Petrie v. Petrie

• Decision Date: 02 June 1891
• Citation: 27 N.E. 958,126 N.Y. 683
• Parties: PETRIE v. PETRIE et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 683

27 N.E. 958

PETRIE

v.PETRIE et al.

Court of Appeals of New York.

June 2, 1891.

Appeal from supreme court, general term, fourth department.

Edwin J. Brown, for appellants.

C. D. Prescott, for respondent.

O'BRIEN, J.

The purpose of this action was to partition certain real estate of which Nicholas H. Petrie died seised May 23, 1885. The plaintiff is his daughter, and the defendants are his other children and heirs at law. The complaint proceeds upon the assumption that the father died intestate, but Morgan Petrie, the son, in his answer, set up a will alleged to have been executed and published by his father on the 30th of April, 1877, and admitted to probate on the 9th of December, 1884, by which all the land was devised to him, subject to a small legacy to the plaintiff, and two other small legacies to her sister and mother. The validity of this will was the only controverted question involved in the trial. Upon the application of the plaintiff, the court directed that two specific issues or questions of fact, which were stated in writing, should be submitted to the jury. These questions were whether the deceased was, at the time it was claimed that the paper purporting to be his will was executed, mentally competent to make a will; and, secondly, whether the paper, so purporting to be his will, was made through fraud, duress, or undue influence. The jury answered the first question in the negative, and the latter in the affirmative; thus determining both questions in favor of the plaintiff, and against the validity of the will. The deceased, at the time of the execution of the instrument, was 81 years of age. His acts and declarations, and numerous facts and circumstances, occurring at or about the time the paper was signed, were given in evidence, indicating a weak and enfeebled condition of the mind. The impression which his acts and declarations had made upon his neighbors and acquaintances was also shown. The proof upon this issue was conflicting, but of such a character as to require the trial court to submit it to the jury. The rules by which the jury should weigh the evidence and determine the fact were stated by the learned trial judge in a very fair and impartial charge, and we are concluded by the finding. The finding that the dceased was incapable of making a will rendered the further question, whether there was fraud, duress, or undue influence, immaterial, though that question, as we have seen, was also determined in plaintiff's favor. The plaintiff was sworn as a witness in her own behalf, and, without any objection, testified as follows: ‘Have heard father and Morgan talking together when I had no personal connection with the transaction. Have heard them talking often during the ten years previous to father's death. Heard them talking frequently prior to 1877, for the last two or three years before that. * * * I remember a time when Morgan and father went to Oneida together. They had not been there together, to my knowledge, for a long time. I hadn't seen them start off together for as much as five or six years. It was in the morning when they started. Nearly 9 o'clock. It was in the spring. Before they started I heard conversation between Morgan and father, and in which I had no part. * * * They were in the barn. I went to the cistern to get some water. I was only a short distance from the barn. I couldn't say how many rods. The barn is very near the house. Question. Were you in sight of them, so that they saw...