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that the testator, when he made his will on the 23d day of May, 1905, had full testamentary capacity, and that the provisions of this will expressed the intention which the testator then had in relation to the disposition of his property.

The plaintiffs have offered a great mass of evidence, tending to show, among other facts, that the health of the testator suffered a decline from the spring of 1905 until his death; that he was very much troubled and worried during the fall of that year because certain mechanics' liens had been placed on a new store which he was then erecting; that he was irritable and excitable; that he had occasional lapses of memory with respect to some small matters; that on occasions he would pass quickly in conversation from one subject to another; that he had lost flesh rapidly, became physically weak, and continued to decline until the time of his death. The physician who attended him during the last three days of his life testified that the chronic Bright's disease from which he was then suffering was, in his opinion, of at least six months' standing, and that it was a sufficient producing cause of these mental and physical conditions. No direct evidence has been offered by the plaintiffs with reference to the testator's mental condition at the time he executed the codicil; and, in order to support the allegations of mental unsoundness, we are dependent entirely upon such inferences and presumptions as may properly be drawn from the condition of the testator prior and subsequent to the time of such execution. There is evidence tending to show that the testator was naturally somewhat eccentric, pompous, egotistical, quick-tempered, and that, during the last months of his life, his natural peculiarities were greatly aggravated and accentuated by the diseases from which he was suffering. But this is not sufficient to establish that, at the time of the execution of the document, the testator did not have sufficient capacity to comprehend perfectly the condition of his property, and his relation to the persons who were or should or might have been the objects of his bounty, and the scope and bearing of the provisions of the instrument. Wills are not to be set aside except for the gravest reasons. It is only in a case where there is substantial proof tending to establish mental incapacity or undue influence that courts or juries may annul testamentary acts. To warrant the submission to the jury of the testator's mental capacity at the time he executed the codicil in question, there must be evidence which would warrant the court in its review in holding that it naturally tended to prove such mental unsoundness in the testator, when he executed this codicil, as to render him incapable of forming a judgment as to the condition of his property or of apprehending his true relations to the persons whom his will deprives of a share in the estate which might reasonably or naturally have been anticipated.

I have not overlooked the evidence given by Dr. Hubbard that, in his opinion, the testator did not have testamentary capacity at the time. this codicil was executed. The fact is that he never saw the testator until a few days prior to his death, when he was practically in extremis. But he testified that, even during those days, the testator may have had lucid intervals. His opinion as to the testator's soundness of mind on January 23, 1906, was based almost entirely upon facts of

which he had no personal knowledge, and was therefore largely speculative. It must be borne in mind that we are not here to determine whether or not the testator made a wise or just disposition of his property, or whether he should have made provision for his aged mother or others of his next of kin. A person has a right to dispose of his property in such a way and to such persons as he thinks best. He may disinherit child and parent. I have considered carefully, day by day, the evidence, as it has been offered upon this trial, and have weighed the arguments of counsel made upon this motion. I have also read carefully not only the opinion of the Court of Appeals in Dobie v. Armstrong, 160 N. Y. 584, 55 N. E. 302, and also in Hagan v. Sone, 174 N. Y. 317, 66 N. E. 973, but have also examined the record which was before the court upon those appeals; and, in the light of these decisions, and of the later decision in Philips v. Philips, 77 App. Div. 113, 78 N. Y. Supp. 1001, affirmed 179 N. Y. 585, 72 N. E. 1149, I cannot bring my mind to the conclusion that the evidence in this case is sufficient to warrant its submission to the jury. I do not deem it necessary, in passing upon this motion, to review the great mass of evidence, both oral and documentary, submitted by the defendants, to show that at the time the testator executed this codicil he was of sound mind; that, during the months of September, October, November, and December, 1905, and January, 1906, up to the time of his departure for the South, he was, as usual, in personal charge of his extensive business and gave personal attention to the management of his affairs; that during the day, the evening of which he executed the codicil, he was at his usual place of business, signing checks, conversing with his cashier and manager, negotiating with his bank for loans of thousands of dollars, and transacting business of the most serious and important character with his usual mental vigor; that he stated to Mr. Smith, his confidential man, during luncheon on that day, that he was going to execute his will that evening, and that during the afternoon he showed the codicil to a friend, while riding in the park, and stated to him its contents, and remarked upon the reasons why he was leaving his entire property to his wife; that on that day he drew a check for $100 and sent it to his mother, showing that he had her fully in mind; that he himself invited the subscribing witnesses to his home to act in that capacity; that he signed the codicil in their presence, and asked each of the gentlemen who were witnesses to read it aloud before they signed as subscribing witnesses; that on the following day he was busy making final preparations for his trip; that on his way south he visited Washington, Charlotte, Atlanta, Montgomery, New Orleans, and San Antonio; that he was deeply interested and seemed to thoroughly enjoy all that came under his observation, and that he occasionally wrote letters to his business associates here in New York.

I am therefore led irresistibly to the conclusion that the court has but one duty to perform, and that is to direct the jury to find a verdict that the codicil executed by Christopher C. Shayne, on the 23d day of January, 1906, in his last will and testainent; and I so direct.

and 140 New York State Reporter

(121 App. Div. 301.)

RIGGS et al. v. RYAN.

(Supreme Court, Appellate Division, Fourth Department. Sept. 25, 1907.) 1. CONTRACTS-LEGALITY OF OBJECT-PUBLIC POLICY.

Any contract is against public policy, and void, which provides for the sale by an individual of the right, given him with others by legislative enactment, to give or withhold his consent to any project affecting a public interest, and where the giving or withholding of such consent may become the basis of governmental action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, § 510.]

2. SAME.

An agreement to reimburse another for a sum that he might pay the owner of a building occupied exclusively as a dwelling to secure the consent required by Liquor Tax Law, Laws 1896, p. 60, c. 112, § 17, subd. 8, providing that, to obtain a certificate authorizing the sale of liquor on premises in a residential district, the consent of two-thirds of the owners of buildings occupied exclusively as dwellings within a radius of 200 feet of the premises on which the liquor is to be sold must be secured, is void as against public policy and unenforceable.

[Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, § 510.] Robson, J., dissenting.

Appeal from Trial Term, Jefferson County.

Action for rent by Charles D. Riggs and another against Stephen R. Ryan. From a judgment for plaintiffs and an order denying his motion for a new trial, defendant appeals. Judgment and order affirmed.


N. F. Breen, for appellant.
George S. McCartin, for respondents.

MCLENNAN, P. J. The plaintiffs executed a lease of the premises in question which entitled the defendant to occupy the same for the term commencing October 1, 1904, and ending October 30, 1910, for a monthly rental of $50, payable monthly. Said lease contained the provisions:

"But it is understood that in case a license to sell liquor cannot be obtained under the law that this lease shall terminate and become void. It is understood that said premises are to be used for a saloon and to have a license under the liquor tax law of the state of New York, provided the same can be obtained."

It is practically conceded that it was the understanding of the parties, and intended to be expressed by such provision, that, if a license to sell liquor upon such premises could not be obtained, the lease should not become effective, and that, if such license was obtained and thereafter revoked without the fault or procurement of one of the parties, the other could not insist upon the continuing validity of such lease. A license was obtained, authorizing the sale of liquors upon the premises in question, and the defendant entered into possession thereof under the terms of such lease on the 6th day of October, 1904, and occupied the same until the 1st day of May, 1905, a period of 6% months, at which time the liquor tax certificate which

had theretofore been issued to the defendant was revoked, and it is conceded by all parties that the liability of the defendant under such. lease then terminated. For the time which he had so occupied the premises the defendant became indebted to the plaintiffs in the sum of $340. Concededly $300 of such amount has been paid by the defendant, which would leave a balance due to plaintiffs of $40 because of defendant's occupancy of the premises under said lease, unless the alleged counterclaim of the defendant to which attention will hereafter be called should be allowed. After the liquor tax certificate had been revoked, and the right to sell intoxicating liquors on the premises had ceased, the evidence on the part of the plaintiffs tends to show that the parties entered into a verbal agreement, by which the defendant was to continue to occupy the same as a poolroom, to sell soft drinks, so-called, etc., and to pay a reasonable rental therefor, that, under such verbal agreement, the defendant did occupy the premises for a period of 10 months, and that the rental of the same under such conditions was reasonably worth $30 per month. The defendant denied that any such agreement had been made, or that the relation of landlord and tenant existed between him and the plaintiffs after the cancellation of the liquor tax certificate as aforesaid, and also put in issue the rental value of the premises under such cir

and 140 New York State Reporter


Under a charge which was eminently fair and to which no exception was taken, the learned county judge submitted the question to the jury, and they found practically that the verbal arrangement was made as testified to by the plaintiffs, that the fair rental value of the premises during such 10 months was $15 per month, and awarded to the plaintiffs $150 for the rental of the premises for such period, adding thereto the $40 of the rental remaining unpaid for the time which he had occupied the premises under the lease. It cannot be said that the verdict of the jury upon that issue was contrary to or against the weight of the evidence.

The only remaining question to be determined upon this appeal is whether or not the alleged counterclaim of the defendant should have been allowed reduction of the verdict, which involves the question whether the agreement under which it is alleged to have accrued is against public policy, and therefore not enforceable. The premises in question were located in a residential portion of the city of Watertown, and so that it was necessary under subdivision 8, § 17, Excise Law, Laws 1896, p. 60, c. 112, in order to obtain a liquor tax certificate authorizing the sale of liquor upon said premises, that the owner or owners of two-thirds of the buildings occupied exclusively as dwellings within a radius of 200 feet thereof should consent in writing to the issuance of such certificate. Both parties to this action were alike anxious that the necessary number of consents should be obtained. The defendant alleges that the plaintiffs authorized him to pay to one Bell, one of such owners within the 200 feet radius, $50 for the purpose of inducing him, said Bell, to consent that a liquor tax certificate be issued to the defendant and which would authorize him to sell liquor upon plaintiffs' premises; that the plaintiffs agreed that, in case he paid such $50 to Bell and thus obtained.

Bell's consent, the plaintiffs would reimburse him for such payment; that, pursuant to such agreement, the defendant paid to Bell the $50, and obtained his consent, which, it is supposed, made the requisite. two-thirds. The defendant seeks to counterclaim in this action the $50 so paid to Bell by him. The plaintiffs urge that such agreement, if made, was against public policy and void. The county judge so held as matter of law, and refused to submit to the jury the question. as to whether or not such agreement was made as claimed by the defendant, to which ruling an exception was duly taken. We fully concur in the conclusion reached by the learned county judge that the agreement, if made as alleged by the defendant, is void, and therefore may not be made the basis of a counterclaim in defendant's favor.

It was clearly the intent of the Legislature, in passing the provision of the excise law to which attention has been called, to serve a public interest by preventing the sale of liquor in a residential part of a city, unless the owners of two-thirds of the buildings occupied. exclusively as residences within the radius named in the statute, in good faith and in the exercise of their respective judgments, deemed it for the best interests of such community that liquor should be sold therein. It is inconceivable that the Legislature simply intended by such enactment to give to such property owners an opportunity to demand a monetary consideration for their respective consents, to sell the same to the highest bidder, and then to enforce the payment of the bid so made in an action at law. If such an intention can be imputed to the Legislature, it is readily seen that an owner of a single building occupied exclusively as a residence, however inconsiderable its value, might, if his were the one additional consent necessary, find himself the owner of a very valuable asset, all depending upon how much the would-be saloon keeper was willing to pay for a single consent, or how much those who were opposed to the establishment of a saloon in the locality might be willing to pay for the withholding of such consent. The Legislature did not intend by the provision of the statute adverted to to provide a means by which consents may be purchased, upon which important public interests may depend, affecting not only the seller of a particular consent, but all others similarly situated, and who, perchance, have no inclination or have had no opportunity to sell their consents. Such provision contained in this and other statutes of like import was enacted in order that the judgment of a certain class of citizens may be obtained in order to determine what the action of the state should be in a particular case, and not to provide a means to the unscrupulous for a sale to the highest bidder of their judgment in that regard. Any contract is against public policy, and therefore void, which provides for the sale by an individual of the right, given to him with others by legislative enactment, to give or withhold his consent to any project affecting a public interest, and where the giving or withholding of such consents may become the basis of governmental action. In the case at bar it was a matter of public interest whether or not liquors should be sold in the locality in question; and whether or not such sale should be authorized under the laws of the state of New York depended solely upon the giving or withholding of the consents of the

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