The Surrogate.
The decedent’s will is contested by Mrs. Smith, one of his daughters. The property is sworn at $5000. By the terms of the will five hundred dollars are given to each of the executors and to the decedent’s daughter Margaret, and the residue is divided equally among his six children. ‘ The shares of Margaret, Martha, and Catharine are given to the executors in trust to invest and pay them the interest,—and on their decease without issue the shares to go to the other children,—in case of their dying leaving issue, the issue to take the share of the parent.
This will is contested on the ground that the decedent was insane at the time of its execution. The counsel who prepared the instrument had three interviews with the decedent [217] at his residence, at the first of which he received his instructions, at the second submitted the draft, and at the third produced the will for execution. “ The instructions,” he says, “ were given in the afternoon, and the draft was taken the next day: a day or two after, the engrossed copy being prepared, was taken and executed.” At each of these interviews William Morrison, the decedent’s brother, and one of the executors, was present, and when the instructions were given, talked with the decedent “ about some parts of the will.” William Morrison, and John M. Morrison the other executor and a son of. the decedent, had had the management of the decedent’s business for some time, but for how long a period and in what manner I do not exactly understand, though it is stated in evidence that they had closed it up in May, 1852. The decedent had been in ill health several months before the will was executed, and after the decease of his wife, December 20, 1852, his malady assumed a more serious form. Mr. McAdam says: “ I received an intimation that he might not live long, but do not know from whom I got the idea.” “ He was complaining as to his health at that time. I understood he had been confined some time to the house.” As to the time the will was executed, it is left in some uncertainty. The counsel who drew the will states that “ the date was left blank in order to be filled in the day the will was executed. It was forgotten to fill up the blank.” On his first direct examination, he testified that the time of the execution was “ about the middle of January, 1853.” Mr. Orr, the other subscribing witness, also said : “ I think the will was executed about the middle of January.” This agreement as to the date would seem quite convincing were it not for other circumstances to which I shall hereafter advert, which are urged for the purpose of establishing a prior date.
The decedent was committed to the Lunatic Asylum at Bloomingdale on the 21st of January, 1853, on the -affidavits of Dr. Edward Gray and Dr. John Hart. Dr. Hart says he was introduced to the decedent on the 21st of January. “He was represented to me to be insane by Dr. Gray, his attend[218] ing physician.” “It was represented to me that he was pretty wily, and for that reason I was not introduced as a physician, hut simply as Hr. Hart.” The doctor conversed with the decedent, “found him exceedingly cautious,” and perceived no indication of insanity. Being “ completely foiled,” he withdrew .and “ conferred with his children to ascertain the leading points of his insanity—the direction in which his mind wandered.” He learned that “ he was in a state of delusion as to his children—that some of them were not his, but were palmed upon him as his, but he thought they were spurious;” with this information he returned and made another trial. He says: “I touched upon that point on my return, and he became excited, and demanded my right to question him on that subject.” The doctor finally gained his confidence, and he adds, “ he then gave me an indubitable evidence of his insanity, by denying part of his own children, stating that some of them were his, and some of them were not.” Dr. Hart came to the conclusion that he was insane on that point, and he also thought there were other indications of insanity besides. He says: “ The family wished him removed, and stated that he had been violent and attempted to injure himself, and that he was unsafe to be at large.” The effect of the delusion is thus stated by the doctor : “ those he regarded as his children he was fond of, and those he did not so regard he was not attached to. That was my general impression. He spoke simply of his children— some were his and some were not. Some he acknowledged and some he repudiated. He was very excited, particularly when I questioned him on his family.”
Dr. Gray, the decedent’s family physician, testified that he had been attending him some time previous to the 21st of January. His last visit on the decedent’s wife was December 20, when she died. He visited the decedent himself January 4th, at the request of his son John. He found him complaining of great debility, want of proper circulation, numbness in the fingers, and “ disagreeable feelings.” The doctor visited the decedent again at the request of his son John, on the sue[219] ceeding Saturday, the 8th of January. On his first examination he seems to have confounded this visit with the one made on the fourth, for he said: “ On the Saturday I first saw him he seemed to be melancholy, but nothing unusual, for he had been so for a length of time. I thought he seemed to be a little more melancholy. He seemed to be melancholy, which I attributed to the death of his wife. At the same time, as far as I can remember, he seemed to me to be perfectly rational.” On being further questioned on this point, the doctor said: “ The first I ever doubted his sanity was the Saturday of my first visit, if I did have one then.” “ 1 don’t know that I could affirm that he was of his usual sound mind on the Saturday of my first visit, nor can I affirm the contrary. I don’t think his mind was in as healthy a condition as it was before. He seemed to be more gloomy, dispirited, melancholy and depressed.” It does not transpire what occurred on the visit made on the 8th. On the morning of the 10th the doctor was informed the decedent had suddenly become violent during the night, had thrown a clock at his daughter, thrown up the window and shouted out into the street. He says, he was “calm enough,” but his daughter Margaret stated that he had denied she was his daughter, and Dr. Gray adds: “ If I remember well, I think he said something to me of the same kind—that she was not his daughter Margaret.” The doctor continued to visit him once or twice a day, and gave directions that he should be watched, to prevent violence. “The delusion in regard to his daughter Margaret continued on * * and also in regard to his son Joseph, he thought he was not his son Joseph, but some other person substituted for him.” “ I remember once his saying to Margaret when she came into his room, that she was not his daughter. For one day he seemed to me to be more insane than at other times. I judged this not by acts, but from the general expression of his countenance and manner. The expression of his countenance denoted that his intellect was as if obliterated for the time being. On the next day, or very shortly after, that was altogether gone—that expression of [220] countenance.” “ I think he was altogether of a nervous temperament, and I think his insanity was produced a good deal by his habits of living, also from loss of his wife. That I should think, would have a great influence upon a man of his mind at that time. He was also a man of great study, very superior intellect and depth of mind', so far as I could judge. From the history of his life, so far as I could gather, religious ideas were a great cause of his nervous excitement, and I think, though his reason may have convinced him that his views were correct and reasonable, that he was not altogether satisfied—that he was not happy.” The events of the night of the 9th of January do not rest upon the declarations of the decedent’s daughter. The noise appears to have attracted the attention of the police; an officer went into the house, and entered the decedent’s room. As he opened the door a pitcher was thrown at him, but he succeeded in mastering the maniac. This officer testifies that “at the same time there was a clock stood on a kind of desk or bureau, which fell down and was broken.” Another witness states “the old gentleman said they wanted to murder him—poison him —they were after his money.” It also appears that his daughter Margaret’s head was cut that night.
Dr. Brown, the Superintendent of the Asylum, testified that the decedent was confined there about eighteen months. His case was melancholia, a form of disease “ which does not ordinarily supervene with a violent paroxysm.” He says: “ I got a history of the case from some of the members of the family who accompanied the decedent to the Asylum. I think Mr. John M. Morrison was then present. Where there are several belonging to the family, my custom is to interrogate them all, with a view to arrive at the facts. I find that my memorandum of the case runs in this way :—“ That the decedent was supposed to have inherited no predisposition to insanity—that in the year 1842 he had an attack of mental depression corresponding somewhat to his then present state— that his present state of mind had existed about five months, and may have been noticed, perhaps, before—that it was sup[221] posed to arise from pecuniary and business embarrassments and anxieties, and losses which were comparatively trifling— that the despondency was aggravated by the death of his wife in December previous to his admission—that he had been very low-spirited with alternations of excitement and noise at night—that he disavowed the identity of his children— and that he was supposed to indulge suicidal propensities.”
The testimony to establish rationality is given by several witnesses. Mr. Purdie, saw him two or three times after his wife’s death and before he went to the asylum-, once he thinks soon after Hew-Year’s day. He observed nothing to excite suspicion, and did not think that he appeared “ to be in a state of despondency.” The Eev. Benjamin Evans called on the decedent, and conversed with him three times after his wife’s death. The first visit was probably on the 4th or 5th of Janu ary. The decedent took his usual part in the conversation, and manifested nothing to attract attention—nor any “ irrational despondency.” The next visit was after the 9th of January, and no “ irrationality” was betrayed. The next interview was on the 16th, and the result was the same. Besides this evidence, we have the opinions of the subscribing witnesses to the will, and of the two physicians, Drs. Gray and Kelley. Dr. Gray gave the following certificate:—
“ This certifies that I have been acquainted for some years past with Mr. John Morrison, sen., of 50^ Eldridge Street; during which time, I always considered Mr. Morrison to be in a sound state of mind and capable of directing his affairs. Mr. Morrison has suffered a great deal of sickness for the last two years, especially of a nervous character, yet everything duly considered, I give my opinion as above.
E. Gbay, M. D., Surgeon, &c.
Jcmuary 7th, 1853.”
The Doctor states, that John M. Morrison applied to him for this certificate several days before its date. He appears to have visited the decedent on the 4th of January, and I think [222] it probable the request to furnish such a certificate was the occasion of that call, although the doctor says, he does not remember what the object of the visit was. He handed the certificate to John on the 8th, and was then again asked by him to call on his father.
Dr. Kelley gave the following certificate:—
“ New York, January 6, 1853.
This is to certify that I, J. Wesley Kelley, Physician, of the city and county of Hew York, have carefully examined Mr. John Morrison, of 50-g- Eldridge Street, Hew York city, in relation to the state of his mind—do declare that the said John Morrison is of sound mind and intellect, and in full possession of all the faculties of reason and intelligence.
J. Wesley Kelley, Physician.”
Dr. Kelley testified, that John M. Morrison requested him to call on his father, October 19, 1852, to examine and prescribe for him: he did so, and made three visits subsequently, one of them at the request of John. He says, that on the 6th of January, the date of the above certificate, John asked him to go, but did not request him to examine into his father’s mental condition, and the subject of the certificate was not mentioned until afterwards; and yet the doctor “ examined him, and paid particular attention to the state of his mind.” He states, “ I came to examine the decedent’s state of mind, from an intimation I had from the daughter of the deceased, Margaret; she said her father at one time threw a pitcher at her head, or something of that kind. His age also induced me, .the inflammatory condition of his blood, also the quickness of his pulse.”
Upon these facts the question is, have the proponents established their case ? Here is a will, which gives one-fifth of the small estate to the executors, one, if not both of whom, was concerned in the transaction, and both of whom had been managers of the decedent’s affairs for some time previous. One of them, William Morrison, is present at every stage of [223] the affair; and though it does not appear that he interfered in the presence of the draftsman, yet the inquiry naturally arises, why was he there at all, if the decedent was entirely competent to transact his own business. William Morrison was present when the instructions were given, the next day when the draft was read, and again when the will was executed. William Morrison it was that requested Mr. Orr, the partner of John the other executor, to attend as a subscribing witness; and William Morrison it was, that took away the instrument after execution, and produced it to be read to the family after the decedent’s death. There is not a particle of proof that any of the decedent’s children knew a will had been executed, unless it might be John. It was John that directed Dr. Gray to visit his father, and requested a certificate as to the state of his mind: and it was at his instance Dr. Kelley made a similar visit and gave a similar certificate. Mr. McAdam’s receipt for the charge for drawing the will, acknowledges payment from “ William and John M. Morrison.”
That the decedent was insane on the 21st of January, when he was committed to the asylum, does not admit of a shadow of doubt. Least of all are these executors in a condition to question it, for they were consenting, if not participating in the act of placing him in that institution. ¡Nor was his a case of monomania only—for such symptoms as melancholy, nervousness, gloomy solitary habits, violence, and apprehension of being murdered and deprived of his property, establish very clearly general insanity. The events which occurred on the night of the 9th of January, picture a raving maniac. Very likely prior to that time, the condition of his mind had not been so plainly indicated, but if there had been no suspicions in regard to it, why did his son John particularly request the family physician to visit him, and why did he call in Dr. Kelley, and then obtain from each a certificate as to his father’s sanity % It is not a usual thing to procure such certificates, and I must therefore presume there was some ground for suspecting the decedent’s capacity. If so, why [224] was it not communicated to the examining physicians ? But no, they were both sent there separately, without an intimation of the kind, and then are requested for certificates without such z a special examination as a certificate of that character justly calls for. But by accident it seems that Dr. Kelley did examine the state of the decedent’s mind on the 6th of January, and was led to it “ from an intimation” from Margaret Morrison, who said “ her father had thrown a pitcher at her head, or something of that kind.” Mow this act of violence must have occurred on the 9th of January, or before the 6th. On the former hypothesis, the Doctor’s certificate is misdated—on the latter, an indication of insanity is evinced before the 6th. It detracts much from the examination made by these gentlemen that they were not specially directed to the features of the case. They were sent to visit as physicians, and were then called upon to certify to soundness of mind. That to find out the delusion existing in the decedent’s mind relative to-his children, it was necessary to possess the clue, is apparent from Dr. Hart’s testimony. He expresses the opinion that the decedent “ was sensible himself of his infirmity.” This is a common phenomenon attending mental derangement, and there are cases on record where the subject has for a length of time defied every effort to make him convict himself of irrationality, and yet, when the key was discovered, instantaneously disclosed his delusions. So here the decedent’s caution and craftiness were more than a match for the physician’s experience and shrewdness, until the secret spring was found and touched, and then he laid bare his mind. From the fact that there was no very great violence, Dr. Hart inferred the disease to be of a chronic character, and he stated in addition, that the decedent himself made some observations “ as to the length of time he had been under the impression in regard to the children.” The Doctor says, “ my impression is that he stated they had been several months or a year making these attempts upon him.” True, no reliance can be placed on this statement of an insane subject, but it is corroborated by the me[225] morandum of the case made by the superintendent of the asylum, as obtained from the members of the family. But to return to the certificates, their very existence suggests a doubt, and if doubts existed, the failure frankly to communicate them to the physicians raises a strong suspicion. As to the witnesses adduced to prove the rationality of the decedent, their attention was not directed to any special examination of the case. How little reliance can be placed upon casual observation, is illustrated by the fact that even after the ninth of January, and when the decedent was undoubtedly insane, the Eev. Mr. Evans spent some time in conversation with him, without discovering any symptoms of derangement. How let us look at the general features of the case. Here was an intelligent man of nervous temperament and great mental activity, whose mind had been considerably agitated on the subject of religion, who had withdrawn himself from his business, for several months been confined to his house, and addicted to habits of solitude. His wife dies, and grief is superadded to other disturbing causes. He denies his children as genuine, says that attempts are made to murder and poison him, breaks out into acts of open violence, assaults a daughter who, he alleged, was spurious, and yet, when examined by a physician sent for that purpose, is cunning enough to foil his every effort to detect insanity. A will is made veiy near the time of the development of these latter symptoms; the legatees of one fifth of the estate were privy to it; one of them was busy in sending medical gentlemen to visit the decedent without special instructions, for the purpose of procuring certificates of sanity; the other was present at every one of three interviews between the decedent and the lawyer in respect to the will; both of them had been the decedent’s agents and had possession of his estate. Ho sign appears of the other members of the family being made acquainted with the execution of the instrument. The decedent is soon after confined to an asylum, whence, after remaining eighteen months, he returns to live with the daughter who contests the will, and down to the time of his death, [226] it does not appear that he ever spoke of or subsequently recognized the existence of the will. Such circumstances seem to me quite sufficient ground for the rejection of this instrument. The proponents are bound to make out satisfactorily the soundness of the decedent’s mind, and I must say they have failed in convincing me. Their connection with the transaction, in conjunction with the fact that they were his agents and take legacies under the will, is enough to reverse the usual order of proof and to raise a presumption which they are bound to disprove. The date of the will being left blank, adds still another complication which has been the subject of comment, but I am not prepared to say that the precise date is of much importance. Both the subscribing witnesses in the first instance placed it, from recollection, about the middle of January; one of them, however, subsequently corrected his recollection by referring to a receipt produced for the fee for drawing the will, which bore date January 7, 1853, and which he thought was given two or three days after the will was executed. This would carry back the time of execution to the 4th or 5tli of January, and the giving of the instructions to the first and second of that month. That would not alter my view of the case. It is on the proponents to establish the validity of this will. The decedent’s abandonment of his business, his solitary habits, general state of melancholy and depression of spirits, the loss of his wife, the delusion as to his children, and the insane outbreaks on the 9th and the 21st of January, connected with the failure to make any special examination into his condition until he was sent to the asylum—the privity of the leading beneficiaries to the transaction, their fiduciary relations towards the decedent, and the failure of any proof of subsequent recognition of the existence of the will, after the decedent was discharged from the asylum—all these are circumstances which throw upon the proponents the necessity of positive, clear, and direct proof of the possession of a sound and disposing mind and memory by the decedent, when he signed this paper. The particular delusion with which his [227] mind was captivated, was cunningly concealed, and could only be exposed by touching upon the subject. This form of his malady may have been, and probably was, lurking in his mind before it reached full development. The obtaining of the certificates as to his condition on the 6th and 7th. of January, satisfies me that some reason already existed at that time for making such examination, and the nature of the examination without any previous special information or directions, could not certainly on the subject of the delusion as to his children, be considered at all satisfactory. I therefore think it is not a case of full proof. I have come to this conclusion on principles which do not require a resort to the declarations of the family at the time of the several occurrences under review, and it has not been necessary, therefore, to determine whether those declarations might properly be appealed to as part of the res gestee. Laying them aside entirely, the evidence in other respects is quite sufficient to show such a mental condition, and such circumstances attending the factum, or occurring about that period, as to require a degree of clearness of proof which the facts in this case do not afford. The instrument must consequently be denied probate.