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and 140 New York State Reporter James W. Swanick, for appellant. Charles C. Lester, for respondent,

COCHRANE, J. No personal claim is made against the defendants, but plaintiff is seeking to recover out of the property an amount which the demurrer admits to be unpaid on said contract of January 24, 1881.

That the foregoing facts vest the plaintiff with a good cause of action for the relief sought admits of no doubt. Although Mrs. Warren did not receive the deed under the foreclosure sale, she became entitled thereto, and was the equitable owner of the property by virtue of such sale. The delivery of the deed to her was a mere formality, and, so far as the facts appear, she could at any moment have possessed herself of the same. The rights of the parties as they then existed were that Carroll by virtue of such contract of January 24, 1881, became the equitable owner of the property and entitled to a deed thereof from Mrs. Warren, and all that the latter had were such rights as she acquired under said contract. The failure of the parties to consummate such contract was not her fault. According to the complaint, she was able to perform her contract with Carroll, and offered to do so. Carroll recognized the contract by remaining in possession thereunder and making payments on account thereof. His successors cannot very well claim that there was a failure to perform on the part of Mrs. Carroll. When she died, therefore, the equitable status of the parties was that Carroll was entitled to a deed of the property, and Mrs. Warren had only such rights as were accorded to her by said contract. Whether such rights belonged to her individually or as the representative of the estate of William L. F. Warren, deceased, in either event they were duly assigned to Susan W. Bryan, plaintiff's testatrix, by the representatives of the estates both of William L. F. Warren and Eliza Warren, respectively, and thereby plaintiff's right to enforce such contract becomes unquestioned. We need not indulge in any refinement of reasoning as to who, strictly speaking, should have received the deed of the property after Mrs. Warren's death. Under her contract with Carroll, she in her lifetime became entitled thereto only for the purpose of transferring the title to him. The deed under the foreclosure judgment might have been executed directly to him in consummation of such contract on his complying with the terms thereof. It was, in fact, executed to Susan W. Bryan, who had succeeded to the rights of Mrs. Warren in said contract, and who recognized Carroll's right to the property, and held the title for his benefit and offered to convey it to him. No other person had any right to the deed, save in confirmation of his title. If no deed had been executed, it would not change the situation under the circumstances here appearing, but the court would establish the rights of the parties according to their contract. The fact that Mrs. Bryan received the deed, even if irregular, is inconsequential, in view of the fact that both she in her lifetime and her successor, since her death, held the title for the benefit of Carroll and his successors. The allegation in the complaint that the residuary legatees under the will of William L. F. Warren, deceased, became entitled on the death of Mrs. Warren to a deed of the said premises is not

a statement of fact, but a conclusion of the pleader, which, if erroneous, may be disregarded.

It is suggested that Mrs. Warren was not authorized to make the contract in behalf of her decedent's estate, or to dispose of the property. As incidental to her authority to foreclose the mortgage, she also had power to dispose of the property which came to the estate and which was a part thereof by virtue of such foreclosure, and which stood in the place of the mortgage.

It is further urged that, as the contract was to be effective only in case Mrs. Warren should complete the foreclosure of the mortgage and become the purchaser of the property at the foreclosure sale, she did not absolutely bind herself to convey the property to Carroll, and that hence the contract lacked mutuality. When Mrs. Warren became the equitable owner and capable of conveying the property and Carroll was in possession thereof under the contract and made payments thereon, she became obligated to fulfill the contract, and from that time forward, irrespective of the prior status of the parties, the contract has been mutually enforceable. The appellant may not retain possession of the property without responding to the corresponding obligations resting upon him. The only relief plaintiff seeks herein is of an equitable nature. With a perfect claim of right under the contract he is endeavoring to enforce, and with the appellant in possession of the property without a shadow of right thereto, save under such contract, a plain case is presented to a court of equity for such relief as is sought.

The interlocutory judgment should be affirmed, with costs and with leave to the appellant, on payment of such costs and of the costs in the court below, to withdraw the demurrer and serve an answer.

All concur.

(35 Misc. Rep. 487.)

In re ARMSTRONG'S WILL.

(Surrogate's Court, Oneida County. July, 1907.) WILLS—COMPETENCY OF TESTATOR-EVIDENCE.

Testator, an old man, left as his next of kin one nephew and seven nieces, and devised his entire property to the nephew and one of the nieces. The will showed a knowledge on the part of the testator as to his affairs. Held, that he should not be adjudged devoid of testamentary capacity because of some peculiarities in conduct or on the opinion of a doctor, who is not a medical expert and who had never examined nor treated him, nor on that of witnesses based on the facts not justifying their conclusions that he was irrational, where he was thought rational by many witnesses who had no interest in the result of the proceedings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, $8 137, 147, 159.) In the matter of the last will of Alden Armstrong. Probate decreed. L. M. Martin, for proponents. S. A. Miller and W. E. Burdick, for contestant. Timothy Curtin, special guardian.

SEXTON, S. The deceased left a will, dated January 19, 1904, and died October 19, 1906, at the age of 92 years, leaving no widow or

and 140 New York State Reporter children. His nearest relatives were seven nieces and one nephew. He left his property, valued at about $900, equally to his niece, Betsy Kimball, with whom he lived from 1902 to the time of his death, and his nephew, Amos P. Armstrong, who helped him in his business matters for a time prior to 1902. Probate was objected to by a niece, Cornelia Burdick, alleging testamentary incapacity, undue influence, and that testator was under the effect of a powerful narcotic when he signed the will.

Two of contestant's witnesses, husband and wife, lived in a separate part of the house with deceased for about two years prior to 1902, and testified that he was irrational, based upon a mixed state of facts descriptive of his life and conduct, which failed to establish the conclusion reached by the witnesses. They testified that deceased lived alone and had no help, bought his groceries, cooked his meals, set his table, washed the dishes, planted his land in the regular way, harvested the crops at the proper time, went to church, sometimes alone, on foot, a mile away, and returned at the usual time, spoke to every one who spoke to him, retired at 8 p. m. unaided, and arose about 7 a. m. Irrationality is claimed because he hurt his head, and he said some one came to his bed to rob him, talked to himself, sung hymns before retiring, read a great deal-often old matter. Witness Beswick saw him in 1903 at Mrs. Kimball's and sat at the table with him. He ate same as others; retired without aid; never had any talk with him. "On account of his repeating the same hymns, and, when it was time to go to bed, to have to be told,” witness pronounced him irrational. Witness Keys said:

“I base my idea, his being irrational, on the fact of his being a somewhat childish old man."

The evidence of the doctor for the contestant, it is urged, is such as would warrant the denial of probate. This witness on cross-examination reverses himself many times, and, when tested, showed very poor memory. It appears that deceased had erected a headstone on his lot in the cemetery, which he frequented, and spent some time around his lot and in reading inscriptions. In August, 1903, the deceased entered the cemetery and "stopped at the first gravestone and commenced to read, and he stood there a minute or two and then went to the next, and continued on. Q. Did he speak out loud? A. Yes, sir. Q. What did he say? A. I can't tell; but it was nothing on the stone. I could hear what he said. Q. Was it the same as on the gravestone? A. No, sir."

On cross-examination the following appeared:

"Q. You couldn't read, from where you were, what was on the monument? A. No, sir; I couldn't understand what he said. I read what was on the monument. By the Court: Q. How do you know but that he was saying what was on the monument? A. Well, it was a jumbled-up mess. What I meant was, I couldn't remember what was said. I do not now know a single word that was on that monument, and do not remember a single word that he said.

He impressed me as irrational. His condition was senile de. mentia. I never attended him professionally, and base my conclusions on casual observations of him on the street and at times when there attending another patient. I don't know as he was ever sick. I never examined him as to his condition, and I am not an expert on mental disorders. To detesmine

whether a condition is due to old age or senile dementia would require a careful diagnosis of the case."

When evidence of this character is given by a professional man and urged as ground for the nullification of so solemn a document as a will, the mantle of charity should not be used by the court and the subject passed in silence. Any doctor who will swear in one breath that a man is irrational, in the next that he is afflicted with senile dementia and that his condition, whether from old age or senile dementia, can only be determined after a careful diagnosis for that purpose, and that he never examined him or treated him professionally, is dangerously close to the line of perjury, as on his own evidence he did not know his condition.

The contestant furnished evidence by one witness that deceased did not take very good care of his person for one of his years, by two witnesses that he was dirty, and by five witnesses that he was irrational. No delusions were shown, or insanity in the family, or restraint exercised, or interference of any kind with the conduct or movements of the deceased, from 1902, when he went to Kimball's to the time of his death.

On behalf of the proponent, the 2 subscribing witnesses, one an attorney and the other a business man, each of whom had known the deceased for at least 8 years, and 11 other disinterested witnesses, including 2 clergymen where deceased attended church; also Dr. Dudley who had talked with deceased seven or eight times during 1903 and the summer of 1904, and the postmaster, who had seen him almost daily after the mail for about 4 years before his death and had paid him money and taken his receipt; also a witness who had known him 47 years and met him three or four times a week since 1902, and was always recognized by deceased; also a witness 74 years of age who, in August, 1904, found deceased alone at the Kimball home and paid him $25, which he counted and put on a shelf, and afterward requested that it be left with the depot agent, as he had been robbed once and didn't want to take it, and went to the cemetery with him and had a long visit—in all, 15 witnesses, without any financial interest in the result, testified that deceased was rational.

It also appeared that contestant, Cornelia Burdick, got $2,000 "out of him," and she admitted having had $700, which she never returned, on which she paid deceased no interest. It appears that Amos P. Armstrong, one of the beneficiaries, had befriended the deceased for years, and that deceased had told different people how much pleased he was with his home at Mrs. Kimball's, the other beneficiary, and how well he was cared for.

Upon this evidence there is a question of fact for the court, in the determination of which the will itself can and should be considered. On its face the will shows an intelligent grasp, on the part of the testator, of his affairs. He directs the payment of his debts, and then gives his small estate, amounting to about $900, to his nephew and his niece equally; they being the only relatives, upon the evidence, that had taken any special interest in him in his declining years. This was equitable, and evidently believed to be so by seven of his eight

106 N.Y.S.-43

and 140 New York State Reporter nieces, not benefited, several of whom lived near him and did not join in the contest. Upon these facts did the testator have testamentary capacity when he made his will? The rule long followed in this state as to testamentary capacity is as follows:

“Testator must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do those things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and is competent to dispose of his estate by will." Delafield v. Parish, 25 N. Y. 9.

Incapacity cannot be inferred from an "enfeebled condition of mind or body." Horn v. Pullman, 72 N. Y. 269.

“Old people must, or at least may, be permitted to make wills, and the fact that they have lost much of the mental vigor of their earlier days does not prove or tend to prove that their testamentary acts are invalid." Hagan , Sone, 174 N. Y. 321, 66 N. E. 974.

The notion prevails among many people that a will can be set aside when all the relatives are not, to some extent, benefited by it. “A man's testamentary disposition of his property is not invalidated because its provisions are unequal, or unjust, or the result of passion, or of other unworthy or unjustifiable sentiments. It is natural, and, therefore, usual, to make provision for a child; but, under our governmental institutions, no obligation to do so is imposed upon the parent, and the presumption of validity is not affected by the failure to do so, alone. Nor is the presumption in favor of a will overcome by showing that the testator was of advanced age or of enfeebled condition of mind or body.” Dobie v. Armstrong, 160 N. Y. 584, 55 N. E. 302.

The evidence, as I read it, does not go to the length of establishing that the testator did not comprehend the extent and value of his property and have in mind those most deserving of his bounty when he made his will, or that he did not, on January 19, 1904, the date of his will, have the mental capacity to make an intelligent disposition of his property; nor does it appear that he was drugged, restrained, unduly influenced, or even sick at the time he made his will, or that he was ever attended by a physician. "The fact that a man is upon his deathbed when he executes a will is, of course, no argument against its validity. The same clearness of comprehension and ability of expression which is required to enable a man to enter into a contract need not exist to enable him to make a valid will.” Matter of Seagrist's Will, 1 App. Div. 620, 37 N. Y. Supp. 500.

Some evidence was given that the testator was filthy about his person, eccentric, often talked of his schooldays and his experiences as a teacher, frequented the cemetery and read the inscriptions on the stones, read the Bible a great deal, talked to himself, recited verses of poetry, hated tobacco, in a store sang a song condemnatory of tobacco habit, and claimed that some one attempted to rob him when he lived alone. But not one word of evidence is given in contradiction of the testimony of the two subscribing witnesses as to testator's condition at the time he made the will. Concede all the foregoing facts to be

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