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

121 A.D. 470, 106 N.Y.S. 111, 1907 N.Y. App. Div. LEXIS 1798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1907
• Status: Published

Opinion

Miller, J.:

This is an appeal from a decree' of the Surrogate’s Court of Kings county denying probate to the will of Edwin E. Thompson, who died September 14, 1904, leaving him surviving a widow and a son, two sisters and a brother. The will was made April 14, 1903, the first codicil July 16, 1903, and the second, codicil September 13, 1904.' So far as appears from the evidence, the only property of any value possessed by the testator was á life insurance policy-for $3,000 payable to his brother, John E. Thompson, as trustee. The will gives'the proceeds of said policy to said'John E. Thompson in trust to }iay the income of one-third to the widow, and of two-thirds to the son, principal to be' used if necessary to provide for their support, with remainders over to the survivor in case of the death of either.- The will also contains provisions giving all his personal property (the life insurance policy was evidently not included in this) and all his interest in the real estate of the copartnership, consisting of himself and his said brother, to his widow, and-another provision devising all other real estate to said brother in trust for his son,-remainder to the son absolutely upon his arriving at the age of twenty-five years, or, in the discretion of the trustee, at the age of twenty-one. The first codicil provides that in the event of the death of both widow and son tile-insurance moneys are given to the two .sisters in case they are single, otherwise to the said brother. The second codicil gives to' said brother the-testator’s-interest in certain real estate owned by said copartnership, and recites that upon his retiring from said copartnership his brother succeeded to his interest in all the copartnership property. It appears that said Copartnership ■ terminated January 1, 1904, and the recital"in said codicil is in accordance with the agreement of dissolution made January S3, 1004 The will appointed his. saidi brother executed!

I have only attempted to give siich a general survey, of the will .as is necessary to understand the, question, ¡presented on this.appeal. It is Undisputed that the testator, possessed" testamentary capacity-; •the due execution of the will was established, but the' contestant' although no evidence whatever was offered in that behalf, contends that the instrument offered for probate was not the will of the decedent, but was the result of undue influence practiced upon him by his ¡said brother, and the surrogate has'held, upon the authority of Marx v. McGlynn (88 N. Y. 358); that there was .presumption of undue influence which the proponent had. failed to overcome. Tim learned .surrogate seems also to have assumed that the testator could not understand the provisions -of the-will and that his brother, who had been admitted to practice law in the State of Iowa, had so drawn it as to conceal in a multitude of words its real purpose.. It is true that a few simple sentences would have sufficed to express the intention, of the' testator, but the undisputed evidence shows that the involved and unnecessary sentences in this will were as much the- work of "the-testator as. the draftsman. -The testator was not, as appears- to have -been assumed; -an ignorant, unlettered man.' It is undisputed that he had pursued part if .not all of .a college course, and while the surrogate appears to have been impressed by the belief that the testator could' not understand the effect of the legal terms and phrases used in the will, an inspection of that docúment shows it to have been.the Work not of a lawyer but of a'layman. The undisputed evidence is, .that said brother dictated, the will'to a stenographer in the presence of -the. testator from-notes prepared by the latter;, that each - paragraph ■ was discussed as dictated :and changed as suggested' by the testator; -that after the stenographic, notes were typewritten-, the testator took the-typewritten pages, kept them some.weeks and returned them with changes made in-his own handwriting,' whereupon the will was again dictated tó the stenographer by the Said brother in the presence of the testator'. The subscribing witnesses, three in number,, were well acquainted with the testator, arid they .'all testify-to facts surrounding the execution of the will- tending, to show that -it was the free and voluntary act-of the testator. The. mere fact that "the draftsman of-a wiji -is made executor or a trustee is not sufficient--to raise any presumption that.he practiced-undue influence, and neither the .case of Marx v. McGlynn (supra) nor any other within onr research, holds that -it is, and we do not deem it necessary to cite authority upon the proposition that no such presumption can arise' from a transaction so natural and customary.- It might seem to us unwise to tie up in a trust so small an estate, but we are not making this will, and the testator provided that the principal could be used. . Had there been a diversion of any portion of the testator’s estate from the natural objects of his bounty, a different question might arise. The second codicil might be open to question-if it did not appear without dispute that it really disposes of no interest which the testator had, because by the agreement of dissolution made some months before the execution of said codicil it was agreed that the brother should succeed to all of the copartnership property, and it is also uncontradicted that the testator had visited the real property. in question and had reported that in his opinion it was not worth the the taxes levied upon it. '' ^

The decree must be reversed. •

Hirschberg, P. J., Hooker, Gaynor and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Kings county reversed, and will admitted to probate, with costs to the appellant payable out. of the estate.