Nexsen v. Nexsen

2 Keyes 229

• Court: New York Court of Appeals
• Decided: June 15, 1865
• Status: Published

Opinions

Davies, J.

Sarah Kexsen, the testatrix, was a single woman, and previous to April, 1852, had resided in a house in Brooklyn with her sister Catharine. In this month her sister died, and she soon thereafter removed to the house of her brother, William Kexsen, in whose family she continued to reside until her death, in January, 1862. She was possessed of personal estate of the valué of about $15,000, and some real estate, the value of which does not appear; and, the respondent who was her only brother of the full blood living at the time, she went to reside with him. The appellants were a brother of the half blood, and children of a deceased brother. The will in controversy was made in July, 1852, by which she gave a legacy to her half brother, George W. Hexsen, of $1,500, and a legacy of $500 each to her three neices, daughters of a deceased brother of the full blood. All the rest and residue of her estate, both real and personal, she gave to her brother, the respondent, and constituted him the sole executor of her will.

On the 8th of March, 1855, a codicil wa's added to the will, declaring that, in case the respondent should die before she did, then the devise and bequest in the will to him she gave to his three children therein named, share and share alike; and, in case the respondent should not be living at. the time of her death, then she constituted and appointed his two sons executors in his place and stead.

The testatrix was in the eighty-ninth year of her age when she died, and the respondent was over eighty years of age. He had acted as her agent in the management of her property for nearly thirty years before her death. The testimony shows that she possessed ordinary intelligence, could read and write and mixed in society as much as ordinarily by a person of her advanced age. It is abundantly established by the testimony that, at the time of the execution of the will, she was competent to make it, and the simplicity of its provisions indicate that it could be easily comprehended by a person of even feeble intellect. The disposition of her estate is such as might naturally be anticipated.

The deceased had two brothers of the full blood, William Hexsen, the respondent, and Walter Hexsen, deceased, who left three daughters, named as legatees in the will, and three sons, and also a brother of the half blood, George W. Hexsen. He, with Walter Hexsen and Oscar Hexsen, sons of Walter Hexsen, deceased, are the appellants, and her next of kin, and the contestants before the surrogate. Catharine Hexsen, her sister, with whom she lived and kept house, died in April, 1852,' and immediately after her decease the testatrix broke up their establishment and went to reside with her brother "William. Catharine gave all her estate, real and personal, to her sister, the testatrix.

By the will offered for probate, the testatrix gave to her brother George a legacy of $1,500, and $500 each to her three neices, the daughters of her deceased brother, Walter Nexsen, and the residue to her brother, the respondent. She therefore gave to her half brother, and to the daughters of her deceased brother, $3,000, and the residue to the brother, with whom she undoubtedly expected to spend the residue of her life, and upon whose- kindness and care she relied. Her age at this time would naturally lead, her to infer that she would be dependent on him and his family, for those attentions and that care so imperatively demanded by her infirmities and advanced age. It was therefore quite in the ordinary course of things, that, soon after her removal to her brother’s house, and settlement there, she should make such a disposition of her estate as this will contains, nothing appears to indicate any reason or ground for supposing that her half brother, or the sons of the deceased brother, had any peculiar claims upon her bounty, or to share in her estate. The facts disclosed by the testimony would lead an impartial mind to the conclusion that the disposition she made of her estate was peculiarly wise and just to all concerned, and the one most calculated to promote her own happiness and comfort for the residue of her life.. Nothing appears to warrant an inference, that her just expectations in this regard were not fulfilled, or that the recipient of her bounty failed in the discharge of any duty to her.

The testimony in the case leaves no reasonable doubt on the mind that at the date of the execution of the will the testatrix was of sound and disposing mind and memory.

The opinions of the witnesses from which a contrary inference might be drawn are unsustained by any facts; nay, "the' whole current of the testimony and the facts developed lead to the conclusion that these opinions „ have no substantial basis. Opinions of witnesses can only be entitled to weight, and be of any value, when accompanied with the facts upon which they are based, and, .having the facts, it is for the jury or the tribunal called upon to scan and consider the testimony, to ascertain if the conclusions and opinions of the witnesses are sustained by the facts detailed by them, and from which they have drawn their conclusions. Opinions without facts are of but little importance. (Delafield v. Parish, 25 N. Y., 37; Clarke v. Sawyer, 3 Sand. Ch., 351; Cilley v. Cilley, 34 Maine, 162; De Witt v. Barley, 17 N. Y., 340.) It remains to be considered whether the due execution of this will was proved. And, in this connection, it is first to be considered whether the contents of the paper signed by the testatrix were understood and known by her. It is undeniable that the will was drawn by the respondent, the principal' beneficiary under it. He testifies that the substance of the will had been a matter of conversation between him and the deceased before it was made. This was stated on cross-examination by the contestants. On his direct examination by the proponent, he was asked to state that conversation. This was objected to by the contestants, and the objection was sustained by the surrogate. It is true that the maxim qui se seripsit haere dem is applicable to the case under consideration, and the rule of law arising from such a state of facts and such rule imposes on a party thus situated peculiar obligations and duties. It casts'upon him, in addition to the ordinary burden of a proponent of a will, .the additional one of establishing it by testimony of a more clear and satisfactory character. The courts demand, in such a case, satisfactory proof that the party executing the will clearly understood and fully intended to make that disposition of his property which the. instrument purports, to direct. (Delafield v. Parish, supra, and cases cited on page 36.)

It would, therefore, have been more satisfactory to my mind if it had appeared, unequivocally, that the ■ will had . been read over to the testatrix before execution, or that she had read it herself. The latter may, I think, fairly be inferred from all the circumstances. It appears that she could write and read writing. That for several years after the execution of this will, an.d nearly up to the time of her death, she was in the practice of writing and reading, and that she was of sufficient capacity to transact business. It appears from the testimony of one of the attesting witnesses (the other being absent from the State, and his handwriting having been proven), that those witnesses were requested by the respondent to proceed to his house, and there witness the execution of the will. That they found the deceased in her room at her brother’s house, with the will drawn, and all ready for execution, except placing thereon a seal. That this was done by the witness, and the same was then signed by the deceased, and the attesting witnesses then signed as such in her presence and in the presence of each other. It certainly would have been more satisfactory, as already observed, if it had distinctly appeared that the will had been read over to the deceased, and it had affirmatively appeared that she knew its contents. But I think it may be inferred from all the circumstances disclosed that she was acquainted with the contents of the paper she signed. It was spoken of as a will in her presence, and such she declared it to be. It can hardly be supposed that a person of her education and intelligence would have executed a paper of that character without knowing its contents. Again, she retained the possession of the paper until within a year or two before her death, when she delivered it to her brother to keep as a valuable and important paper. She must have known what it contained thus to have characterized it, and the care with which she preserved it, also strengthens this idea. In addition, her attention was drawn to this paper about three years after its execution, and about seven before her death. This was on the occasion when the codicil was drawn and executed. She must have parted with the possession of the will to enable Hr. Hammond to draw the codicil, and it may reasonably be inferred that it was perused by her "at this time, in connection with the codicil. I arrive at the conclusion, therefore, that the provisions of this will were clearly understood by the testatrix, and the testimony is abundant to show that the disposition made of her property was that which she freely intended.

The due execution of the will was sufficiently established. All the statute formalities were properly and fully observed. The testimony of Judge Johnson as to these formalities is clear and sufficiently distinct to answer the requirements of the statutory provisions, and are more full and ample than this court ■ thought adequate in Coffin v. Coffin (23 N. Y., 9). It was said in that case, that1 all the statute requires is, that the act of publication and the act of requesting the witnesses to sign shall both -be performed. These acts are distinct in their nature or quality, but their performance may be joint or connected. If a testator should say to the witnesses, “ I desire you to attest this instrument as my last will and testament,” the language would import not only a request, but a clear publication of the will. In the present case, the two acts of publication and request were separate and distinct. The will was first signed by the testatrix in the presence of the two witnesses. She was then asked by one of them if she acknowledged and declared it to be her last will and testament, to which she replied that she did. She was then asked by the same witness if she wanted them, that is, Hammond and himself, then present, to sign the same as witnesses, to which she also replied that she did; and the two witnesses then signed the will as such, in her presence and in the presence of each other. It is difficult to conceive of a more literal and complete compliance with the formalities of the statute touching the execution of wills than was here observed. It follows that the surrogate properly admitted the will to probate.

It is a matter of no particular moment to inquire whether the testatrix had testamentary capacity at the time of the execution of the codicil. The respondent having survived the testatrix, it became wholly inoperative, as it was not designed to have any effect unless upon the contingency of his dying before the testatrix. It was a natural and obvious disposition of the property to give it to the children of her brother if he should die before herself. They occupied the same house with her, and were daily ministering to her wants and comforts. It was, therefore, reasonable and proper that she should desire to secure her estate to them, in the event of its not being received by their father. And it was eminently discreet in her, considering the advanced age of her brother, and the uncertainty of his surviving her, that she should make provision for another executor or executors in case of his decease, before her death. And no inference of undue control can be predicated of the fact that, in such a contingency, she designated his two sons as her executors. One of them, it appears, lived in an adjoining house to that occupied by her, and frequently transacted business for her.

But even if her mind was feeble at the time of the execution of this codicil, and undue influence had been exerted to procure it, these circumstances would not necessarily show or establish want of testamentary capacity at the time of the execution of the will, in July, ”1852, or that that instrument was procured by the exercise of undue influence or control. In the case of Coffin v. Coffin (supra), the circumstance that the person who prepared the will was appointed one of the executors, and was also a legatee, was urged as a consideration why the court should infer fraud and undue influence in procuring the execution of the will. It was justly said, in that case, that facts of this kind may and do often very justly excite the suspicion of courts, when fraud and undue influence are alleged. But it is not a rule or principle in the law of testaments, that the draftsman of a will cannot be an executor, or cannot take a benefit under it. There seems nothing unnatural, therefore, in the selection of the respondent as the executor, but, on the contrary, he seems peculiarly to be the most proper and obvious person to be selected for the performance of the duties incident to that office. The same remark might apply with equal force to his being selected by the testatrix as the beneficiary of the .bulk of her estate. The'considerations most likely to have influenced her mind in making such a disposition, have already been adverted to. They are obvious and natural, and such as would be most likely to influence and govern persons in the disposition of their estate. We' see no facts disclosed in the testimony, or any force in the considerations urged upon us, which would authorize us to reverse the conclusions of fact to which the surrogate arrived in this case, in his judgment admitting this will to probate, and we must, therefore, affirm the judgment of the Supreme Court, which, in our opinion, correctly affirmed that of the surrogate of Kings county.