Tucker v. Field

5 Redf. 139

• Court: New York Surrogate's Court
• Decided: March 15, 1881
• Status: Published

Opinion

The Surrogate.

[After stating the testimony.]

The questions raised, and necessary for consideration, in this case, are:

1st. Whether the decedent at her death was domiciled in New York or in France.

2d. Whether the instrument propounded was executed by the decedent free from restraint.

The testimony which is claimed by contestant to establish a domicil in Paris, is substantially- the recitation in the will, stating that decedent was late of the State and city of New York, then residing in Paris :— the testimony of Mrs. Tucker, that decedent resided in Paris, and died there:—that of Mrs. Forbes, that decedent liad always spoken of remaining in Paris, as her home, never expected to leave, and intended to remain there the rest of her life ; that her exact words were that she never expected to return to America, on account of economy :—that of Mrs. Clark, that, in 1874, when she went to America, decedent told her to tell her friends there she should never see them again, as she would never be able to go to America; and that at another time she requested her to be sure to have her body sent to America when she died; that she liked Paris better than any other place ; that her family were all there, and her health was better ; that decedent went to Europe in 1865 or 1866; never left Paris, winter or summer, except August, 1870, to June, 1871; that she remained, in Paris from 1869 to her death in 1878, except her absence in consequence of the war:—that of Henrietta Meilhau, that she conversed with decedent when she went to Le Mans, which must have been about 1870, and said she would like to return to America to see her friends, but was too old, and said that she liked France and French people, and manners, and the climate agreed with her:— that of Mr. May, that he often conversed with decedent, about her former home: —that of Mr. Riggs, tha t he had often conversed with decedent about investments, and several times she remarked to him, that she never intended to return to this country, because she knew what it cost there, and did not know what it cost here.

The facts and circumstances which are claimed by proponent to establish the continuance of decedent’s domicil in New York are that'of the witness Mrs. Stone, that decedent spoke of her preference for America, and expressed her intention of returning:—that of Mathilde Flandin, that she had conversed with decedent upon the subject of remaining in France ; she told her several times, she hoped she would not die in Europe, and prayed that she might be able to go to her native country:—that of Mr. Haseltine, that, from 1870 to her death, he knew decedent, and that she frequently expressed a desire to return to America, and did not like the French people:—that of proponent, that decedent claimed tobe a citizen of the United States, as late as July 4th, two years before her death; repeatedly manifested a desire to return to America, and threatened every winter to do so, next spring; that she detested France, and made them promise to send her remains home ; and that about a year before her death, she purchased a trunk, had it marked with her initials, and " N. Y.; ” but she could not specify the times when decedent expressed her intention to return to the United States ; that she always lived in hotels or boarding-houses, but had remained at 4 rue Balzac since 1871:—that of Mr. Haseltine, on his second examination, that decedent declared her home to be America, and expressed a strong desire to return, and said she was only prevented from motives of economy, and she could not go at her advanced age, without being-accompanied by some member of her family; and on one occasion she expressed her determination of going there alone ; and when asked on cross-examination to specify dates, he stated only September or October, 1870, at Le. Mans :—that of Mr. Jackson, who testified that he saw decedent in Paris between the 17th. and 25th of July, 1877; that she expressed her desire to return to this country, and that her failure to do so was occasioned by her inability to cross the Atlantic, and she lived more economically abroad; and said it was her desire and intention to return, that New York was her home, that her friends were there, and that she would be buried there:— that of Hickson W. Field, her grandson, that he last saw her in August, 1872, in Paris, when she expressed her regret that he was going so soon ; that she would have been glad to have gone with him, as she did not wish to die in a foreign land, and she frequently expressed that wish, and said she thought she should come in the spring :—that of Monsell B; Field, who testified that he received letters from decedent from 1865, in which she spoke of New York as her home, and dread of dying abroad ; that he received one letter containing a list of certain articles, belonging to her, in New York, which he received in January, 1876, being the last communication from her, in which she spoke of New York as her home, and her dread of dying in a foreign land:—also a letter to Hickson Field, dated July 31st, 1870, in which she expressed the hope that, when she returned, she would find a little house, and have some of her grandchildren and their mother with her; that she would come home, but was afraid she would not be able to live in New York, it was so dear; which embraces all the testimony directly bear-ring upon that question, except certain references by Mr. Buckingham in two of his letters to her, referring to her expressed desire to return.

It is true that the witnesses upon this subject are not very definite in respect to times, when those, various expressions of desire or intention were made, and that such expressions, several years before her death, if followed by contrary expressions in her later years, would be consistent with her changed purpose, in respect to the abandonment of her domicil of origin in New York; but there seems to be, in the evidence of Mr. Haseltine and in the letter received by Monsell B. Field, in July, 1876, although the letter could not be produced, strong evidence that she regarded New York as her domicil, and had not intended to establish a domicil in Paris. But another circumstance which I think adds quite materially to that conclusion, is the fact that she went to the American legation and executed the will in strict conformity to the requirements of the statutes of New York ; and in a doubtful case, it seems to me that this circumstance is full of significance; that she recognized the fact that her estate was to be administered under that will, according to the laws of the State of New York ; otherwise, it must have been known that it was void for any purpose, because not executed in conformity to the laws of France.

I do not regard the recitation in the will, “ late of t the city and State of New York, in the United States of America, now residing in the city of Paris,” as con trolling, when taken in connection with the other facts of the case, because the term residing, in common parlance, is used, as signifying a sojourning or present stay.

In Dupuy v. Wurtz (53 N. Y., 556), it was held that the execution of a will of personal property depended upon the law of the place where the testator was domiciled at the time of his death, and that for the purpose of succession every person must have a domicil, and but one, and that the domicil of origin would be presumed to continue until a new one was acquired ; and that, to effect a change' of domicil, there must not only be change of residence, but the intention to abandon the former domicil, and acquire another as a sole domicil; hence, under the authority of that case, as well as others, it is apparent that the party alleging a change of the domicil of origin holds the burden of proof, and must give satisfactory evidence of a change, and I am of the opinion that the evidence, in this case, is not such as should satisfy the court of an intention to abandon the domicil of origin. But if, according to our law, the expressions of intention indicate a purpose to abandon the domicil of origin, and reside in Paris, with the intention oil remaining there permanently, it seems to me an insuperable obstacle to the establishment of a domicil in Paris, found in section 13 of chapter 1 of the Code Napoleon, which reads that a foreigner, who shall have been allowed, by the authority of the emperor, to establish his domicil .in Prance, shall enjoy therein all civil rights, so long as he shall continue to reside there; using the terms “domicil” and “residence,” as of different signification ; and while I might feel inclined to concur with the learned counsel for the contestant, in his interpretation of the signification of those provisions, unaided by evidence of judicial determination by the courts of France, I am constrained to hold that the testimony of Edouard Clunet, a lawyer of Paris, sufficiently shows that the highest court of France has put- a judicial construction upon this section, which holds, substantially, that without such authority the decedent could not become domiciled in France ; and if I correctly understand his testimony, this was in a case much stronger than the present, where the question of the administration of decedent’s estate was involved, especially as his testimony is in no way controverted.

I am also confirmed in this opinion by the case of Dupuy v. Wurtz, above cited, for there the learned judge, after an elaborate review of all the decisions of the courts of Prance upon that subject, reached the same conclusion as to the result of the final adjudication of the court of cassation. I am, therefore, of the opinion that decedent died domiciled in the city of New York, and not in Paris; and that in that respect the will was properly executed, conformably to our law, and valid.

I had occasion to consider a kindred question in Von Hoffman v. Ward (4 Redf., 244).

The next and final question upon which I am called to pass, is whether the evidence warrants the finding that the will in question was executed under restraint, or undue influence, and, bearing upon this question, it is important to understand the mental condition of the decedent at the time of its execution.

It is, perhaps, safe to presume that a lady eighty years of age did not enjoy the same mental vigor that she did in early life, but the preponderance of the testimony, taken in conjunction with the evidence of the subscribing witnesses, in the absence of that of Mr. Washburne, and the attorney who drew the instrument, and who must have known her mental condition, establishes, to my mind, the fact that decedent was of vigorous intellect and clear understanding, and a woman of rather remarkable independent opinions and will.

Without further reference to the testimony upon that subject, it is sufficient to say that it clearly shows an interested motive on the part of the proponent to procure a change of the former will, which equally divided decedent’s estate between proponent and contestant, her daughters, and it is equally clear that her declarations and letters, and the somewhat exuberant advocacy of a change, in behalf of his mother by Julian Field, and the conversations between her and decedent upon the subject, indicate the capability on her part to influence decedent in that change. It also appears that she had ample opportunities; being in constant intercourse with her mother, to exercise that influence, but it is proper to say that a very material change in the relative pecuniary condition of the sisters occurred subsequent to the execution of the former will, and that even the contestant recognized that fact, and the propriety of her mother doing so; also that the various facts and arguments which she urged upon her mother, and endeavored to procure Mr. Cisco and Mr. Buckingham to present to her without success, appear to have been substantially true, and hence it cannot be found from the evidence that any untrue representations were made by her, to her mother, in that regard.

In Deas v. Wandell (59 N. Y., 636), it was held that the mere fact that a will gave all decedent’s property to persons not related to the testator did not raise the presumption of want of mental capacity or undue .influence.

In Seguine v. Seguine (3 Keyes, 663), it was held that the doctrine of an inofficious document had no place in our law ; that if a testator seems to have had testamentary capacity, when under no undue influence, he may dispose of Ms property as he pleases, however absurd such disposition may be.

In Cudney v. Cudney (68 N. Y., 148), it was held that, to invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred, and that it was not sufficient to show that the party benefited by a will had the motive and opportunity to exert such influence, but that there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by fraud, or other improper means, that the instrument is not really the will of the testator. See Booth v. Kitchen (3 Redf., 52); Mairs v. Freeman (Id., 181); La Bau v. Vanderbilt (Id., 384).

• It appears that decedent and proponent conversed upon the subject of the injustice of the will made and left in New York, in respect to the changed condition of the daughters, and that the decedent recognized and admitted the fact; and the testimony of Mary Stone, taken in behalf of the contestant, shows that in 1876, in a conversation, she asked witness as to the advisability of changing her will, and stated as a reason that the circumstances of her daughters had altered since her first will, and that she desired to change it, and give proponent more; observing that contestant had an income and proponent none.

The decedent, in her will, in the residuary clause, which divides the remainder of her property equally between her daughters, states that they are equally dear to her, and any apparent disparity in the amounts provided for them arose from the fact that Mrs. Tucker had theretofore received from the estate of her late father more largely than Mrs. Field; and from the fact that Mrs. Tucker was and is possessed of property yielding an income adequate to her maintenance and support, and Mrs. Field would be left destitute, but for the provisions made, for her benefit.

The reasons thus stated seem to concur with those expressed to Mrs. Stone, and if they were suggested to her by proponent, they seem to have been reasons which commended themselves to decedent, and there is nothing in this case which shows that the facts stated by proponent and by decedent in her will, were not true.

Redfield, in his Treatise on Wills, vol. 1, p. 535, says : “We do not suppose that if the testator is capable of making a valid will, when left to himself, his testamentary act is to be rendered nugatory by the honest importunity of a wife, to obtain only what she deems her fair share of his estate, and which only prevails to that extent; although it could be shown that, without such importunity, the testator would have given her much less. And the same may be said of other relations fairly entitled to the testator’s bounty. And although it may be justly said that good faith is no fair criterion of justice and propriety in the measure of the importunity of solicitors for testamentary bounty, yet if the importunity is only to the extent of justice and propriety, its results, to that extent, can scarcely be condemned, because their author would gladly have carried them beyond that limit.”

In other words, the considerations addressed to the intelligence and good feeling of a testator, which leave him still to his independent choice, or which influence his better judgment, cannot be regarded as undue, to the extent of affecting the validity of the testamentary act; and this seems to be fully sustained by the court of appeals, in Children’s Aid Society v. Loveridge (70 N. Y., 387). Judge Miller, at page 394, uses this language: “It (the influence) must not be the prompting of affection ; the desire of gratifying the wishes of another ; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices ; but a coercion produced by importunity, or by a silent, resistless power which a strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.” And in La Bau v. Vanderbilt (3 Redf., 384), it was held that influence or importunity which would avoid a will, must be such as to deprive the testator, at the time, of the free exercise of his will, whereby the instrument became the will of another mind, rather than that of the testator, and such undue influence must be proved, and will not be inferred from opportunity and interest,—citing several authorities.

I have not deemed it necessary to consider the extraordinary anxiety in respect to the proposed change of decedent’s will manifested by the proponent, or the officious advocacy of its justice by Julian Field, except so far as they seem to bear upon the question of the actual exercise of undue influence upon the decedent, because they are matters of taste and propriety, as to which it is possible, though not probable, that there may be a difference of opinion.

I am, of the opinion that the relations of the parties, and the terms of the will, are not such as to raise any presumption, of undue influence, nor any suspicion which has not been satisfactorily explained by the proponent, and that, therefore, no presumption can be indulged in, against the good faith of the transaction. I am also of the opinion that the testimony, when properly weighed, is not sufficient to justify the conclusion that there was any undue influence exercised by proponent upon the mind of the testatrix, which overcame her independent will in the making of the instrument, and that for those reasons, the paper offered should be admitted to probate, as executed conformably to the laws of this State, by decedent, when she was of sound and disposing mind, free from restraint, and domiciled in this State at her decease.

Decreed accordingly.