27 N.Y. 9, Peck v. Cary

Citation:27 N.Y. 9
Party Name:PECK v. CARY.
Case Date:June 01, 1863
Court:New York Court of Appeals

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27 N.Y. 9




New York Court of Appeal

June 1, 1863

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[Copyrighted Material Omitted]

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H. A. Cram, for the appellant.

John Graham, for the respondent.


The appellant is not concluded or affected by the decision of the probate court in Connecticut. The transmission of the title to real estate situated in this State, either by testament, by conveyance inter vivos, or by intestacy, is regulated by our own laws. Whether the judgments of the court of probate in Connecticut are confined to personalty, or assume to determine upon devises of real property, they have no effect upon the title of real estate here. (Story's Confl. of Laws, § § 474, 591; Hosford v. Nichols, 1 Paige, 220, 226.) The rule is different as to personal property, the title to which is governed by the domicil of the owner (Parsons v. Lyman, 20 N.Y. 103); and hence the respondent's counsel relies upon the circumstance, incidentally disclosed by the evidence, that the appellant is a debtor of the estate and resides in the city of New York, and that the debt is assets here; and he refers to a provision of our statutes, authorizing the granting of letters testamentary, with the will annexed, upon the production of a will which has been proved in a foreign state or country. (Laws, 1830, p. 389, § 68.) But no application was made to the surrogate under this provision. The executor sought to prove the will with a view of affecting the title to the real estate. His petition did not suggest the existence of personal assets in this State, but relied, for the purpose of showing jurisdiction in the surrogate, upon the deceased having died seized of real estate in the city of New York. The case must, therefore, be examined without reference to the Connecticut probate.

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The first inquiry relates to the mental condition and capacity of the alleged testator. He was about thirty years of age at the time of signing the will, and had received a good English education. By the death of his father, and the remarriage of his mother, and her removal from the State while he was quite young, he seems to have been left without the influence of domestic restraint, and, having inherited a handsome property, was enabled to procure indulgences, the abuse of which rapidly undermined his habits, his health and moral character. For some time before making the will he had become excessively addicted to the use of spirituous liquors; had experienced several attacks of the peculiar mania arising from such habits; had more than once attempted to put an end to his existence by means of poisonous drugs; and he eventually committed suicide. Several of the witnesses stated, with some exaggeration probably, that he was scarcely ever sober. He indulged, moreover, in habits of licentiousness, not less destructive certainly to his moral character. The statement of A. B. Peckham, one of the witnesses with whom he boarded a part of the season in which the will was executed, seems to present the fair result of the evidence upon this topic. "His habits, " he said, "were generally intemperate; when so, he was quarrelsome and disagreeable. When getting over his sprees, he was melancholy and low-spirited. "It cannot, however, be maintained that he was either constantly intoxicated, or suffering from the resulting reaction; for the same witness states that while at his house he was sober and straight for three or four weeks, and was then bright and rational. To the same purpose are several letters written in 1856, by his brother, the appellant, then a merchant at Worcester, Massachusetts. He was anxious to have Robert, the testator, become a partner in his business by investing his money and taking part in the actual management. In one of them he says: "He is now fairly at work in the store, conducting himself as well as we could ask, and wishing to feel an immediate interest in the business. " He had, however, relapsed, before the making of the will, for Mr. Morgan, the person who drew it, and was named the executor,

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and who had, moreover, been his guardian during his minority, had, on account of his bad habits and consequent imprudence, been appointed his Overseer under the laws of Connecticut. The statute on that subject authorizes such an appointment to be made by the selectmen of the town, where they find any person, by idleness, gaming, intemperance, debauchery, mismanagement, or bad husbandry, likely to spend and waste his estate, to be reduced to want and to become chargeable to the town. The person appointed to be his Overseer is to advise, direct and order him in the management of his business, and it is declared that no person under the appointment of an overseer shall be capable of making a contract without his consent. This appointment, in the case of the testator, existed at the time of making the will and continued until his death; not, however, without an effort on his part to remove it, on the ground of his alleged reformation, in which some of his friends concurred. For instance, on the first day of February, in the year in which the will was executed, we find the appellant writing to Morgan--in consequence, no doubt, of the testator's importunities--that he was not just then well situated to speak correctly of his deserts, but that he had not recently heard any bad reports of him, and was inclined to think he intended to do well in future. He adds: "You must use your best judgment in the matter, and so far as I am concerned have my warranty in remitting the disagreeable penalty of Robert's past bad conduct. " Among the exhibits there is a long letter from the testator to Morgan, written from New York, August 8th, 1858. The writer had, by the advice of his friends, engaged as a hand on board of a sea-going vessel which was about to sail from that port on a foreign voyage, and was, as he writes, immediately put to very hard labor in the preparations for setting out, which proved too severe for his badly impaired constitution, and he had left the ship. The expressed object of the letter was to obtain a supply of money to enable him to go to Savannah, where he hoped to find employment. It is not material to my purpose whether the statements of the letter were sincere, or whether its object was by plausible suggestions to procure a

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fresh supply of money from his overseer. It is very circumstantial, perfectly perspicuous, and evinces a habit of thought, and completeness and accuracy of expression, scarcely to be expected in one not accustomed to writing, and quite remarkable for a person whose general course of conduct was such as his is represented to have been. It fully corroborates the statement of several of the witnesses, who represent him as possessed of more than average capacity when not under the influence of intemperance.

I am quite satisfied, from a careful perusal of the voluminous testimony, of which the above is a brief outline, that the testator's mental faculties were not so far impaired as to render him incompetent to make a will or do any legal act, when not under the immediate influence of intoxication.

In examining the testimony as to his condition at the precise time of signing the instrument propounded, it is necessary, in the first place, to determine whether the date affixed to it is the true one. There is evidence as to his state, relating specifically both to the 23d of June, 1858, the date which it bears, and to the 23d July following, which the appellant maintains to be the day on which it was actually executed. I am satisfied that it was executed on the last mentioned day. The will commences thus: "I, Robert L. Peck, of the town of Norwich, & c., having it in contemplation to go a voyage to sea, " & c. Meach, one of the attesting witnesses, swears that when he was called upon to subscribe, Morgan, the draftsman, asked him to come and witness Robert's will, stating that he was going to sea. Clapp, another attesting witness, says that Morgan, at that time, remarked that Robert was about making his will; that he was going to sea and wished to make his will before he went; and Mr. Morgan himself, when asked how he came to write the instrument, answered: "I was requested by Robert L. Peck. He was calculating to go on a voyage to sea. " It is thus made entirely clear that the immediate occasion of making the will was a contemplated sea voyage. The appellant, who was examined as a witness on his own behalf, testified that he resided in Worcester during that summer, and that on the 22d

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July he received a dispatch from the testator to the effect that he intended to leave Norwich to go to sea the next day, and wished the witness to come and bid him goodbye and see him off; that he went accordingly, arriving at Norwich in the evening, and remained there through the next day. He did not see the testator set off, but ascertained, by inquiry, that he left Norwich for New York on that day, the 23d July; that late in the afternoon of the same day he saw Morgan at his place of business, the Quinebaug Bank, who showed him a paper which he said was Robert's will, which he said he had written that afternoon. This witness is corroborated as to the day on which he came from Worcester to Norwich by two witnesses, Bynner and Bentley, the last of whom had a memorandum of the date, made at the time. Their testimony will presently be referred to for another purpose. Clapp, the attesting witness before mentioned, could not state whether the time of the execution was June or July, but he was able to recollect that at a later hour of the same day on which the will was signed he saw the testator on a car of the railroad train on the way towards New York. The letters which are made exhibits confirm this view. There is a short one from Morgan to Robert, dated the 24th June, the day...

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