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In the Matter of Eliza Stapleton.

seen from the opinion of the learned surrogate, he was "not satisfied" that the codicil was validly executed, or that the testatrix intelligently assented to its execution, or that she was free from the restraint or compulsion of her husband. It is not attempted to show that the codicil was not executed with the statutory formalities, but it is claimed that the evidence discloses inability of the testatrix to intelligently and freely assent to the codicil owing to her ill health and the undue influence of her husband.

The testimony of the subscribing witnesses to the codicil the lawyer who prepared it and the family physician of the testatrix-shows that every essential element was present in the manner of its execution. They testified that she stated she wished the codicil to be made giving to her husband the money in the bank, and it was so made and read to her and she approved it; that, though she attempted to rise up in bed and sign her name, the doctor thought it inadvisable, and so she was supported in bed and the attorney held her hand on the pen, and thus the mark was made, to which he added the words "Elizabeth Stapleton, her mark;" that she declared it to be a codicil to her last will and testament and asked them both to sign as witnesses, which they did in her presence and in the presence of each other. The physician further testified that the testatrix had formerly indicated her desire to change her will in this manner and he had attempted to prepare a paper for her, but learned that it was illegal, and told her she should get an attorney, which was then done. His testimony is not discredited because this discarded paper was not put in evidence.

Such testimony, showing a desire to make the codicil in question and a compliance with the legal requisites, which is absolutely unchallenged, goes far to showing that the testatrix acted freely and intelligently. And it is

In the Matter of Eliza Stapleton.

supported by the further testimony of the lawyer and the physician that she was at the time, in the words of the latter, "of sound and disposing mind and memory and understanding," and not "under any restraint or influence or duress." On this subject of duress there is not a word of testimony to show that the husband exerted any undue influence. The uncontroverted testimony, even of the contestants' own witnesses, is that there had never been family disputes; and the fact that the husband was attentive and well disposed towards his wife, and was with her constantly during her illness, is what was to be expected of him, and is no basis for finding that he exerted undue influence.

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The real question thus comes to be whether or not the testatrix was physically able to intelligently supplement her will by this codicil. It is true that she was, as stated by the learned judge writing the prevailing opinion, her deathbed," but so she was when she executed the will itself. Was she on the 18th day of March, the date of the codicil, able to make a valid testamentary disposition? Those who were present say that she was; and these include, besides the lawyer and physician, the housekeeper, who said "she was all right in her mind and knew what she was doing and saying;" adding that after the execution the testatrix requested her to remove papers scattered upon the bed and to give her a drink of water, and thereafter said she wanted to lie down, as she had been propped up in bed. The housekeeper further said, that the day before Mrs. Stapleton had given directions as to what preparations to make for dinner.

Another witness said she had seen the testatrix the day prior to the making of the codicil and she had mentioned that she intended to give the money to her husband; and a boarder in the house testified that the day previous,

In the Matter of Eliza Stapleton.

March 17th, he had talked with her and she was rational, and he often had seen and spoken with her about that time. Another witness said she called on the testatrix on March 23d, and shook hands with her and asked her how she felt, and she said she was feeling pretty good but she was very weak; that Mrs. Stapleton then asked about her family and she thought her of sound mind. Father Farrelly, who, from March 1st, had constantly attended the testatrix, testified that at times she was flighty, but that about the middle of the month he came to the conclusion that she was going to get better, and that on the 18th of March he took her confession. As to this we have

the following questions and answers: "Q. You had every opportunity on that particular day of seeing her condition, of observing her condition? A. Yes. Q. You can state positively that she spoke intelligently on that day? A. Oh, yes. Q. Heard her confess intelligently? A. Yes." Another priest testified that at times during March his conclusion was her mind was wandering, but she also during that month spoke to him intelligently. A niece of the testatrix testified that either on the 19th or else on the 26th she called on her aunt but had not seen her previously for a year, and her aunt did not know her. And another niece testified that she saw her aunt on March 12th, and the latter asked her irrational questions. The contestants also called one of the residuary legatees, who testified that he was in the habit of visiting his aunt during her last illness; but he was not asked how she was at such times.

It will be seen that the testimony of all the contestants' witnesses, regarding the irrational condition of the testator at the times mentioned by them, is not inconsistent with the testimony of the proponent's witnesses that on the 18th of March, when the codicil was duly executed,

In the Matter of Eliza Stapleton.

she was of sound mind and disposing memory. On the other hand, to refuse probate to the codicil is to impeach the statements of the subscribing witnesses, a physician and lawyer. The testimony of the two nieces, that when they called their aunt did not appear rational, is explained by the priests who called often during the month, and who testify that sometimes she was "flighty," although at other times perfectly intelligent. That she was of sound mind on the 18th and able to make a valid disposition of her property as testified by those present at the time is corroborated by the statement of Father Farrelly that about the middle of the month he thought she was going to get better, and that on the 19th, the day following the execution, he took her confession. And it is also corroborated by all the other disinterested witnesses who called about this time and conversed with the testatrix. Furthermore, according to the housekeeper, who was with Mrs. Stapleton constantly, she did not become actually unconscious until two days before her death, which oc cured March 31, nearly two weeks after the execution of the codicil.

From this summary of the evidence we think it is clear that this case, as stated, is one requiring that the question of the testamentary capacity of the decedent should be determined by a jury. That part of the decree, therefore, from which this appeal is taken should be reversed and a trial ordered before a jury, with costs to the appellant to abide event.

VAN BRUNT, P. J., and PATTERSON, J., concur.

LAUGHLIN J. (dissenting)-The decree admitted the will to probate, but adjudged that the codicil was null and void upon the ground that at the time of its execution the testatrix "had not sufficient mental capacity to exe

In the Matter of Eliza Stapleton.

cute the same," and " was not free from restraint or compulsion of her husband, Patrick Stapleton."

The appellant, Stapleton, was the husband of the testatrix, and he alone was benefited by the codicil. He was duly cited on the probate proceedings, but failed to ap pear, and as to him the decree was entered by default. The appellant, O'Leary, is one of the executors of the will, and it was probated on his application. Father Boyle, the testatrix's parish priest, was the other executor, and he appeared in the proceeding, but has not appealed. The will consisted of thirteen clauses or paragraphs apart from that in which the executors are appointed. The first eleven clauses directed the payment of her debts and funeral expenses and the sale of the house and lot where she resided, and of which she died seized, and gave legacies aggregating $5,600, together with two specific bequests, one of her life insurance and the other of another lot and improvements within the city of New York. By the twelfth clause she gave, devised and bequeathed the rest, residue and remainder of her property to the children of her deceased sister, Mary Egan, share and share alike. By the thirteenth clause she declared that she made no mention of her husband in her will," because he is already well provided for with this world's goods to need anything from me." The will was executed on the 26th day of February, 1899. The codicil was executed on the 18th day of March, 1899. It expressly revoked the twelfth and thirteenth clauses of the will, and further provided as follows:

"I give, devise and bequeath to my beloved husband, Patrick Stapleton, all the moneys deposited to my credit in the Harlem Savings Bank, One Hundred and Twentyfourth street and Third avenue, New York city, all the moneys deposited in the Emigrant Industrial Savings

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