In re Nichols

• Decision Date: 15 December 1905
• Citation: 62 A. 610,78 Conn. 429
• Court: Connecticut Supreme Court
• Parties: In re NICHOLS.

62 A. 610

78 Conn. 429

In re NICHOLS.

Supreme Court of Errors of Connecticut.

Dec. 15, 1905.

Appeal from Superior Court, Fairfield County; Alberto T. Roraback, Judge.

Application by Susan W. Nichols for the probate of a will of Samuel W. Nichols, deceased. From a judgment of the superior court, reversing a decree of the probate court approving the will, the contestant appeals. Affirmed.

Stiles Judson, for appellant. Alfred S. Brown and Goodwin Stoddard, for appellee.

HALL, J. The testator, Samuel W. Nichols, died in 1903, 69 years of age, unmarried, leaving a will executed December 11, 1890, containing but two provisions: One giving all his property absolutely to his brother, Alexander, and his sister, Susan W. Nichols, in equal proportions, and upon the death of either before that of the testator, to the survivor; and the other appointing said devisees, respectively, executor and executrix of the will. Said Susan W. Nichols is the proponent of the will, and the appellant from the decree of the court of probate refusing to approve the will. The appellee contesting the will is Georgie B. Wentz, a niece of the testator. The testator and his brothers and sisters, Alexander, George, John, William Charles, Effingham, Susan W., and Maria, were the children of Samuel and Susan N. Nichols. Said Susan N. Nichols died in 1872, and by her will gave, upon the death of her husband, which occurred in 1880, to eight of her children, not including Charles, as tenants in common, two pieces of real estate in the city of New York, one known as the "Maiden Lane and Liberty Street property," hereafter referred to as the "Maiden Lane property," and the other as the "Cedar Street property"; to John, Susan W., and Maria, the homestead at Greenfield Hill in this state; and charged each of her six sons, who were such devisees, with the payment of $2,500, when they should become entitled to the income of the property devised to them, such sum of $15,000 to be held by George, Effingham, William, and Alexander in trust for the support of Charles during his life; and, upon his death, without issue, the unexpended residue to be distributed among his surviving brothers and sisters.

One of the brothers having conveyed his interest in the Maiden Lane and the Cedar Street properties to another of the brothers, the remaining seven tenants in common, in March, 1877, united in a conveyance of said properties, subject to the life estate of their father, and to said charge of $15,000, to George, Effingham, Alexander, Susan W., and Maria, as joint tenants, who, in 1882, conveyed the same properties through an intermediate conveyance to Effingham, Alexander and Susan W., as joint tenants, subject to said charge of $15,000; the consideration named in said deeds being a nominal sum, and other good and valuable consideration. In 1888, said three joint tenants conveyed the Cedar Street property to the Mutual Life Insurance Company of New York for the consideration of $80,000; and, in 1902, Susan W., who by the death of Alexander and Effingham had become the sole owner of the Maiden Lane property, sold it for $140,000. By conveyance from John and Maria, Susan W. became in 1885 the sole owner of the Greenfield Hill property. Charles died in November, 1892, in a retreat for the insane, and in the following month his six brothers and two sisters signed a document, which was duly recorded, acknowledging payment of their respective distributive shares of said $15,000, and releasing the trustees from liability respecting it.

The testator studied law and was admitted to the bar of New York state prior to 1858, in which year he became an inmate of an insane retreat, where he remained until 1869, when he was discharged, improved. Thereafter, until near the time of his death, he lived with the family at Greenfield Hill, consisting of Susan W., Alexander, and John, and during a considerable portion of the time, also of William and Effingham and their families. The premises upon which they lived consisted of about two acres of land with a house upon it, until in 1894, when 25 acres of adjoining land was purchased by Susan W. and a new house built upon it. The testator and his brother John continued, of their own choice, to occupy the old house, taking their meals in the new one at the table with the rest of the family. Respecting his manner of life and deportment during this time the trial court finds these facts: The testator presided at the table, was gentlemanly and refined in his deportment, affectionate in his treatment of his brothers and sisters, and neat in his person and attire, and in the care of his room. He occupied himself with gardening, transacted business intelligently, read the daily papers and current magazines, the books in his father's library, and periodicals relating to farming and gardening, and discussed intelligently and interestingly the daily events, and the subjects of which he had read. During the winter he spent much of his time in New York, at the home of one of his brothers, remaining there several months at a time, always going to and about the city unattended. The household bills were paid by Susan W., or by Effingham or Alexander, and the testator was never charged anything for his support. His resources consisted of a legacy from his father of $5,000, which he lost in speculative investments.

In 1890 the testator began to talk about receiving his share of his mother's estate, and on the 10th of December of that year went to the office of Effingham, who was a lawyer in New York, and had general charge of the family property and financial matters, and met him and Mr. Brown, the family attorney, by appointment, and discussed with them the amount which he should receive as his share. The Cedar Street property had then been sold for $80,000, and the Maiden Lane property was then valued at $60,000. There was an indebtedness from the testator to Effingham, which the latter proposed should be canceled, and that the testator should further receive certain railroad bonds which Effingham then had as the consideration of a release of his interest in his mother's estate. On the following day the testator stated the number of said bonds which he claimed, to which Effingham assented, and the testator thereupon executed a release to Effingham, Alexander, and Susan W., of all his interest in his mother's estate, for the stated consideration of $11,265, made up of the value of said bonds, and said indebtedness of the testator to Effingham, with interest to that date of $1,265. The testator thereafter received the income from these bonds until he loaned the certificate of deposit of the trust company which held them, which certificate he never again recovered. It did not appear that the testator received any other consideration for said deeds, and releases of his interest in his mother's estate or any other payment of his share of the rent of the Maiden Lane property amounting to $4,000 or $5,000 a year, than said sum of $11,205 and the care and support which he received from his brothers and sisters.

On said 11th of December, 1890, after signing said release, the testator went into a room apart from Effingham and duly executed the will in question, which was produced and read and explained to him by said Brown, and had been prepared in accordance with the previously expressed intention of the testator, and of the execution of which and of his settlement with Effingham he subsequently informed several members of his family. Thereafter the testator continued the same course of life without any apparent change until March, 1902, when the appellee Georgie B. Wentz applied to the court of probate for the appointment of a conservator over him, alleging in her petition that from mental derangement he had become incapable of managing his affairs. The court of probate denied the application, but, upon an appeal to the superior court a conservator was appointed in January, 1903. The appeal from that judgment to this court, entitled "Wehtz's Appeal from Probate," Is reported in 76 Conn. 405, 56 Atl. 625. After having testified in those proceedings upon being subpoenaed as a witness by this appellee, the testator failed mentally and physically until in May, 1903, it became impossible to take care of him at home, and he was removed to a sanitarium, where he died in the following September. He left little estate of value. John, Maria, and Susan W. are the only living children of said Samuel and Susan N. Nichols.

The said Georgie B. Wentz is a daughter of William Nichols by his first wife, who was divorced from him in 1870, and the appellee has since lived with her mother, and the relations of herself and her mother with the brothers and sisters of her father have not been friendly. The conservator so appointed upon her application, commenced an action against Susan W. Nichols, which was pending at the time of the testator's death, for an accounting, and for a restitution to the testator of his interest in said New York real estate. Upon these facts the trial court held that the testator, at the time he executed the will in question, possessed sufficient mental capacity to make said will; that he was not induced to make it by the undue influence of Effingham and Susan W. Nichols, as alleged in the appellee's reasons for contesting the will, and reserved the...