Boyle's Will, In re

CourtNew York Surrogate Court
Citation208 Misc. 942,145 N.Y.S.2d 386
Decision Date21 October 1955
PartiesIn the Matter of the Probate of the Last WILL and Testament of Mary E. BOYLE, Deceased. Surrogate's Court, Broome County

Page 386

145 N.Y.S.2d 386
208 Misc. 942
In the Matter of the Probate of the Last WILL and Testament
of Mary E. BOYLE, Deceased.
Surrogate's Court, Broome County.
Oct. 21, 1955.

Page 389

[208 Misc. 945] DeWitt & Schneeberg, Boris Schneeberg, Binghamton, Matthew J. Vitanza, Binghamton, of counsel, for proponent.

Riley & Fischette, Binghamton, Anthony Fischette, Binghamton, of counsel, for Anthony Fischette, objectant.

Deyo, Turnbull, Turner & Normile, Binghamton, Robert L. Sweeney, Binghamton, of counsel, for St. Mary's Roman Catholic Orphan Asylum of Binghamton, objectant.

Amend & Amend, New York City, Myles B. Amend, New York City, of counsel, for Christian Brothers Institute, objectant.

Charles v. Scanlan, New York City, Myles B. Amend, New York City, of counsel, for House of Calvary, objectant.

John H. Weidner, Binghamton, special guardian for Rosalie D'Angelo, infant, respondent.

PAGE, Surrogate.

In this contested proceeding for probate, we necessarily must give consideration to each of two wills purporting to have been executed by the decedent above named. For convenience in reference, these will be hereinafter designated as 'the first will' and 'the second will'.

The first will appears to have been executed by the decedent on May 29, 1951. This will provides a specific bequest of a 'dinner ring' and seven general bequests totaling $8,500. Three of these, accounting for $5,000, are to religious organizations. In this first will, the deceased, a widow, devised and bequeathed her residuary estate to her only child, the proponent herein, Joseph J. Boyle, and nominated as executor Anthony Fischette, an attorney, of Binghamton, New York, who had drafted this will.

The second will, purporting to have been executed on the 24th day of June, 1952, in legal effect, is identical with the first will excepting that it omits the specific and seven general bequests contained in the first will, leaving deceased's son as the sole beneficiary thereunder, and nominating him as the executor thereof. The deceased died, a resident of Broome County, New York, on the 11th day of February, 1953.

Upon the petition of Anthony Fischette, a proceeding for the probate of the first will was duly instituted on the 5th day of March, 1953. While this proceeding remained pending in this court, upon the petition of said Joseph Boyle, a proceeding for the probate of the second will, in which were cited all [208 Misc. 946] parties named in the first will, was duly instituted

Page 390

in this court. The present decision, of course, deals only with the issues involved in the above mentioned second proceeding.

All of the religious organizations beneficially named in the first will and some of the individuals therein named as legatees have appeared herein. Each of the parties respondent who have appeared herein have filed the usual broadside set of objections to the probate of the second will, thereby raising issues to be determined herein as to, (1) a sufficient compliance with the requirements of Section 21 of the Decedent Estate Law; (2) as to the volition nd mental competency of the alleged testatrix, and (3) as to undue influence having been exerted upon her by the proponent herein.

While living at No. 13 Chapman Street, Binghamton, New York, on February 23, 1952, the decedent was stricken with a severe apoplectic hemorrhage. She was removed to Our Lady of Lourdes Memorial Hospital, of Binghamton, New York, where she remained in critical condition for a period of about five weeks. Upon her having become considerably better, her son had her removed to a nursing home. This institution was and is conducted by Mrs. Ruth A. Heylmum, assisted by her daughter, Frances E. Johnson. They served as the subscribing witnesses to the second will.

Certain facts in relation to the condition and situation of the testatrix while she was a patient at the Heylmun Nursing Home, where the second will is alleged to have been executed, are clearly shown by the evidence. She was completely paralyzed on her right side but had muscular control of her left arm and hand and otherwise on her left side. Apparently her eyesight and hearing remained unimpaired. Her power of speech was limited to gutteral sounds which witnesses who heard her interpreted as meaning 'hello', 'Yes', 'no', and 'goodbye'. Her responses to questions addressed to her were mostly by motions of her head affirmatively or negatively as the case might be, but no incident recited in the testimony of her ever having responded negatively is recalled. She had several friends who visited her more or less frequently. Reference will be made hereinafter to their testimony relative to her responses to questions and other acts which they, at the time, regarded as rational.

In considering the evidence herein, in its bearing upon the various objections to probate, first attention will be given to the question as to whether there was a sufficient compliance with all the requirements of Section 21, Decedent Estate [208 Misc. 947] Law. But only publication and requesting the witnesses are questioned.

In relation to the alleged execution of the propounded instrument, it appears that the proponent visited the Heylmun Nursing Home on or about the 24th day of June, 1952. The first either of the subscribing witnesses knew anything about serving as such witnesses was when the proponent, with this second will, which, having by-passed attorneys in Binghamton with whom his mother had been will acquainted, he had had

Page 391

drafted by a lawyer in New York City, put in an appearance at the nursing home and stated to Frances Johnson that his mother wished to make a will and asked her if she and her mother would serve as witnesses. Mrs. Johnson then asked her mother if she would be willing to do this. They entered the hospital room where Mrs. Boyle occupied a bed over which was a table. The alleged will was on this table and it appeared to the witness, Mrs. Johnson, that the decedent 'had been reading' it. According to her testimony, the proponent then left the room. She, thereupon, asked Mrs. Boyle if the instrument was her will and did she want Mrs. Johnson and her mother to be witnesses to it. According to this witness' testimony, Mrs. Boyle nodded her head affirmatively. Mrs. Johnson then obtained a pen which she brought in contact with the left hand of the decedent and proceeded to make an X-mark on the signature line at the end of the document here in question. Mrs. Heylmun then appropriately wrote the words 'Mary E. Boyle her mark' about the X-mark. Although it is not entirely clear from the testimony, it would seem that the proponent then reappeared in the room and took possession of the alleged will. This whole transaction has the appearance of having been very hurriedly and carelessly consummated.

These subscribing witnesses were subjected to an extensive cross-examination both before and at the trial of this proceeding. To say the least, their testimony was evasive and their general attitude toward examining counsel hostile. Also, several remarkable inconsistences between the various...

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8 practice notes
  • Merrill v. Ralston
    • United States
    • New York Supreme Court Appellate Division
    • July 28, 1983
    ...as of the date of the proceedings (Matter of Clayton v. Clement, supra; Lazarus v. Metropolitan El Ry. Co., supra; Matter of Boyle, 208 Misc. 942, 951, 145 N.Y.S.2d The admissibility of blood test evidence is a rule of evidence (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.......
  • Jane L. v. Rodney B.
    • United States
    • New York Family Court
    • May 1, 1981
    ...2 To same effect, see Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476. See also Matter of Boyle, 208 Misc. 942, 145 N.Y.S.2d 386, 394 (Surrog.Ct., Bronx Cnty.): a statute establishing a rule "of evidence or procedural law, a matter of adjective law,"......
  • Aldrich v. City of New York
    • United States
    • United States State Supreme Court (New York)
    • October 25, 1955
    ...in Page 744 sub-division 7 of section 20 of the General City Law where it provided, in the part pertaining to streets, that every city is [208 Misc. 942] empowered 'To lay out, establish, construct, maintain, operate, alter and discontinue streets * * * and upon the discontinuance thereof t......
  • Rabsatt v. Estate of Savain, D.C. Civ. App. No. 93-67
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • February 15, 1995
    ...if he came to sign the Will." Id. at 162. 6 See In re Inglis' Will, 3 Misc.2d 980, 156 N.Y.S.2d 731 (Surr.Ct.1956); In re Boyle's Will, 208 Misc. 942, 145 N.Y.S.2d 386 (Surr.Ct.1955); In re Felson's Will, 206 Misc. 988, 135 N.Y.S.2d 737 7 See id. (so holding in a case where the will was typ......
  • Request a trial to view additional results
8 cases
  • Merrill v. Ralston
    • United States
    • New York Supreme Court Appellate Division
    • July 28, 1983
    ...as of the date of the proceedings (Matter of Clayton v. Clement, supra; Lazarus v. Metropolitan El Ry. Co., supra; Matter of Boyle, 208 Misc. 942, 951, 145 N.Y.S.2d The admissibility of blood test evidence is a rule of evidence (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.......
  • Jane L. v. Rodney B.
    • United States
    • New York Family Court
    • May 1, 1981
    ...2 To same effect, see Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476. See also Matter of Boyle, 208 Misc. 942, 145 N.Y.S.2d 386, 394 (Surrog.Ct., Bronx Cnty.): a statute establishing a rule "of evidence or procedural law, a matter of adjective law,"......
  • Aldrich v. City of New York
    • United States
    • United States State Supreme Court (New York)
    • October 25, 1955
    ...in Page 744 sub-division 7 of section 20 of the General City Law where it provided, in the part pertaining to streets, that every city is [208 Misc. 942] empowered 'To lay out, establish, construct, maintain, operate, alter and discontinue streets * * * and upon the discontinuance thereof t......
  • Rabsatt v. Estate of Savain, D.C. Civ. App. No. 93-67
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • February 15, 1995
    ...if he came to sign the Will." Id. at 162. 6 See In re Inglis' Will, 3 Misc.2d 980, 156 N.Y.S.2d 731 (Surr.Ct.1956); In re Boyle's Will, 208 Misc. 942, 145 N.Y.S.2d 386 (Surr.Ct.1955); In re Felson's Will, 206 Misc. 988, 135 N.Y.S.2d 737 7 See id. (so holding in a case where the will was typ......
  • Request a trial to view additional results

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