In re Newcomb's Estate

• Citation: 192 N.Y. 238,84 N.E. 950
• Parties: In re NEWCOMB'S ESTATE.
• Decision Date: 19 May 1908
• Court: New York Court of Appeals

192 N.Y. 238

84 N.E. 950

In re NEWCOMB'S ESTATE.

Court of Appeals of New York.

May 19, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Application for the revocation of ancillary letters testamentary granted in the estate of Josephine Louise Newcomb, deceased. From an order of the Appellate Division (122 App. Div. 920,107 N. Y. Supp. 1139), affirming a decree of the Surrogate's Court dismissing the application, the petitioners appeal. Affirmed.

Josephine Louise Newcomb died in the city of New York on the 7th of April, 1901, at the age of 85, leaving an estate worth more than $2,000,000 and an instrument purporting to be her holographic will, executed at the city of New Orleans on the 12th of May, 1898, of which the material part is as follows:

‘First. I have resided of late years in different places, but have made the city of New Orleans my permanent home, because I here witness and enjoy the growth of the ‘H. Sophie Newcomb Memorial College,’ a department of the Tulane University of Louisiana which I have founded, and has been named in honor of the memory of my beloved daughter. I have implicit confidence that the ‘Administrators of the Tulane Educational Fund’ will continue to use and apply the benefactions and property I have bestowed and may give for the present and future development of this department of the University known as the H. Sophie Newcomb Memorial College which engrosses my thoughts and purposes, and is endeared to me by such hallowed associations.

‘Second. I have no forced heirs, I owe no debts; and I hereby revoke all wills of a date anterior to this. I hereby make the following special legacies and bequests: To the Greenwood Cemetery a corporation organized and existing under and by virtue of chapter 298 [p. 297] of the Laws of the State of New York passed in 1838, the sum of two thousand ($2,000) dollars for the care of lots numbered 17,036 and 17,037 and it is my desire, that at my death, my remains may be placed with the loved ones there at rest. To Alice Bowman of New Orleans Louisiana five thousand ($5,000) dollars. To William Robertson of Charleston South Carolina one thousand ($1,000) dollars.

‘Third. With the exception of the special legacies and bequests herein above stated and made, I hereby give and bequeath to the ‘Administrators of the Tulane Educational Fund’ of New Orleans, the whole of the property, real, personal and mixed of which I am now possessed or which I may leave at the time of my death, and to that end and purpose I do hereby name and constitute the said ‘Administrators of the Tulane Educational Fund’ to be my universal legatee. I appoint my cousin and friend Joseph A. Hincks and my friend B. V. B. Dixon to be executors giving them seizin and detainer of my estate and requiring no bond from them.

‘Thus wholly have I written, dated and signed this my last will and testament at New Orleans Louisiana this 12th day of May, 1898.’

On the 8th of April, 1901, the day after Mrs. Newcomb died, this instrument was admitted to probate as her last will and testament in the civil district court for the parish of Orleans in the state of Louisiana, without notice to her heirs at law or next of kin, and letters testamentary were issued to the executors named therein, both of whom promptly qualified. On the 13th of April, 1901, upon their petition, ancillary letters testamentary were issued to said executors by the Surrogate's Court of the county of New York, without notice to any one; but the Comptroller of the State voluntarily appeared and, waiving notice, consented that ancillary letters should be issued. The executors forthwith removed the bulk of the assets belonging to the estate from the state of New York to the state of Louisiana. About one year later, or on the 14th of April 1902, the heirs at law and next of kin of Mrs. Newcomb, being nephews and nieces and grand nephews and nieces, four of whom resided in Louisville, Ky., and two in New Orleans, upon their petition setting forth facts tending to show that the decedent resided in the city of New York at the date of her death, that she was not of sound mind, that she was subject to undue influence when she signed said instrument, and that a holographic will cannot be set aside on account of undue influence in the state of Louisiana, procured an order from the Surrogate's Court of the county of New York requiring the executors to show cause why the ancillary letters testamentary should not be revoked and vacated. A citation was issued, and in due course of procedure an answer was filed by one of the executors, raising, among other issues, the question whether Mrs. Newcomb, at the time of her death, resided and had her domicile in the city of New York or in the city of New Orleans. On the 16th of July, 1902, Robert E. Deyo, Esq., was appointed referee to hear the evidence relating to said issue and report the same with his opinion. A long trial followed, and much evidence was taken, both oral and written, which appears in four large printed volumes now before the court. Between 700 and 800 requests to find were presented to the referee and the surrogate, all of which were duly passed upon, and exceptions were filed by the respective parties to such findings as they considered unwarranted by the evidence or by law. The referee, in his report dated March 27, 1905, found: ‘That the residence or domicile of Josephine Louise Newcomb, deceased, at the time of her death, was in the city of New Orleans, in the state of Louisiana.’ The surrogate confirmed all the findings of fact and law made by the referee, adopted his opinion, and also found specifically: ‘That Josephine Louise Newcomb, the decedent, was, prior to and at all times since the death of her husband and daughter down to the time of her own death, in all respects, competent to select, change, acquire, and establish a legal and valid domicile or residence; that previously to the time of her death the said Josephine Louise Newcomb had voluntarily, and without compulsion or restraint exercised upon her, selected and adopted the city of New Orleans, in the state of Louisiana, as her domicile and place of permanent abode and residence, and continued to there reside and have her domicile and permanent place of residence and abode down to and at the time of her death.’ He dismissed the application for the revocation of ancillary letters testamentary, and a decree was entered accordingly. On appeal by the petitioners to the Appellate Division the decree was unanimously affirmed, and thereupon they appealed to this court.Austen G. Fox, Philip A. Rollins, and F. A. Gaynor, for appellants.

George F. Canfield and James McConnell, for respondent.

VANN, J. (after stating the facts as above).

While the rule of unanimous affirmance prevents us from reviewing the evidence, a more complete statement of the leading facts found by the surrogate, in passing upon the requests presented by the parties, is necessary in order to properly discuss the rulings relating to evidence which it is our duty to review. The decedent, Josephine Louise Newcomb, was born on the 3d of October, 1816, in the city of Baltimore, where her parents resided. She was of French extraction on the part of her father, and English on the part of her mother. She was partially educated in Baltimore, where she resided until the death of her mother in 1831 or 1837; both evidence and findings leaving the year in doubt. She then removed to New Orleans, La., where she finished her education and resided with Mrs. Henderson, her only sister, until her marriage there in 1845 to Warren Newcomb, a native of Massachusetts. After their marriage she and her husband went to Louisville, Ky., where he acquired a substantial estate, and where they resided until 1862, when, owing to the confusion caused by the Civil War, they removed to the city of New York and resided at the Hoffman House until the death of Mr. Newcomb in 1866. He left, him surviving, Mrs. Josephine Louise Newcomb, his widow, and a daughter named Sophie, then about 10 years of age. All his property, valued at about $500,000, passed by will to his widow and daughter. Mrs. Newcomb never had any child other than Sophie, except a son who lived but a short time. After the death of her husband, she continued to reside with her daughter in the city of New York, living at hotels and boarding houses until December 16, 1870, when Sophie died, and her mother, inheriting from her, thereupon became possessed of the entire estate left by Mr. Newcomb.

The death of her daughter exerted a powerful influence upon the hopes and ambitions of Mrs. Newcomb's life. Shortly after that event she divided $150,000, which was from one-fifth to one-fourth of all her property at that time, among her nearest relatives, ancestors of the petitioners, and formed the plan of devoting the rest of her estate to some kind of a memorial to her daughter. The memorial idea, vague at first, took more definite shape in 1886, when she founded the H. Sophie Newcomb Memorial College, an unincorporated branch of Tulane University in the city of New Orleans, and before her death in 1901 she had given about $1,000,000 to the university for the benefit of that college. Her fortune had increased, however, through the judicious management of her agents in New York, so that she left upwards of $2,000,000 when she died. After the death of her daughter, she continued to reside in the city of New York, not keeping house, but boarding and spending the warm weather in various summer resorts in different states. In 1871 she visited her sister in New Orleans for about one month, but after that she was not in the state of Louisiana again until 1892, when she made another visit of a few weeks, living at a boarding house. She renewed her visit in 1893 for seven weeks, and in 1894 for nine weeks, staying with different friends. In 1895 she made a will by which she left substantially all...