In re Mondorf's Will

• Decision Date: 02 October 1888
• Citation: 18 N.E. 256,110 N.Y. 450
• Parties: In re MONDORF'S WILL.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 450

18 N.E. 256

In re MONDORF'S WILL.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from supreme court, general term, Third department.

This was a proceeding to probate the will of Jacob Mondorf, deceased, begun in the surrogate's court of Kings county, and appealed to the general term. From a judgment affirming the decision of the surrogate, Elizabeth Mondorf, contestant, appeals.

Hugo Hirsh, for appellant.

John H. Kemble, for respondent.

EARL, J.

Jacob Mondorf died in the city of Brooklyn on the 22d day of July, 1885, having made two wills, one dated May 26, 1868, and the other dated January 14, 1885. By the former will he gave all his estate to his wife, and by the latter he gave it all to Mrs. Juliana Schaumburg, and revoked all former wills. He left no issue. He and his wife became estranged, and in January, 1878, they separated, and thereafter lived apart. After their separation he lived in the family of Mrs. Schaumburg, who was a widow with several children. One of the executors named in the later will presented the same for probate, and the testator's widow contested the probate, and presented the first will for probate, and certain of his heirs contested the probate of both wills. The surrogate refused probate to the first will, and admitted the later one to probate. There can be no question that the will of 1885 was executed with all the formalities prescribed by law. It was drawn by an attorney of the testator's own selection, and he gave the directions for drawing it. After it was drawn it was read to him, and he pronounced it right. It was again read in his presence, including the full attestation clause, to the witnesses. He declared it to be his will in the presence of the witnesses, and they subscribed it at his request, in his presence, and in the presence of each other. In April afterwards he called at the office of the attorney, and paid him for drawing the will. There can be no doubt of the entire competency of the testator at the time to make a will. It is clear that he was in the entire possession of his mental faculties, that he fully comprehended the effect of the will, and that it expressed his deliberate purpose, formed a long time before its execution.

The will is mainly assailed on the ground of undue influence. There is not the least evidence that Mrs. Schaumburg ever attempted to influence him in the disposition of his property. But undue influence is sought to be inferred from his relations with her, and the fact that he gave her, a stranger in blood, all his estate. The evidence tends to show that he had at some time made a division of his property with his wife, and that she had more property than he had. He complained of her refusal to live with him, and of her bad treatment of him. He boarded and lived in the family of Mrs. Schaumburg for several years, and was kindly cared for by her when sick and feeble, needing attention, and for such kindness he frequently...