Boyle's Will, In re

• Decision Date: 21 October 1955
• Parties: In the Matter of the Probate of the Last WILL and Testament of Mary E. BOYLE, Deceased. Surrogate's Court, Broome County
• Court: New York Surrogate Court

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.

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 parties named in the first will, was duly instituted 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 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 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 statements made by these witnesses were developed. In order to avoid getting into a detailed discussion of the testimony of these witnesses, suffice it to say that, from their testimony as a whole, it appears that they had adopted the strategy of firmly resolving in advance that, once having stated that the two vital questions were asked of the alleged testatrix and her affirmative nod given in response thereto, they would 'forget' everything else. It was only by very persistent effort that any information whatever regarding any of the surrounding circumstances or details was obtained by any of counsel for the various objectants.

Although, in order to comply with the required formalities of execution of a last will and testament, no stereotyped or ritualistic process has been legislatively prescribed, yet courts are very strict in requiring a substantially full and complete compliance with all of the various formalities provided by Section 21 of the Decedent Estate Law. Matter of Will of Booth, 127 N.Y. 109, 116, 27 N.E. 826, 827, 12 %.l.r.a. 452; m/atter of Will of Mackay, 110 N.Y. 611, 615, 18 N.E. 433, 434, 1 L.R.A. 491. The policy of our courts requiring strict observance of these formalities, and rightly so, is based upon their salutary effect in tending to prevent the alleged execution of testamentary instruments by persons who are mentally incompetent, or as a result of undue influence or fraud. These considerations are greatly accentuated in a case such as this wherein, at the time of the alleged execution, the decedent was a person of greatly impaired mental ability, and especially so when all of the surrounding circumstances support the inference that a very strong, if not undue, influence had been exerted upon the alleged testatrix by the principal beneficiary of the alleged will.

As stated by Professor David,

'A strong circumstance in favor of the instrument is found in proof that the attesting witnesses were dissociated from the charge of intervention or undue influence, are respectably or reputable persons, persons of high standing in the community, members of the bar for many years, or public officers.'

See David, New York Law of Wills, Vol. 1, Sec. 218, and authorities there cited. In this connection, see also the first paragraph of Section 144, Surrogate's Court Act, providing that:

'Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will, and the validity of its execution.'

In the present case, the proponent's demonstration by evidence is considerably short of being satisfactory and adequate, and objectants' challenge in relation to a proper observance and fulfillment of formalities of execution must, therefore, be sustained.

We pass now to a consideration of the issue of mental competency. In support of his burden of proof, six disinterested...