Roche v. Nason

• Decision Date: 08 May 1906
• Citation: 77 N.E. 1007,185 N.Y. 128
• Parties: ROCHE v. NASON et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 128

77 N.E. 1007

ROCHE

v.NASON et al.

Court of Appeals of New York.

May 8, 1906.

Appeal from Supreme Court, Appellate Division, Third Department.

Suit by William J. Roche, individually and as executor of the will of Henry T. Nason, deceased, against Paul Ford Nason and others. From a judgment of the Appellate Division (93 N. Y. Supp. 565,105 App. Div. 256), affirming a judgment in favor of plaintiff, Paul Ford Nason and certain other defendants appeal. Affirmed.

J. K. Long and Andrew P. McKean, for appellants.

Edward W. Douglas, for respondent Roche.

Edgar L. Fursman, for respondent Samaritan Hospital.

Charles E. Patterson, for respondent Lombard.

WILLARD BARTLETT, J.

This is an action by an executor under section 2,653a of the Code of Civil Procedure to establish the validity of the probate of a will. The testator was Henry T. Nason, of Troy, who died on the 30th day of March, 1903, under circumstances which indicated that he must have taken his own life. At the time of his death the testator was county judge of Rensselaer county, having just entered upon his second term of service in that office, to which he was re-elected at the general election in November, 1902. The instruments propounded for probate and proved in the Surrogate's Court were a will executed on November 12, 1902, and a codicil executed on March 28, 1903. By the will all the property of the testator was devised and bequeathed to his mother, provided that she should be alive at the time of his decease. There were gifts over, to take effect only in the event that his mother should not be alive at the time of his death, to Mrs. Isabella K. Lombard, a friend of the testator, to his physician, to his former law partner, to his clerk, to several servants, and to the Samaritan Hospital in Troy, with a bequest and devise of the balance of the estate to the testator's grandfather, Martin I. Townsend. The will further provided for an increase in the amount of the specific legacies in case neither the testator's mother nor his said grandfather should survive him. The testator's mother was appointed executrix in case she should survive him, otherwise he nominated William J. Roche, of Troy, to be the sole executor. The testator's mother died intermediate the execution of the will and the codicil. The codicil modified the will only to the extent of making several specific gifts of personal property to certain corporations and persons mentioned therein.

Judge Nason was in his thirty-eighth year at the time of his death. He had been a member of the bar for about 14 years, and had practiced his profession until he became county judge of Rensselaer county. He was a man of education and refinement, and appears to have been more than usually kind and gentle in his bearing and demeanor. No suggestion is made that he had not administered the duties of his office well and acceptably to the legal rpofession and to the public. There does not appear to have been any manifestation of lack of ability or even of eccentricity in the performance of his work as a judge. His family and house-hold consisted of his widowed mother and his grandfather, Martin I. Townsend. He was the only child of his parents, he had never married, and he had no relatives other than his mother and grandfather nearer than second cousins. It may fairly be assumed that these other relatives had no special claim upon his bounty, inasmuch as it was expressly admitted upon the trial that all the defendants in this action were in good financial condition. On April 16, 1902, Judge Nason, with the acquiescence of his physician, Dr. Everard D. Ferguson of Troy, went to the Glen Spring Sanitarium at Watkins, N. Y., a health resort then under the charge of Dr. James E. King. He remained there until the 25th day of July in the same year. His mother was at Watkins with him during a portion of this period. I shall assume, for reasons to be stated hereafter, that Judge Nason was suffering at this time from some form of neurasthenia, the malady commonly known as nervous prostration or nervous exhaustion. On his return to Troy he resumed his judicial duties and his usual course of life at home, without indicating, so far as the evidence discloses, any serious physical disability or any lack of mental power or comprehension. There is no intimation that at the time of the execution of the will in November, 1902, or at the time of the execution of the codicil, two days before his death in March, 1903, anything was observed in his conduct to justify the inference of want of testamentary capacity on either occasion.

There are 43 defendants in the action. Eleven answers were interposed. Four of these were in behalf of infants and four others admitted the validity of the probate of the will and codicil. In one of the remaining three answers there was merely a general denial of the allegations of the complaint while two of them, in addition to a general denial, set up four affirmative defenses as follows: (1) Lack of testamentary capacity; (2) undue influence; (3) that the testator at the time of the execution of the will and codicil was afflicted with a suicidal mania which entered into and formed a part of the testamentary disposition attempted by those instruments; and (4) that there was a failure to prove in the Surrogate's Court the identity of the instruments as duplicates. The plaintiff made out a prima facie case under section 2653a of the Code of Civil Procedure, by putting in evidence the record of the probate proceedings in the Surrogate's Court. He also put in the will and codicil which had been admitted to probate. I will consider the affirmative defenses, and the evidence offered in support of each but in a different order from that in which they are set up in the answers. The will purports on its face to have been executed in duplicate; so does the codicil. Hence, the appellants contend that it was incumbent upon the plaintiff to establish by proof that the alleged duplicates were in fact duplicates, and they further insist that it should have been left to the jury to say: ‘Was there any identification of duplicates as such, or identification of which instrument it was that the testator published for his will?’

Where a will is executed in duplicate this court has declared that there can be no conceivable reason for providing both instruments or having both admitted to probate. ‘The proponents of either duplicate can undoubtedly be required to produce the other, so that both may be before the court for inspection, that it may be seen whether they are precisely alike, or whether there has been any revocation. But when it appears that they are alike and that there has been no revocation, then it would be quite an idle ceremony to prove both, or to admit both to probate.’ Crossman v. Crossman, 95 N. Y. 145, 150. In the case of the will and the codicil here, only one of the duplicate instruments was proved in the Surrogate's Court and received in evidence upon the trial of the present action, but the plaintiff sought to introduce the other duplicate will and codicil, in strict accordance with the practice approved in the Crossman Case. The contesting defendants, however, interposed an objection, and thereupon the papers were withdrawn by plaintiff's counsel. Under these circumstances, the contesting defendants are in no position to insist that the proof is insufficient to establish the identity of the alleged duplicates, for the contention is inconsistent with their own objection. The instruments were produced in court open for their inspection and it is not to be supposed that competent counsel, if there was the slightest reason to believe that they did not correspond with the probated will and codicil, would have objected to their introduction. As the proof stood there was clearly no question for the jury on this branch of the case.

The next proposition which I will discuss is the assertion on the part of the contesting defendants that if either the will or codicil was made with an intent on the part of the decedent to take his own life, the instrument executed with such intent is void as against public policy. It seems a sufficient answer to this proposition that the record discloses no evidence to warrant the inference that either instrument was drawn up or executed with suicidal intent. The mere fact that the testator came to his death by his own hand within a few days after he executed the codicil does not justify such an inference. We may guess or surmise that the testator...