ought to observe, in reference to Marsh v. Tyrrell, and Baker v. Batt, that the presumption of undue influence exercised by a husband over a feeble and dying wife, is far stronger than any that can be indulged, when a similar charge is made against a wife in respect of her deceased husband.
The case of Whelan v. Whelan, (3 Cowen, 537,) was one not merely of undue influence. The parties there practised a gross ■fraud upon their father, (who reposed- unbounded confidence in them,) through his passions and his fears.
In my judgment, there is no fraud shown, nor any such undue influence, as ought to induce the court to set aside this devise.
[427]*427I must be permitted to say, that I have come to this conclusion with great hesitation and reluctance, and not till after a most diligent examination of all the testimony in the cause. Not that I entertain any doubt in my own mind, but I cannot avoid perceiving, that even with the weight of the responsive answer of Mrs. Fisher in this case, (which was wanting on the probate of the will,) I must have.differed in my view of the testimony, from the chancellor’s estimation of it on the appeal from the surrogate. And I can never differ, even partially, from so profound, learned and experienced a judge, without feeling a painful distrust of the correctness of my own judgment.
It nevertheless devolves upon me to decide the cause, and in disposing of it to the best of my ability, I must decide in favor of the validity of the devise, so far as it respects its due and proper execution, and the testamentary capacity of Mr. Fisher.
If the complainants desire to have a construction of the devise in this suit, it may be accomplished by a supplemental bill, bringing in the necessary parties. The decree granting such leave, will declare the validity of the will, and reserve further directions.
If they prefer to leave the question of construction for another occasion, this bill must be dismissed with costs, as to the defendants who contested at the hearing.
The arrangement in regard to Magdalena Fisher, may be carried out in the decree.