# In re Carver's Will

> New York Surrogate's Court · May 10, 1893 · 1 Pow. Surr. 316

URL: https://www.frixlaw.com/law-library/cases/5667521

## Case

- **Full name:** In re Carver's Will
- **Court:** New York Surrogate's Court
- **Decided:** May 10, 1893
- **Citations:** 1 Pow. Surr. 316; 3 Misc. 567; 23 N.Y.S. 753
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Davie
- **Judges:** Davie
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5667521

## Opinion text

Davie, S.
This is a proceeding to secure probate of the instrument propounded as the last will and testament of the deceased, such probate being opposed upon the grounds of alleged fraudulent alteration, undue influence, and lack of testamentary capacity.
Solander Carver died at the town of Great Valley, in the County of Cattaraugus, on the 1.4th day of February, 1893, at the age of 69 years, leaving him surviving his widow, Rebecca Carver, one sister, several nephews and nieces, but no children or lineal descendants, and possessed of real estate of the value of about $7,000, and personal property to the amount of $14,000. The instrument presented for probate herein bears date on the 9th day of February, 1893, and by its terms be *318 queaths to the widow all of testator’s household fumriture and an annuity of $400 during life. It gives to each of the sons and daughters of a deceased sister of testator small legacies in money; bequeathes to Viola A. Bailey, another niece, an interest in a certain real estate mortgage known as the “Riles mortgage and devises the real estate to the proponent, and gives to him the residuum of the estate after payment of such legacies and the death of the annuitant. The proponent and the legatee Bailey are children of the only living sister of deceased; the contestants William Scoby and Jennie Rorton are children of a deceased sister of the testator; and the minors, who appear herein as contestants by their special guardian, are grandchildren of said deceased sister.
A methodical analysis of the objections urged against probate herein, and of the facts and circumstances upon which the same are predicated, leads us first to an examination of the claim of fraudulent alteration. Questions of this character have been before the courts so frequently that there need be but little difficulty in determining the general legal principles applicable thereto, and in passing it will be observed that moré marked distinctions exist between alterations, erasures and interlineations appealing from inspection of wills than any other class of legal documents. As a general rule such alterations, in the absence of proof to the contrary, are presumed to have been made before the execution of the writing in which they appear. Such presumption seems to have had its origin in the fact that material alterations modifying or defeating vested rights under written documents are usually the outgroAvth of a criminal intent, the existence of Avliich the lavv does not Avillingly presume, always preferring the presumption of innocence to that of guilt; but an exception to such rule exists in ease of wills, which from their very nature cannot become operative or vest any rights, and which are absolutely subject to the volition of the testator, to the time of his demise, and Avhere the necessity for the presumption above referred to does not exist. The generally recognized rule is that, where alterations appear upon the face of a *319 testamentary disposition of property, such alterations are presumed to have been made after execution, rendering it necessary for those seeking to establish a will containing such apparent defects to overcome such presumption by proof, direct or inferential. Wetmore v. Carryl, 5 Redf. Sur. 544; Dyer v. Erving, 2 Dem. Sur. 160 . The Court of Appeals, in a somewhat recent case bearing upon this subject, says that, “where an interlineation, fair on the face of the instrument, is entirely unexplained, we do not understand that there is any presumption that it was fraudulently made after execution” (Crossman v. Crossman, 95 N. Y. 145 -152) ; but in that case the application of the principle there enunciated was limited to wills where the interlineation was fair upon its face; for the court says that, if there are any suspicious or doubtful circumstances growing out of the mode of alteration, the ink in which it was made, the fact that it was in favor of the party holding the instrument, and that it is not noted at the bottom, then these and all the other circumstances pertaining thereto become questions of fact for the consideration of the trial court in determining whether such alteration was made before or after execution.
The second point of variance between wills and other instruments containing alterations is the effect thereof upon the validity of the instrument containing them. It is the general rule that a material alteration in written documents, made after execution, for fraudulent purposes, vitiates the entire instrument. Such, however, is not ordinarily the ease with wills. The effect of an unauthorized and unauthenticated erasure or interlineation in a will, made after execution, is to render the change thereby sought to be made inoperative, leaving the will to stand in form and effect as before such alteration was attempted. The reason for such a rule in case of wills is apparent. The statute has surrounded the execution of testamentary instruments with certain reasonable forms and ceremonies as a shield and protection against fraud and imposition, and the purpose of such precautionary measures might be entirely defeated if held applicable only to the original execution, leaving all subsequent alter *320 ations and modifications, however important, to be made without such protection.
The first item of the will in this case is as follows:
“First. After all my lawful debts are paid and discharged, I give and bequeath unto my beloved wife, Rebecca Carver, out of the avails of my personal estate, the sum of four hundred dollars annually, to be paid to her on demand by executor during her life. I also bequeath to my said wife all of my household furniture, goods, books, pictures, organ, clothing, etc., to be accepted in lieu of dower.”
It is asserted by the contestants that the words “to be accepted in lieu of dower” were inserted after the execution of the will. This allegation presents a question of considerable importance, and one worthy of careful consideration, for the legal effect of the words claimed to have been added is to very materially diminish the value of the widow’s interest in the estate of the deceased. If it appears with reasonable certainty from an inspection of the instrument that such words were not written at the same time as the other portions of the will, then the presumption is that they were inserted after execution, because in this case the alteration does operate in favor of the party holding the instrument, and it becomes his "duty to show sufficient facts to overcome such presumption. This will is written upon the usual printed blank with ruled lines, and all thereof except the signatures of the testator and attesting witnesses was in the handwriting of the proponent, , The words, “clothing, etc., to be accepted in lieu of dower,” are -written upon' and constitute one entire line in regular order,—no crowding of words'or letters, and no alterations', erasures or interlineations, or other peculiarities observable from inspection, except that the letters in the-words “to be accepted in lieu of dower” are somewhat heavier, and of a slightly darker shade, than the letters in most' of the other portions of said instrument, but no darker and but little heavier than the word “fifth,” at the beginning of the fifth item of said will, and neither darker nor heavier than the letter “S” in the name of the deceased at the beginning of the *321 ■will. It will be entirely apparent to any one who will carefully compare the words claimed to have been inserted with various other portions of the will that such words were written with the same ink, and that their apparent darker hue is occasioned simply by a freer flow from the pen, and consequently a greater accumulation of ink at that point. It is the experience of every scrivener that irregularities in the general appearance of written documents, a diversity in the form and shading of the letters, is not only possible, but of very frequent occurrence in writings by the same person, at the same time, and with the same pen and ink, and that such is especially liable to be the case where the scrivener writes from dictation, with his attention divided between the mental operation of comprehending and formulating the instructions of the person dictating and the physical operation of placing the same upon the paper. There are other significant suggestions in this connection. The attesting witness Colgrove had been for many years the family physician of the deceased; was present at the time of the execution of the will; not only signed it as a witness, but saw the testator sign it; and on that occasion examined the will Avith considerable care, so much so that he observed and recollected the blot over the S in the name of the deceased at the beginning of the will; and upon the trial he is shorvn the -will, and asked to examine it, which he does, and is then questioned Avith considerable particularity regarding its appearance, and he testifies distinctly that he observes no changes or alterations therein. Then, again, the widorv—who is the only one prejudiced to any extent by the words claimed to have been inserted —was present with the deceased Avhile the will was being prepared, and knew the Avishes and desires of deceased in regard to the disposition of his property, and who is in a situation to know, and does beyond any question or peradventure know, Avhether this instrument is in the same situation now as when executed by deceased—appears in this case not as a contestant, but, Avith the proponent, urging probate of said Avill in its present form. She is a woman of good judgment and fair ability, *322 and the suggestion is farcical that she would knowingly and quietly submit to the consummation of a fraudulent scheme perverting the testamentary wishes of her deceased husband,, and depriving her of valuable property rights. The only reasonable inference to be drawn from the relations of the widow to this contest is that she distinctly knows and understands what the wishes of the deceased were in regard to the contents of his will, and that she respects such wish, and governs her conduct so as to effectuate the same. In view of all these facts, I have found as a fact in this case that the instrument presented for probate is in the same condition now as when signed and executed by the testator on the 9th of February, 1893.
The second proposition in this case is that of alleged lack of testamentary capacity. The law does not, of course, attempt to-define any particular grade of mental ability or acumen necessary to qualify one to make a will. Wills are made by all classes-of people, in every station of life, and under almost every conceivable set of circumstances; by persons of weak intellect, and by those of magnificent ability; sometimes in the midst of life- and business prosperity, at other times in extremis, or while overwhelmed with adversity. Hence it is impossible to formulate any precise rules applicable to any particular case. The-most that the courts have attempted to do was to dispose of each individual case as it arises, upon its own peculiar facts and circumstances, and in so doing establish certain very general propositions bearing upon this subject. It has been asserted that in law the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as these terms are used in their fixed legal meaning; and if compos mentis, he can make any will, however complicated; and, if non composmentis, he can make no will, however simple. Delafield v. Parish, 25 N. Y. 9 . Again, it has been asserted as a general proposition that one capable of comprehending the condition of his property, and his relations to those who are the natural objects of his bounty, and able to collect- and retain in his mind without *323 prompting the elements of his business, possesses testamentary capacity. Van Guysling v. Van Kuren, 35 N. Y. 70 . And, further, that no presumption of lack of testamentary capacity springs from the fact that the terms of the will are harsh and unjust, and that the natural objects of testator’s bounty get less, under the will than in case of his death intestate. In re Tracy, 11 N. Y. St. Rep. 103. And that there is no presumption against the validity of a will because made by a person of advanced age; nor can incapacity to make a will be inferred from an enfeebled condition of body or mind. Horn v. Pullman, 72 N. Y. 269 . In the light of these and various kindred authorities, an examination of the evidence in this .case discloses but little to sustain, but very much to refute, the claim of want of capacity. The attesting witness Colgrove, who evidently testifies in this case without prejudice or bias, was a physician of many years’ practice. He had been the family physician of the deceased for many years, covering the time of the sickness and death of testator’s only child. He visited deceased daily during his last illness, closely watched the progress of his disease, conversed with him frequently, and from his long acquaintance with and personal attendance upon deceased was peculiarly well qualified to speak as to his mental condition at the time of the execution of this Avill. He declares under oath, positively and distinctly, that tire testator was then possessed of sound mind and understanding. Eor does he give a mere formal, inconsiderate expression of opinion upon this subject,.but he is ‘’subjected to more than a usually lengthy and rigid cross-examination without in the least discrediting his evidence, but, on the contrary, disclosing many facts and circumstances showing tire correctness of his opinion. The other attesting witness, Davis, had been for a long time a neighbor and intimate acquaintance of the deceased, had had business transactions with him, nursed and cared for him in his last sickness, and had ample opportunity to observe any loss of memory or failing of mental capacity on his part; and he also distinctly testifies that at the time of the execution of this Avill deceased was of sound *324 and disposing mind and memory. The correctness of these con- . elusions find most satisfactory confirmation by a slight refer- ■ ence to the circumstances attending the execution of this will as disclosed by the evidence. Deceased had been for many years prior to his death somewhat actively engaged in business. He was a hard-working, industrious man, strictly temperate, possessed of sound judgment and practical common sense, not inclined to be communicative in relation to his business affairs, but, on the contrary, of a secretive disposition, and up to the .time of his last illness had been a man of unusually good health, aside from occasional slight attacks of rheumatism and acute inflammation of the bladder, and at no time had he been afflicted with any physical or mental disorder tending in the least to impairment of his mental faculties. His final sickness began on the 7th day of February, 1893, and the instrument now propounded for probate was executed within two days thereafter, • and at no time prior to the execution of the same did his con-duct or conversation indicate any incoherence, loss of memory, -or weakness of understanding. Although not talking freely, what he did say was in all respects rational, consistent and in-telligible. Directly before the preparation of the will he conversed with the physician regarding his condition; spoke of his plans and intentions regarding the making of a will, and explained why he had delayed it to that time; asked the physician if he could then draw a will for him; desired an opportunity of discussing his business affairs with his wife, and did so, and, after his interview with her, again talked with the physician," and informed him that he was going to make a will, and that his wife desired to be pensioned, as he expressed it, and requested the physician to stay and witness his will when drawn; selected his nurse, Mr. Davis, as the other attesting witness; expressed his approval of the form of the will after it was prepared by saying that it was as he wanted it, and signed it plainly and distinctly, and thereupon declared it to be his last will and testament, and again requested the witnesses to sign it. In view of all these facts and circumstances, concerning which *325 there is no dispute in the testimony, the conclusion seems irresistible that the testator at the time of executing this will was in all respects fully competent so to do.
The remaining question is that of the charge of undue influence exercised upon deceased by the proponent at the time of the preparation of the will. Having determined that the testator at the time of the execution of this will was of sound mind, fully competent to transact business, capable of comprehending the extent of his property and his relations to those around him, it follows as a corollary thereto and a natural deduction therefrom that the making of the will in the form it now presents was the free, untrammeled act of the testator himself. The cases have quite clearly defined the grade and character of the influence which must be shown to have been exercised upon the testator to justify denying probate to a will. In order to avoid a will upon any such ground it must appear that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which by importunity that could not be resisted constrained the testator" to do that which was against his free will and desire, but which he was unable to refuse, or too weak to resist. It must not be the promptings of affection, the desire to gratify the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts or friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. Society v. Loveridge, 70 N. Y. 387 -394; Gardner v. Gardner, 34 N. Y. 155 ; Marx v. McGlynn, 88 N. Y. 357 ; Seguine v. Seguine, 4 Abb. Dec. 191; Dean v. Negley, 41 Pa. St. 312. The exercise of such undue influence must be proved, and, while it is not necessary, and ordinarily not possible, to establish it by ■direct proof, the circumstances relied upon as inferentially showing the same must be of such a character as to naturally lead to the conclusion that such influence had in fact been exerted. Brick v. Brick, 66 N. Y. 144 . It is not sufficient .to *326 show that a party benefited by a will had the motive and the opportunity to exert such influence. There must be evidence that he did exert it. Cudney v. Cudney, 68 N. Y. 149 ; In re Williams (Sup.), 19 N. Y. Supp. 778 . In this case the will was drawn by the proponent, who is named as a legatee therein and executor thereof, and this circumstance is urged with great earnestness by the contestants as proof of undue influence on the part of the proponent. It is undoubtedly true that the law looks with a jealous eye upon the acts of one who, standing in a relation of trust or confidence, is instrumental to any extent in-procuring a testamentary provision in his own favor; and, while such circumstance does not in and of itself invalidate the bequest, it does call for satisfactory explanation, and imposes upon him claiming under such provision the burden of showing that it was in all respects, fair and honest. The only relation which proponent sustained to the testator of a confidential character at the time of preparing the will was simply that of scrivener. The proponent was an attorney, and at some former time had transacted some little legal business for the testator by way of drawing bonds, mortgages and other papers; but it does not appear that at the time the will was drawn the relation of attorney and client existed between testator and proponent to any extent. If the emergency of the case would have permitted doing so, it would undoubtedly have displayed much better judgment and sense of propriety on part of proponent to have procured the assistance of another attorney in preparing this will; but the fact that he failed to do so does not invalidate the legacy to him. It has been distinctly held that the fact that the draughtsman who drew the "will takes a legacy under it is only a circumstance to be considered in connection with other circumstances indicative of fraud or undue influence. Post v. Mason, 91 N. Y. 539 ; Coffin v. Coffin, 23 N. Y. 9 . It has also been held that where a will was drawn by the principal beneficiary under it, and the testator was able to read writing, and of sufficient capacity to transact business, and yet did not read it. it may be inferred from the circumstances that the testator *327 was acquainted with its contents. Nexsen v. Nexsen, 3 Abb. Dec. 360; In re Smith, 95 N. Y. 516 . In the case last cited, it was held that the fact that the attorney of the deceased was the principal beneficiary under the will does not alone create a presumption that the testamentary gift was procured by fraud or undue influence, but that in a case where the testator was of advanced years, infirm mentally and physically, and made his attorney his principal beneficiary, contrary to previously expressed testamentary intentions, and where such attorney was the draughtsman of the will, and took an active part in procuring its execution, and that the testator acted without independent advice, the burden is imposed upon the attorney of showing that the will was the free and untrammeled expression" of the testator’s intentions.
So 1 think it may be said that the general principle adduced from these various authorities applicable to this case is that under the peculiar circumstances attending the making of this will, the burden was imposed upon the proponent of showing that the will, in its present form, correclv represents the wishes ■of the deceased; and it is urged on part-of the contestants that the evidence bearing upon that question falls short of meeting this requirement; and that it fails to show that the testator was fully apprised of the contents of the will before executing it. This charge necessitates an examination somewhat carefully of the facts attending such, execution. Deceased was taken sick February 9, 1893. His physician was called, and visited him at the hour of 4 P. M. of that day, and found him in bed, troubled with a recurrence of his former ailment—inflammation -of the bladder—and with an inflammation of the lunes. The physician visited deceased on the following day (Wednesday), and discovered that- the inflammation of the lungs was extending, and had assumed the form of pneumonia. He visited him again on Thursday—the day the will was drawn—about noon, ■examined him carefully, and concluded that his recovery was a matter of serious doubt. He then talked with the deceased about his condition, and informed him that he was very sick, *328 but expressed to him the hope that he would recover; and them suggested to him that, if his business affairs were not satisface torily arranged, he should then attend to them. Deceased re execution. (Matter of Potter, 33 St. Rep. 936 , 12 N. Y. Supp. 105 .),
*333 The scheme of a will was to divide testator’s estate into 100 parts; the persons who were to receive these shares appeared in the running writing of the will, but the pro raía of shares to be allotted to each of the beneficiaries was originally left blank. There appeared in the -will, when offered for probate, pencil waiting in some of the blanks superimposed over other pencil writings which had been either wdiollv or partially erased, and in other instances ink writings, different from the body of the •instrument in the material employed, appeared over* pencil writings wholly or partially obliterated. The contestants claimed that the burden rested on proponent to explain these erasures and obliterations, and satisfy the court by competent evidence that the will as it then appeared was in that condition when executed, otherwise the will should be recorded in blank. Held, that the rule relied on by contestants in regard to the presumption as to wdien interlineations or alterations of a suspicious nature appearing in a will were made, had no application to the case—that there is no statutory or legal requirement that a will shall be drawn on a particular kind of paper, nor with the same ink, nor exclusively in ink, nor all at one time; and there is no presumption that blank spaces left for the insertion of names or amounts in a wall were filled in after execution; and held further, that the will should be admitted to probate and' recorded, with the spaces filled in in lead pencil in blank, and as to the blank spaces which appeared filled in in ink, that same should be recorded as they appeared in the will, the difference in character of such writing, and of that in the body of the will, affording no ground for saying that such writing was inserted in the wall after execution. (Matter of Tighe, 24 Misc. 459 , 53 N. Y. Supp. [87 St Rep.] 718.)
A handwriting expert, testified that the first and second pages of a will were written on a half sheet of paper, larger and of a different milling from the rest of the will, and were in a running hand, which spread much more than the waiting of the following pages, which was an engrossing backhand, changing to a running hand toward the last, and that the words “two thousand” in a clause giving an annuity of that amount in dollars to testatrix’s granddaughter, were written over an erasure made with chemicals. Held, that these peculiarities rendered it incumbent upon proponents to satisfactorily explain same, and held further, that as the attorney who drew the will testified that he used a prior will as a draft in the preparation of *334 same, and the prior will with pencilled alterations therein, corresponded with the later will, the first and second pages of which were exactly similar to the former will, and as the attorney had no motive for altering the will after execution, it was. exceedingly improbable that the will had been tampered with since its execution, and the peculiarities existing therein were sufficiently explained. (Matter of Dwyer, 29 Misc. 382 .)
When Alterations Deemed To Be Made After Execution.
After a will had been duly executed, certain alterations were-attempted to be made by testator by writing in the will, erasing-' and interlining. Held, that the will as originally executed, should be upheld. (Quinn v. Quinn, 1 T. & C. 437—citing Jackson v. Holloway, 7 Johns. 394 , and McPherson v. Clark, 3 Brad. 92 .)
To the same effect is matter of Prescott, 4 Redf. 178 .
In Dyer v. Erving, 2 Dem. 160 , it was held, following Wetmore v. Carryl, 5 Redf. 544 , that in the absence of evidence to the contrary unattested alterations upon the face of a will must be presumed to have been made after its execution.
Material alterations in a will are not presumed to have been made before the execution thereof, where no explanation of the erasures is given, and where suspicion arises upon the face of the-paper, and from surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper.. (Herrick v. Malin, 22 Wend. 388 ; Smith v. McGowan, 3 Barb. 404 ; Acker v. Ledyard, 8 id. 514 .)
After executing her will, testatrix stated to the scrivener she-wished to make further bequests. Instead of preparing and having executed a codicil, the scrivener wrote testatrix’s directions on a slip of paper, which he subsequently pasted upon the will, the latter having been cut into, so as to permit the clause to be inserted in its proper place as the seventh subdivision of the will. There was no republication of the will after that clause had been written. Held, that the will should be admitted to probate, excluding the inserted clause. (Stevens v. Stevens, 6 Dem. 262 .)
An interlineation, erasure, or other alteration made in a will,, either by the testator or a stranger, after due execution of the instrument, without a new attestation1, does not avoid the instrument, but the court may disregard the same and probate the *335 will according to its original language, when that can he ascertained. (Matter of Wilcox, 46 St. Rep. 877 , 30 N. Y. Supp. 131—citing Doane v. Hadlock, 42 Maine, 72; Smith v. Fenner, 1 Gale [U. S. C. C.], 170; Will of Tonnele, 5 N. Y. L. O. 254; Pringle v. McPherson, 2 Brevard [S. C.], 279; Stover v. Kendall, 1 Coldw. [Tenn.] 557; Wheeler v. Bent, 7 Pick. 61 ; Penniman Will case, 20 Minn. 245 ; Wolf v. Bollinger, 62 Ill. 368 ; Locks v. James, 11 M. & W. 901; Short v. Smyth, 4 East, 418; In re Harny, 30 L. J. Prob. 142; Cooper v. Bockett, 4 Moore, P. C. 419; McPherson v. Clark, 3 Brad. 92 ; Matter of Prescott, 4 Redf. 178 ; Wetmore v. Carryl, 5 id. 544-553; Dyer v. Irving, 2 Dem. 160 -183; Will of Wood, 32 St. Rep. 286 ; Quinn v. Quinn, 1 T. & C. 437; Lovell v. Quitman, 25 Hun, 537 .)
Burden oe Proof.
Material alterations or erasures in a will are not presumed to-have been made before the execution thereof where no explanation of the erasures is given, and where suspicion arises upon the-face of the paper and other surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper. In such case the propounder of the instrument must make the doubt clear. (Matter of Barber, 72 St Rep. 771.) •
Doting oe Interlineations, etc.
Interlineations in a will need not be noted at the foot of thestrument, provided that the place where it should appear is made before the execution and publication of the will. (Matter of Whitney, 70 St. Rep. 259 , 90 Hun, 138—citing In re Voorhees, 6 Dem. Sur. 162 ; Crossman v. Crossman, 95 N. Y. 145, 153 ; Tonnele v. Hall, 4 N. Y. 140 .)
An interlineation may be made in a will,' as in any other instrument, provided that the place where it should appear is designated by the instrument with sufficient certainty. A will was written on a blank form. The first and second clauses filled up the blank space in the will, and at the end of such space were the words, “See annexed sheet.” The third and fourth clauses were written on a separate sheet, fastened by metal staples to the face of the will at a point near the end of the second clause. Held, that the interlineation or attached paper, by the terms of the instrument itself, was to come in and *336 be made a part of the will before the formal ending thereof. (Matter of Whitney, 70 St. Rep. 259 .)
When Probate op Whole Instrument Rejected.
In doubtful eases, where material provisions in a will have been erased or altered, and the court cannot determine from the proof whether the alterations were made before or after execution, probate must be refused, and the whole instrument rejected. (Matter of Barber, 12 St. Rep. 771 .)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5667521. Public record. Not legal advice.