33 N.Y. 619, American Seamen's Friend Soc. v. Hopper

Citation:33 N.Y. 619
Party Name:THE AMERICAN SEAMEN'S FRIEND SOCIETY and others, Appellants, v. HESTER HOPPER and others, Respondents.
Case Date:December 01, 1865
Court:New York Court of Appeals

Page 619

33 N.Y. 619



HESTER HOPPER and others, Respondents.

New York Court of Appeal

December 1, 1865

Page 620


A. W. Bradford and B. J. Blankman, for the appellants.

J. T. Brady, for the respondents.


Charles Hopper, the validity of whose alleged will is the subject of controversy on this appeal, died at his residence in Mott street, in the city of New York, on the 1st day of November, 1861, at the age of about sixty-seven years. He had no descendants living, but he left surviving him his widow, Hester, and a sister, Elizabeth Wiley, a widow, and six nephews and a neice, the children of a deceased brother, Thomas Hopper. Besides these, he left other relatives, not entitled to succeed to his estate upon intestacy, namely, three sons and a daughter of his sister Elizabeth Wiley, and a grandnephew, a grandson of his said sister. The widow of the deceased brother was also living. These relatives, for the most part, resided in the city of New York or in Brooklyn, though three of the nephews and the grandnephew lived in other States of the Union. He left an estate, the greater part of which was in buildings and lots in the cities of New York and Brooklyn, valued at between eighty and one hundred thousand dollars. By his will, executed when he was very ill, four days before his death, he appointed Chauncey Shaffer, a counselor-at-law, and Abraham M. Fanning, a real estate agent, his executors; and he constituted them trustees of all his estate not specifically devised. He gave to his wife (in addition to her dower), besides his beds, bedding, and household furniture and her

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clothing, a house and lot in Brooklyn, on condition that she should release her dower in another house and lot in New York, which, in the subsequent part of his will, he devised to his nephew John R. Hopper and Mary Hopper his wife; but if she should elect to receive the rents of the house in Brooklyn and an annuity of $1,400 per annum, both for life, in lieu of dower in all his estate, he gave her the option to do so. He gave to Mrs. Colton, a married neice, the daughter of his sister, Mrs. Wiley, and her children, one dollar each; to the grandnephew, Charles Wiley, living at Janesville, Wisconsin, $300 per annum, until he should come of age, for his support and education. He devised to his said nephew, John R. Hopper and Mary his wife, a house and lot situated on the 10th avenue in New York, in fee, and to each of their children who should be living at his death, $100 each; "to each and every of the children of my brother and sisters living at the time of my decease, and who are not hereinbefore provided for, the sum of one dollar each, whether the parents of said children be living or dead at the time of my decease"; to Mary Russell, his nurse, the sum of two hundred dollars. All the residue of his property, real and personal, he bequeathed and devised to his executors, or to the one who should qualify, in trust as to the personal, to convert it into money, with all reasonable dispatch, and as to the real, to sell it within a reasonable time after the expiration of the existing leases upon it, and to divide the proceeds equally between the two charitable societies above mentioned as appellants; in the case of the Seamen's Society, to be applied to the benefit of shipwrecked and other destitute seamen, and in the other case, to the comfortable residence, support, employment, medical and other necessary cares of aged and infirm females.

Charles Hopper was either a native of the city of New York, or came there at an early age, and commenced life as a butcher in the Franklin market, which business he pursued for many years, and until he had accumulated a considerable estate; but he retired from business several years before his death, and thereafter had no employment except the management

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of his property. He had but little education; and he was quite illiterate, as is apparent from all the testimony and some specimens of his writing which were given in evidence. In early life he married the wife who survived him, with whom he lived on ordinarily amicable terms, down to about five or six years before his death. They had one child, a daughter, who lived to be married, but who died, without leaving issue, before his troubles with his wife and relations appear to have commenced. As to his character, disposition and habits, prior to the change in them which it is alleged occurred, the evidence shows that he was an active and energetic man of business, fond of gain and laboring hard to acquire property, and investing it with reasonable judgment and discretion. He was brusque in his address, positive, willful and headstrong in his purposes and opinions, and impatient of contradiction. He was coarse and profane in his conversation, and much addicted to the use of ardent spirits, though he was not often, until the latter part of his life, so far intoxicated as to affect his capacity for business. If his declarations may be trusted, he was a disbeliever in revealed religion; and he had taken up a very strong prejudice against ministers and clergymen of all religious denominations--believing, or pretending to believe, that they embraced the profession for selfish purposes, and employed it for base ends, especially in regard to the female members of their congregations. I do not mean to say that all these disagreeable traits in his character were proved by any one witness, or are shown to have been manifested at all times; but they are the fair result of all the voluminous testimony in the case. Prior to the year 1855 or 1856, there is no pretense that he was not fully competent to make a testamentary disposition of his property. Even after that period, and down to the time of his death, whenever his state of health enabled him to be abroad, he continued to attend to the making of small purchases for the family use; and it was not usually apparent to those who dealt with him in such matters, that his mind was otherwise than entirely sane. During this period, the business of collecting his rents and investing his moneys was

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committed to persons employed as agents by him, and under his directions. It appears that about the year 1856, or somewhat earlier, he commenced to have apprehensions of his wife and his relatives, and suspected them of a design to break up his family--exhibiting on those subjects a good deal of excitement, and talking about them constantly. According to the testimony of Mr. Van Antwerp, a lawyer, who was a good deal employed by him in his legal business, and was, with his partner, for several years his only counsel, this disposition of mind continued to increase, getting, as he expressed it, worse and worse, and more excited, all the time; and he was constantly making new allegations against several persons of a conspiracy to cause his death. In the summer of 1859, he was arrested by policemen, by order of the mayor, charged with threatening to assault his wife; and he gave bail to keep the peace for six months, Mr. Van Antwerp being his surety. About this time his wife left his house, alleging that he had committed violence upon her person; and she soon afterwards commenced an action for a separation, on the allegation of threats of cruel treatment, which made it, as she alleged, unsafe for her to live with him. They lived separate ever afterwards. She appears to have had no kindred of her own blood, and no family connections, except the relations of her husband. Two of his nephews, John R. Hopper and Captain William L. Wiley, took part with her, and gave her some assistance in the legal proceedings; and the sympathy of all the others seems to have been in the same direction. This caused a high state of indignation on his part; and from this time until his death he believed, or affected to believe, that they were conspiring together, and with other persons, to destroy his domestic happiness, and in some secret manner to take his life.

The question which arises upon the evidence is this: Whether his conduct and declarations, from the commencement of the suit for a separation, embracing, perhaps, a year or two prior to that period, down to his decease, were simply the manifestations of an excitable, coarse, ill-regulated and suspicious mind, made more intense by his habits of intemperance,

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or were the consequences, on the other hand, of an insane delusion, which led him to regard as certain truths, and actually to believe in the existence, on the part of his wife and his relatives, of conduct and intentions substantially such as he imputed to them. I am perfectly satisfied that there was no foundation in fact for the gross imputations upon his wife, or the charge against his relatives, all or any of them, of a design upon his life, or an intention to do him any bodily injury; and that the idea of a conspiracy to injure him, otherwise than by promoting the suit which his wife was prosecuting, was either feigned or purely imaginary. If feigned, it is not enough to defeat the will. If he did not really believe what he alleged to be their criminal conduct and intentions--if he uttered the injurious imputations by way of personal abuse, in order to gratify a depraved and malicious disposition, or for the purpose of defaming or otherwise injuring them in the estimation of their acquaintances and the community, any or all of these dispositions and motives, though most unworthy and reprehensible, would fall short of that degree of mental perversion which would enable the courts to pronounce him non compos mentis and incapable of disposing of his property by will. On questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable...

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