In re Proving the Last Will & Testament of Bedell

107 A.D. 284, 95 N.Y.S. 12

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1905
• Status: Published

Opinion

Miller, J.:

Abram Bedell died on the 10th day of March, 1904, leaving an alleged last will and testament,‘dated June 1, 1898, purporting to bequeath and devise to one Joseph Bedell, a grandson and the only descendant of the testator, the homestead, valued at $2,100, and $1,500 in money, to a halfbrother $500, and to one Charles S. Powell all the residue of his estate, which at the time of his death amounted to approximately $7,500. The will also contained a provision bequeathing and devising to the prospective wife of the testator, in case of his marriage, the use of said homestead property and .$1,000 in money in lieu of her. dower rights. At the time of the execution of the will the testator was seventy-five years of age, partially deaf, and unable to read or write. The said Charles S. Powell, the residuary legatee, was a young man thirty-seven or thirty-eight years of age, in no way related to the testator, and there is- not a single suggestion in the record why he should have been made the object of the testator’s bounty to the extent of three-fourths of his estate. The testator appears to have been at all times on friendly terms with his grandson, and the last year or two of his life his grandson lived with and took care of him. Several witnesses testified to declarations of the testator- indicating an intention that his grandson should have the bulk of his property. The said Powell was the legal adviser of the testator, the draftsman of the will, and procured the witnesses to its execution. TJpon the death of the testator -he produced it for probate and, so far as the record discloses, was the only person who ever read it or had possession of it.

The contestant, although not disputing that the testator was of disposing mind and memory, invokes the rule that, under the circumstances disclosed in this case, it was noti sufficient for the proponent to show merely the formalities which ordinarily suffice to justify probate, but that it was necessary to show affirmatively that the testator knew the contents of the will and that it expressed his intention. Ordinarily proof of the factum of the will is sufficient to meet the burden always cast upon the proponent of showing that the instrument offered was in fact the will of the testator, but the appellant in this case concedes that lie was required to show affirmatively that the testator had an intelligent knowledge of the contents of the will, and asserts that he has shown this bv the evidence of two witnesses, one of whom was a clerk in the office of said Powell, who testified that upon one occasion he heard the testator say: “ Charles has always been a good friend of mine (referring to said Powell); has always taken care of me, has given me legal advice, and when I die I will see that he is taken care of m my will;” and at another time; “Mr. Powell is looking after me now, but I will look after him. in my will.” The other witness testified to hearing the testator say that all his relatives wanted of him was to get his money; that they would not get it for he had made a will and left most of it to strangers.

The testator evidently knew that he was executing a will and thought he knew its contents, and we must assume that something was read to him; but there is no proof that the instrument offered was ever read to him, that he knew its contents, or that it expressed his intention, unless the evidence referred to constituted such proof.

The learned surrogate thought that, under the peculiar circumstances disclosed in this case, this evidence was not sufficient to meet the burden cast upon the proponent, and in this view we fully concur.

The decree should be affirmed, with costs.

Hirschberg, P. J., Bartlett and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Nassau county affirmed, with costs.