In re Rosenstiel's Will (44 Fla. Supp. 92, 1976)

FRANK B. DOWLING, Circuit Judge.

Order revoking order admitting second codicil to probate and letters of administration: This cause came on for hearing before the court on the petition of Southeast First Naional Bank of Miami, as personal representative of the estate of Lewis S. Rosenstiel, deceased, joined by Maurice C. Greenbaum, trustee of an inter vivos trust, and Elizabeth Carol Rosenstiel, daughter of the decedent, for revocation of probate of the second codicil to the last will and testament of Lewis S. Rosenstiel, deceased, and to revoke letters of administration issued by this court to Cathy Finkelstein and James Finkelstein, as co-personal representatives.

Answer to the petition for revocation of probate has been filed by Cathy Finkelstein and James Finkelstein, as respondents to the petition for revocation.

Lewis S. Rosenstiel died at Mt. Sinai Hospital, Miami Beach, on January 21, 1976 at the age of 84. At the time of his death he was a multimillionaire, a giant in business, a benevolent philanthropist, and devoted husband and father. He left a last will and testament and a first codicil thereto that were admitted to probate by order of this court on January 26, 1976. By his last will and testament, Mr. Rosenstiel appointed the First National Bank of Miami as executor of his estate in Florida and trustee of a trust created by him in item four in his will in behalf of his stepdaughter, Diane Katleman Deshong. He furthér provided that in the event his estate should require administration in any jurisdiction other than Florida, he then nominated Maurice C. Greenbaum and Wilbur Duncan as executors in such other jurisdiction or jurisdictions, and if they failed or were unable to qualify as such in those jurisdictions, they were given the power to designate by appropriate instrument such person or trust company having trust powers as they might select to act in that capacity.

Letters of administration were issuéd to Southeast First National Bank of Miami as the sole personal representative of the estate of the decedent on January 26,1976.

On January 28, 1976 an amended petition for administration was filed in this estate by Cathy Finkelstein and James Finkelstein, who alleged that they were entitled to be appointed personal representatives of the decedent’s estate by virtue of a codicil to the decedent’s last will and testament dated December 6, 1975 and prayed to be so appointed as co-personal representatives. In a summary proceeding the codicil of December 6, 1975 was presented for probate together with proof thereof on January 28, 1976. This court entered its order admitting the said second codicil to probate and its order appointing Cathy Finkelstein and James Finkelstein as co-personal representatives with the Southeast First National Bank of Miami.

The second codicil dated December 6, 1975 purported to appoint Roy M. Cohn, an attorney at law of New York, Cathy Finkelstein, a granddaughter of the decedent, and her husband, James Finkelstein both of New York, as additional executors and trustees of his last will and testament. It is noted that this second codicil did not restrict the appointment to the decedent’s estate in Florida, nor did it make reference to the appointment of co-personal representatives in other jurisdictions in any manner similar to the provision of the last will and testament with reference to the appointment of executors and trustees. Roy M. Cohn, being a non-resident of Florida and not related to the decedent, did not seek appointment as personal representative in this state and letters of administration as co-personal representatives were issued only to Cathy Finkelstein and James Finkelstein, her husband.

Notwithstanding his failure to qualify as a personal representative in Florida, if the second codicil be a valid testamentary instrument, Mr. Cohn would be qualified to serve in the capacity of trustee of the trust created in item four of the will, and by virtue of said second codicil, would possibly be qualified to serve as personal representative in other jurisdictions where the decedent’s estate would have to be administered by virtue of substantial holdings in other jurisdictions.

The petition for revocation of the order admitting the second codicil to probate alleged that the same was executed by the decedent at a time when he lacked testamentary capacity and that the alleged execution thereof had been secured by Roy M. Cohn through misrepresentation, trickery and fraud upon Mr. Rosenstiel. The respondents deny these allegations, alleging that the decedent possessed testamentary capacity ón the 6th day of December 1975 and executed the second codicil freely and voluntarily with full understanding of the nature and the consequences of his act.

From the extensive testimony and documentary evidence offered by the parties to this cause, the court finds that Mr. Rosenstiel had suffered a stroke in 1971 which left him impaired physically to the extent that he could not walk without assistance and that his speech was at times slurred and difficult. Notwithstanding this disability, Mr. Rosenstiel continued to follow his social and business activities although at times a fairly sick man up to September of 1975. At that time he was at his farm place in Greenwich, Connecticut when he began to suffer abdominal discomfort of a serious nature. He was flown to Miami by private plane and almost immediately thereafter was admitted as a patient to Mt. Sinai Hospital, experiencing almost continuous vomiting episodes. His hearing was poor and his eyesight was severly impaired from previous surgery. At the time of his admission to Mt. Sinai and until his death on January 21, 1976, he suffered from prostate cancer, diabetes, high blood pressure, kidney failure, uremia, anemia, metabolic blood disorder, and atrial fibrillation, leading to episodes of heart failure. On the early morning of September 27, 1975, Mr. Rosenstiel suffered four convulsions, and in October 1975 a brain scan revealed moderately advanced cortical atrophy and Alzheimer’s Disease, causing pre-senile dementia. On October 17, 1975 one of Mr. Rosenstiel’s physicians, Dr. Scherr, entered a medical order that the nurses and attendants were not to permit Mr. Rosenstiel’s visitors to engage him in business discussions or decisions.

During his terminal illness at Mt. Sinai Hospital, Mr. Rosenstiel was attended by four physicians, Doctors Ronald Scherr, Eugene Rosenberg, Harold Reed and Gerald Steinberg, who treated him for the disorders and disabilities previously enumerated. Each of these doctors testified that in their medical opinion Mr. Rosenstiel lacked the ability to manage or conduct any type of business or personal matters. He was, during this period of time, constantly found to be lethargic, confused, disoriented and suffering from severe mentál obtundation. Two of his physicians, Doctors Reed and Rosenberg, visited and examined Mr. Rosenstiel on the morning of December 6, 1975,' and both testified that in their medical opinion he lacked the mental ability to conduct ány type of business or personal matters on that date. Nó medical testimony as to the mental or physical condition of the decedent at or about the time of the execution of the alleged second codicil has been presented by the respondents.

The court further finds that Mr. Rosenstiel was constantly attended by registered nurses and nursing attendants. Mrs. Adele Rosen and Tricide Philogene, both registered nurses, were on duty with Mr. Rosenstiel on December 6, 1975, as was Thomas Springer, a male attendant. The nurses and the attendant have testified that at that time his level of comprehension was so poor that he could not discuss or explain his symptoms or ailments to his doctors or nurses, that he could not carry on a conversation with anyone, that he was confused as to person, time and place, and from their observation of him, he was unable to engage in any business decision or transaction.

During this morning of December 6, 1975, Mr. Roy M. Cohn, in company with his friend, David Tackett, came to Mr. Rosenstiel’s room at the hospital and stated to the nurse Philogene that he had a document that he wanted Mr. Rosenstiel to sign and for them to witness that related to Susan Rosenstiel, a divorced fourth wife of the decedent, and litigation still pending between her and Mr. Rosenstiel. The nurses and attendant refused to witness any document on the grounds that it was against hospital policy for them to do so, and also because Mr. Rosenstiel was in no condition to transact any business. Upon urging, the nurse Philogene advised Mr. Cohn that she would go to the hospital administrator and get him to come up and decide if the witnessing of the document should take place, and she left the room. The attendant, Thomas Springer, testified that when Mr. Cohn came in to the room he went over to the bed and talked to Mr. Rosenstiel and said, “I have a paper here I would like to get signed today to terminate the affairs of ‘Suzie’ ”. Mr. Springer further testified that Mr. Cohn had brought up the affair of “Suzie” before he was asked to sign the paper, that he was telling Mr. Rosenstiel about “Suzie”, and that things had not been going too well for her and there was a possibility that she was going to jail, and that this (meaning thé paper) will take care of it. Mr. Springer further- said in his testimony that Mr. Cohn said to Mr. Rosenstiel, “You know all of these things, Lew. She has not got a leg to stand on. This will take cáre of it once and for all. It will bé finished.”

This testimony is corroborated by the nurse Philogene. Mr. Springer suggested to Mr. Cohn that if any papers were to be signed they should contact Mr. Joseph Pearlman who was at Mr. Rosenstiel’s home and who was a counsellor and advisor to Mr. Rbsénstiel ovér á period of many years. Mr. Péárlmán was called at the Rosenstiel residence and was told that some gentlemen were there to have some papers signed by Mr. Rosénstiel. At no time was Mr. Pearlman advised that the paper to be signed was a second codicil to Mr. Rosenstiel’s last will and testament. Mr. Pearlman asked to speak tó Mr. Rosenstiel and Rosenstiel is said to have stated over the phone that “Roy Cohn wás doing something for him which was nobody’s damn business and to forget it.” iThat concluded the telephone conversation with Mr. Pearlman. At that time Mr. Springer refused to have anything to do with the transaction, left the room, and entered the hall outside the door, leaving the door partly open. Mr. Rosenstiel, Roy M. Cohn and David Tackett were the only persons then in the room. Mr. Springer testified as he left the room that he saw Mr. Cohn arranging for Mr. Rosenstiel’s signature on a paper. Although he was in the hall by the side of an open door, he did not hear the codicil read to Mr. Rosenstiel, nor did he hear any explanation from Mr. Cohn to Mr. Rosenstiel of the nature of the document that he was signing as being a codicil to his will. About that point of time the nurse Philo?ene returned to the room with the hospital administrator, Mr. Babcock. When Mr. Babcock inquired if he could be of assistance, he was tnld that they did not neéd him, that they were iust there to visit Mr. Rosenstiel as a social call, and there was no business to be transacted, whereupon Mr. Babcock immediately left. The nurse Philogene further testified that after Mr. Babcock left and before Roy Cohn and David Tackett signed the document as witnesses, Mr. Cohn then asked her again to be a witness to the signature of Mr. Rosenstiel, although she had not been present in the room at the time the writing by Mr. Rosenstiel had been placed on the document. When she again refused, then Mr. Cohn and Mr. Tackett witnessed the paper.

The purported signature of Mr. Rosenstiel upon the second codicil has been described as some “squibbly lines.” Certainly an examination of the same discloses nothing more than some lines on the paper at the place for the testator’s signature. No discernable letter of the alphabet appears. While demonstrating the debilitated physicial condition of the decedent, this of itself would not invalidate the document as a testamentary writing. It is a sound, lucid and understanding mind, not a sound body, that determines the validity of a testamentary document. All that the law of Florida requires in that respect is that the testator make his writing upon the document at a time when he possessed testamentary capacity, with full knowledge of the contents of the document and the nature of the same, and that he sign it in that manner with the intent to execute a testamentary instrument. The fact that it is made with an “X” or other scrátching or scroll is immaterial if the other elements of thé lawful execution of a testamentary document are present. In re Estate of Williams, Supreme Court of Florida, December 15, 1965; 182 So.2d 10.

In addition to the medical testimony and the testimony of the nurses and attendants, additional testimony as to Mr. Rosenstiel’s testamentary capacity has been presented by both the petitioners and the respondents through lay persons, long-time friends, and business associates of the decendent. The testimony of these persons is at best conflicting. Professor Leonard J. Emmerglick, who chaired the Rosenstiel Chair for constitutional law at the University of Miami Law College, and a long-time personal friend and confident of Mr. Rosenstiel, testified that at the time of the execution of the codicil and before and after the same, Mr. Rosenstiel was unable to recognize him when he came to visit until his identity was made known. Professor Emmerglick was a regular visitor to the hospital during Mr. Rosenstiel’s last illness and saw him frequently. He testified that in his opinion Mr. Rosenstiel was confused, disoriented, unable to recognize his friends or family without suggestion from others as to identity, and in his opinion was incapable of conducting any business affairs at the time in question.

In February 1975 Mr. Rosenstiel was to enter the hospital and at that time he had great concern over his survival. He called his friend, Professor Emmerglick, to have the professor’s secretary write some letters for him to his friends and to members of his family. The letters were dictated by Mr. Rosenstiel to the secretary who typed them, and upon Professor Emmerglick’s recommendation to Mr. Rosenstiel, it was agreed that the letters would not be mailed to whom they were addressed but would be retained by Professor Emmerglick to be mailed at an appropriate time which he, the professor, understood to be upon the death of Mr. Bosenstiel. It is of significance to note that Mr. Rosenstiel wrote letters of farewell to his wife, his daughter, his step-daughter, to his beloved friends, Louis B. Nichols, Professor Emmerglick, and others, but no letter was addressed to Cathy Finkelstein, his granddaughter, or her husband, James, nor was a letter addressed to his attorney and friend of some 30 years, Roy M. Cohn. Yet it was these three people, whom he did not remember with letters of farewell, that the respondents urge the court to believe that Mr. Rosenstiel chose to be the majority of those he would name to be the administrators and trustees of his multi-million dollar estate.

The respondents have urged that the reason for the addition of Mr. Roy M. Cohn, Cathy Finkelstein, and James Finkelstein as additional executors and trustees was Mr. Rosenstiel’s express desire that he wanted Roy M. Cohn because he was a “fighter”; that he would look after and protect the interest of the daughter, Elizabeth Carol Rosenstiel. It is represented that the Finkelsteins were joined because Cathy and James would be good for Elizabeth Carol Rosenstiel and look after and protect her interests. An examination of the last will and testament of Mr. Rosenstiel, in the light of the second amended codicil, clearly discloses that those who prepared the second amended codicil had no knowledge of the contents of the will, or of Mr. Rosenstiel’s testamentary plans for the disposition of his vast estate. The argument presented loses its substance and weight when the will discloses that the only bequest made to the daughter, Elizabeth Carol Rosenstiel, was the personal furniture, furnishings and household possessions in the Greenwich, Connecticut home which constituted an infinitesimal portion of the testator’s estate. Referring to the appointment of additional trustees, an examination of the last will and testament discloses that the only trust in which they could serve in a supervisory capacity was the trust created in item four which was for the benefit of Diane Katleman Deshong and in which the daughter, Elizabeth Carol Rosenstiel, only had a contingent remainder interest. So with respect to the interest, welfare and protection of the daughter by the co-executors and trustees, the last will and testament disclosing the testamentary dispositive plan of the testator indicates that there was nothing in the administration of the estate for Mr. Cohn to fight for, except the possession of the personal property in the Connecticut home and nothing for the trustees to oversee and administer in so far as the daughter, Elizabeth Carol Rosenstiel, was concerned. The entire residual estate is poured over into the trust created by Mr. Rosenstiel during his lifetime in which he and Maurice C. Greenbaum were the trustees and over which Maurice C. Greenbaum appears to be the sole remaining trustee after the death of Mr. Rosenstiel. Neither Mr. Cohn nor the Finkelsteins can act as trustees of this inter vivos trust. Here lies the bulk of the Rosenstiel fortune and here is the source of the future interest, maintenance and welfare of the daughter, Elizabeth Carol Rosenstiel. Had it been Mr. Rosenstiel’s desire that Mr. Roy M. Cohn and the Finkelsteins be placed in a position to act as trustees for the protection and benefit of the daughter, it is in the inter vivos trust that they would have been named as co-trustees and not as executors of a bequest of household furnishings and as trustees of a trust created for the benefit of the stepdaughter, Mrs. Deshong.

Louis B. Nichols, with a long career in government, public and charitable callings and in business, a close personal friend, consultant and confident of Mr. Rosenstiel, testified that on December 8, 19'75 two days after the execution of the codicil, he had a telephone conversion with Mr. Rosenstiel that lasted about five minutes; that Mr. Rosenstiel was very sharp and showed perfect comprehension of what he was saying. He was of the opinion that Mr. Rosenstiel had excellent recall of past events and that his conversation was lucid and clear, and as a result of the conversation on that day, he felt that Mr. Rosenstiel was in a cheerful mood and seemed to be his old self.

Mr. John Beemer, who worked for Mr. Rosenstiel for 40 years as his executive assistant, testified that he talked with Mr. Rosenstiel by telephone in December 1975 and discussed with him a zoning question relating to Mr. Rosenstiel’s property in Connecticut, and at that time Mr. Rosenstiel was lucid, understood the conversation, the topic under discussion, and told Mr. Beemer to find out what acreage was involved and to get in touch with Frank Lennon, an attorney in Greenwich, and report back to him.

Testimony of Mr. Victor Aldridge disclosed that he visited with Mr. Rosenstiel, discussed business matters with him; that Mr. Rosenstiel was clear, lucid and engaged in normal conversations. Mr. Aldridge had been an associate of Mr. Rosenstiel for a period of approximately 15 years.

Notwithstanding the conflict in the testimony of the lay witnesses as to the competency of Mr. Rosenstiel, if at the time of the execution of the codicil he, even in part, was alert, very sharp, had perfect comprehension, excellent recall of past events, lucid and understood the topic under discussion, it is almost beyond comprehension that Mr. Rosenstiel in his hospital bed with all the events of the morning of December 6, 1975 taking place in his immediate presence, would have remained mute, speaking to no one present, and giving no directions or expressing his desires. If he were indeed capable of understanding the events and conversation taking place about him, the only fair conclusion of his understanding is that the document he was being requested to sign related to his divorce litigation with his former wife, Susan, as that was the only document or transaction referred to in the verbal conversation on that occasion while any disinterested party was physically present in his room.

The second codicil was prepared by a party in interest, Roy M. Cohn (physically typed by his law partner, Mr. Bolán). It was presented to the testator for signature only in the presence of Mr. Cohn and a witness procured by him, his friend, Mr. Tackett. After its execution, no copy was left with the testator or given to any person present although Mr. Cohn stated he was leaving a copy of the document in the room. After its execution, Mr. Cohn as an interested party retained possession of the original document until after the testator’s death when it was then produced and first became known to the testator’s family, business associates, and previously appointed executor and trustees.

The court having considered the testimony, the exhibits, and heard the argument of counsel, now finds that on December 6, 1975 the decedent, Lewis S. Rosenstiel, did not possess testamentary capacity and was incapable of voluntarily and of his own free will executing a valid testamentary instrument.

The court further finds from the evidence that Roy M. Cohn misrepresented to the decedent, Lewis S. Rosenstiel, the nature, content and purpose of the document that he offered to Mr. Rosenstiel for execution; that at the time of the placing of the lines upon the second codicil to his last will and testament, Lewis S. Rosenstiel had no present knowledge or understanding that the document related to a codicil to his last will and testament and such execution was not done with a conscious testamentary intent.

It is now, therefore, ordered and adjudged that the order of January 28, 1976 admitting the second codicil to probate be and the same is hereby revoked, annulled and set aside.

It is further ordered and adjudged that the letters of. administration issued to Cathy Finkelstein and James Finklestein as co-personal representatives of the estate of Lewis S. Rosenstiel on January 28, 1976 be and the same are hereby revoked, annulled and set aside.

« # # * *

The attorneys for the respondents filed the following —

POST-TRIAL MEMORANDUM IN BEHALF OF RESPONDENTS

The Second Codicil to the Last Will and Testament of Lewis S. Rosenstiel, Deceased, dated December 6, 1975, was admitted to Probate in this cause by Order of this Court dated January 28, 1976. Revocation of that Probate is now sought by petitioners upon a myriad of grounds, none of which it is respectfully submitted is legally sufficient or factually persuasive.

The said Second Codicil effects no substantive change in the dispositive provisions of the Will nor does it seek to remove any personal representative or trustee therein named. Quite the contrary, for as this Court sagely observed on February 3, 1976:

“There is nothing in this codicil that revokes any portion of the former will and codicil.

“There is no disturbance of any provision in the original will and codicil admitted to probate in any manner whatsoever. It simply adds additional co-executors.”

The petition for certiorari from the order denying the motion to vacate has been dismissed since conclusion of this trial.

Moreover, the co-executors added by said Codicil are neither unusual nor unnatural nominees, but consist of decedent’s granddaughter, her husband, and the testator’s attorney for twenty years (who could not and has not applied for administration here).

The evidence — and lack of evidence — elicited at the trial of this cause is analyzed hereinafter. As for the law, it goes without saying that when making a presentation to this particular Court, it is hardly necessary to review in any detail the applicable cases, but a brief reference to a few of them might not be inappropriate, especially in view of their applicability to specific facts and issues in this proceeding.

“The right or privilege of disposing of property by will is highly valuable, and it is the policy of the law to hold wills good wherever possible.” Skelton v. Davis, 133 So.2d 432, 435 (Fla. 3 DCA 1961). “This, according to the authorities, is particularly true of old people.” In re Starr’s Estate, 170 So. 620, 624 (Fla. 1935).

In recognition of this policy, “(t)he burden of overthrowing a will on the ground of lack of testamentary capacity is a heavy one and must be sustained by a preponderance of the evidence.” In re Kiggins’ Estate, 67 So.2d 918 (Fla. 1953).

In re Wilmott’s Estate, 66 So.2d 465 (Fla. 1953), states the rule as follows:

“The making of a will does not depend upon a sound body but upon a sound mind. By ‘sound mind’ is meant the ability of the testator ‘to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.”

* * * *

“If the testamentary requisites are found, the will may be valid, although executed by one of great age, whose mind is enfeebled, whose body is debilitated, whose memory is failing or whose judgment is vacillating, especially where the will appears to have been fairly made, is not an unnatural one, and apparently was made under conditions not inconsistent with the inference that it emanated from a free mind.’ ”

In accordance with this principle, the court in Starr, supra, reversed the holding below and directed probate of a will executed by

“an old lady, somewhat childish, considerably forgetful, very reticent, who merely wanted to retire into a shell and not even be burdened with talking to others unless it was something especially interesting to her, but with plenty of knowledge of people and things in which she was interested; who did not always answer questions, but could do so intelligently.”

“The principle of law that testamentary capacity is to be judged solely at the time of the execution of the will is irrefragable and no authority need be cited.” Skelton v. Davis, supra. As will be demonstrated below and as is respectfully submitted, at the time of execution of the Second Codicil testator was fully competent and aware of the effect the addition of co-executors would have on the administration of his estate. It was a matter he had considered and discussed with his attorneys for months and it represented his final testamentary wish.

POINT I

EVENTS LEADING TO THE CODICIL

It is clear from the position of all parties and witnesses that no question whatsoever concerning Mr. Rosenstiel’s testamentary capacity existed prior to his entry into Mount Sinai Hospital on Sepember 16, 1975.

Mr. Rosenstiel’s wish to add executors and trustees, and the reasons therefor were set forth by him to Mr. Bolán at Mr. Rosenstiel’s home in Greenwich, Connecticut, at this time when testamentary capacity is not challenged. The meeting in Greenwich dealt with questioning references by Mr. Rosenstiel to advice he had received from Mr. Bolán to the effect that he could not control selection of counsel on the part of his executors and trustees (519-520) [page references to trial transcript or exhibits in evidence]. Mr. Rosenstiel informed Mr. Bolán that in any event he had decided to add executors and trustees (520). He expressed dissatisfaction with the way in which Greenbaum had been handling certain matters for him recently (521-522). He also referred to problems with the Florida bank (522). He said that he wanted Roy Cohn as an executor and trustee (522-524). There was a discussion about naming Louis Nichols, but Mr. Rosenstiel ruled him out on the grounds of age and health (523). In discussing additional names, Mr. Bolán, who had consulted Florida counsel, pointed out that executors acting in Florida must be either Florida residents or blood relatives (522). Mr. Rosenstiel stated that the blood relative got down to “Libby” (his daughter Elisjabeth), or “Cathy” (his granddaughter) (523).

Mr. Rosenstiel stated that Libby should not have the responsibility of being an executor as “she was surrounded by people that were a bad influence on her” and “might continue to have this influence” (523). He said that Cathy and Jimmy Finkelstein “had always been good to his daughter” and “would continue to be good for her and that they would protect her.” (523) Mr. Rosenstiel wanted to add Roy, Jimmy and Cathy as executors and trustees (522-4). Mr. Rosenstiel stated that he did not wish to remove either Mr. Greenbaum or the bank but did not want them to have the final say on his estate (521; 525). Mr. Rosenstiel stated that he did not want Mr. Greenbaum or his family informed of his change in executors and trustees (520). Mr. Rosenstiel stated that there was a will, the trust, and the one or two codicils on insignificant matters (520-521). When Mr. Bolán asked Mr. Rosenstiel to get copies or at least the dates, Mr. Rosenstiel expressed his reluctance to do so because this would involve letting Greenbaum know that he was making this change (520-521).

Pursuant to appointment, Mr. Bolán met with Mr. Rosenstiel on the early afternoon of November 10, 1975, with Mr. Cohn. Mr. Rosenstiel told Mr. Bolán to go ahead with the codicil adding Jimmy, Cathy and Roy (525). He stated again that Jimmy and Cathy would be good for Libby (525-526). Mr. Bolán asked for the dates of the will and codicils and Mr. Rosenstiel said he would see what he could do (526). Mr. Bolán thereafter asked Mr. Cohn to request the dates from Mr. Rosenstiel one further time (527-528). Mr. Cohn reported back that he had done so and Mr. Rosenstiel would not be asking for the dates. Mr. Bolán proceeded to type the codicil in the manner fully described on the witness stand and gave it to Mr. Cohn to have executed on the occasion of Mr. Cohn’s next trip to Miami (528). Mr. Bolan’s testimony was clear-cut and unimpeached in any way.

But we need rely not just on Mr. Bolan’s testimony concerning the views and motives of Mr. Rosenstiel in making this change. Petitioner Greenbaum’s own testimony confirms Mr. Rosenstiel’s motives on each of the points Mr. Rosenstiel raised with Mr. Bolán. Mr. Greenbaum conceded that in the Spring of 1975 there had been strong differences of opinion between Greenbaum and Cohn as to the handling of certain key litigation which was of much importance to Mr. Rosenstiel, and that he had objected “rather strenuously” to Rosenstiel to the suggestion that Cohn act as co-counsel with him (451-452). Greenbaum conceded that Mr. Rosenstiel had questioned Mr. Greenbaum’s judgment “very seriously” (451), and had urged Mr. Cohn’s procedures for handling the matters. This dispute, of course, took place after the Emmerglick letters. Greenbaum’s own version is completely supportive of Mr. Rosenstiel’s reasoning in wishing to add Roy Cohn. Greenbaum further confirmed Mr. Rosenstiel’s problems with and dissatisfaction with the Florida bank, which had been the sole executor until the codicil was executed (452-453). Seymour Roberts, a witness for petitioners, also confirmed the difficulties that were being had with the bank (826). As to Mr. RosenstiePs fears concerning the people surrounding Libby and his preoccupation with taking steps to surround her with protective persons and legal devices, Greenbaum confirmed this point of view almost exactly as Mr. Rosenstiel had expressed it to Mr. Bolán (502-503).

A dramatic illustration of the realization of Mr. RosenstiePs fears, and a clue to the continuing hold on Elizabeth of the influences Mr. Rosenstiel feared so much, took place within the last minutes of this trial. As the only rebuttal witness to appear in person the petitioners called Lorna Kent. Her testimony ranged from insignificant to being helpful to the respondents in that she quoted Mr. Cohn as stating at Mr. RosenstiePs funeral that he “was concerned about Elizabeth’s well being” and . . . “intended to protect her” (837) —a goal certainly consistent with Mr. RosenstiePs wishes. But the real significance in her production just the other day lies in the continuing relationship between Elizabeth and the Kent family. Lorna Kent’s mother, known as “Momma” Kent, has surrounded Elizabeth Rosenstiel for years. She has lived at Elizabeth’s apartment (846). She was at the hospital when Elizabeth visited her father; but although yards away from the door of Mr. RosenstiePs hospital room for a period of months, at no time was “Momma” Kent permitted to cross the threshold of that door, obviously because her influence on Elizabeth was distrusted and rejected by Mr. Rosenstiel (846-850).

For petitioner Greenbaum, combined with Elizabeth as co-petitioner, to close this case with the testimony of the daughter of Elizabeth’s confidant who could not enter Mr. RosenstiePs presence, speaks volumes concerning Mr. RosenstiePs wisdom in making the additions.

Mr. RosenstiePs instructions to Mr. Bolán in not discussing the change he was making and his reluctance to alert Greenbaum to what he was doing by asking for dates of prior instruments, was characteristic of Mr. RosenstiePs way of doing things. He was secretive (725). In a directly analogous situation years ago, Louis Nichols related how he was named an executor in a testamentary document and was given simultaneous instructions to discuss it with no one because Mr. Rosenstiel did not wish another firm of his attorneys to know that there was an additional testamentary instrument which they had not drawn. Mr. Nichols was “cautioned . . . not to disclose this to anybody because there was another will in another lawyers’s office and they did not want anybody to know about the new will. That is a fact.” (724)

Mr. Bolán is an attorney of 25 years experience, much of it in trusts and estates. He worked as a legal secretary with a trust and estates firm during the day, and attended college and law school at night — graduating summa cum laude from each. He has had an impeccable record as a federal prosecutor and a member of the bar. The cross-examination detracted not one whit from the credibility and precision of his testimony.

POINT II

EXECUTION OF THE CODICIL

The codicil as prepared by Bolán pursuant to Mr. RosenstiePs direction was properly executed under Florida law on the morning of December 6, 1975. The two attesting witnesses, David Tackett and Roy Cohn, testified that the codicil was displayed to Mr. Rosenstiel and read to him word for word on that morning. They testified that Mr. Rosenstiel stated that it was “what he wanted” (70, 16). Both witnesses testified that Mr. Rosenstiel’ asked them to sign as witnesses to the affixing of his signature on the codicil to his last will and testament (16, 71). No other person was present in Mr. RosenstiePs room at the time the codicil was read to him and at the time he signed it and at the time the witnesses executed it (17). Tom Springer testified that he was outside the door and could not hear the reading or any of the conversation (262-263). Springer testified that he and Philogene remained outside the door of Mr. Rosenstiel’s room for from five to seven minutes while Dave Tackett and Roy Cohn were there alone with Mr. Rosenstiel tending to the execution (253).

The issue of the other and totally different paper concerning Susy that was left for Mrs. Blanka Rosenstiel with Springer, will be discussed infra.

No witness disputes the sworn testimony of Tackett and Cohn that the codicil was read to Mr. Rosenstiel, that he understood it and described it as what he wanted, and asked that it be witnessed as it was. At the commencement of this case, when petitioners asked for withdrawal of the codicil to have Mr. Rosenstiel’s signature examined by Robert Vollmer, respondents immediately consented to have this done. Mr. Vollmer could reach no conclusion concerning the writing, as he had no basis for comparison (318). Mr. Rosenstiel’s ability to write was confined to his left hand since his right side stroke several years before, and along with his strength his ability to write became more of a struggle. Although Mr. Vollmer could not reach a conclusion, the witness Hannah Polansky, called by petitioners, confirmed that in 1975 Mr. Rosenstiel’s endorsement on checks was “not legible,” and described how she had to guarantee to the teller where she cashed the check that the signature was that of Mr. Rosenstiel. An examination of respondent’s exhibits C-l and D-l in evidence consisting of certified copies of documents signed by Mr. Rosenstiel in September of 1975 before he entered the hospital and suffered the convulsive seizure,- show the deterioration in his ability to sign legibly and even to a layman’s eye, tie in with the manner of signing on December 6, 1975.

Most significantly, the one conclusion that Mr. Vollmer could reach was completely supportive of the testimony of Tackett and Cohn. He testified that he believed that the pen used by Mr. Rosenstiel for his signature was the same one that Dave Tackett used when he signed as a witness to Mr. Rosenstiel’s signature (320-321). Before Vollmer announced this conclusion, Tackett had testified to that effect (90).

Dave Tackett is an intelligent, young executive, associated with liquor and food businesses operated in several states in the northeast (68, 25). He had known Mr. Rosenstiel for the last couple of years of Mr. Rosenstiel’s life (81, 25). He testified that although ill, he found Mr. Rosenstiel to be of sound mind (71) and “totally coherent” (84). “He made himself completely understood” (85). They discussed matters of business (63). Despite five months of obviously intensive investigation of this case, petitioners have failed to suggest, no less prove, any conceivable motive on Tackett’s part to give other than truthful testimony. He has no interest or stake in the outcome of this proceeding whatsoever. In order to succeed here, petitioners must at a minimum start with the destruction of Tackett’s testimony and credibility and they have failed to even attempt this. The best they could do was to suggest he has too many addresses, and that the address given on the codicil and at the trial is the address he uses as the center location for the receipt of mail as he travels constantly (74-77).

The Joseph Pearlman incident might be discussed at this point. Pearlman executed an affidavit — indeed the only one attached to the original petition to vacate herein. This affidavit was conceived in a conversation Mr. Melvin had with Pearlman -on January 28, 1976 (659-660). The affidavit itself was prepared in Mr. Melvin’s offices the next day. It contains obvious mistakes and misstatements of fact, raising the immediate question that it could not have been carefully reviewed by Pearlman before he signed it. A wrong middle initial is given for Mr. Rosenstiel, and the reference to time spent by Pearlman at the hospital in the afternoon was “three hours,” when it should have been “three minutes.”

Some time after the affidavit was filed, Mr. Cohn learned that Pearlman had said that it was inaccurate and incomplete (667-670). He called Pearlman, who would see him only with Pearlman’s lawyer present. Pearlman had no counsel present at the time of the Greenbaum-Melvin affidavit of January 29, 1976. It developed that Pearlman had indeed spoken to Mr. Rosenstiel on the telephone minutes before the codicil was executed, and that Mr. Rosenstiel had told him that Roy Cohn was doing something for him which was “nobody’s damn business” (638). This conversation was, of course, heard by Tackett and Cohn, who were at Mr. Rosenstiel’s bedside when Tom Springer placed this call to Joseph Pearlman and when in Springer’s presence Mr. Rosenstiel spoke to Pearlman just before the execution.

Petitioners seem to now suggest that Pearlman’s account of a telephone conversation with Mr. Rosenstiel just prior to the signing of the codicil is a recent contrivance by Pearlman in some inexplicable way connected with the fact he is among many dozens who have filed claims against the estate. To support this, petitioners point to the fact that the January 29, 1976 affidavit does not mention the telephone call and seems to suggest that it therefore never took place. But the proof of the telephone call between Pearlman and Rosenstiel comes not from Tackett, Cohn or Pearl-man himself, but from petitioners’ own witness, Tom Springer. Springer testified that indeed he was the one who placed the telephone call to Mr. Pearlman at the Rosenstiel residence from Mr. Rosenstiel’s hospital room (247-248). Springer confirmed the testimony to this effect from both Tackett and Cohn (73, 55). Springer flatly confirmed the fact that Mr. Rosenstiel spoke with Pearlman over the telephone as described by Tackett and Cohn just before the signing. Tackett, Cohn and Pearlman recall what Rosenstiel said on his end of the conversation, but Springer is unable to recall what Mr. Rosenstiel said, other than concluding after the conversation that it was all right for the paper to be signed (248). Pearlman did not fantasize this telephone conversation with Mr. Rosenstiel. It was initiated by Tom Springer himself.

Other omissions from the Pearlman affidavit included the fact that Mr. Melvin displayed the codicil to Pearlman who described the signature as looking just like the way in which Mr. Rosenstiel had been endorsing checks.

POINT III

THE "FRAUD” THEORY

Among petitioners’ bag of theories is one they describe as “fraud.” Apparently they mean to suggest that what Mr. Rosenstiel thought he was signing on December 6, 1975 was not the codicil he had told Bolán to prepare, but some paper requiring his signature dealing with his former wife, Suzy. The beginning and end of this theory lies in obvious and demonstrable confusion and cross-contradiction by Tom Springer and Trudy Philogene, both of whom are certainly well-meaning and not wilfully misrepresenting events. There was indeed a paper bearing on a case seeking a payment from Mr. Rosensteil for services rendered to Susy. This paper was not a one page codicil to be signed by Mr. Rosenstiel, but was seven pages of a statement by a Miami process server, Steve Hunter, Jr., with attachments. The paper claimed service on Mrs. Blanka Rosenstiel (Respondents’ Exhibit A). It in no way called for, required or had any place for any signature by Lewis Rosenstiel, nor did it refer to any contact with him (Respondents’ Exhibit A).)

On November 11, 1975, the Nizer firm, which had represented Susy, was suing for services rendered to her, served papers including this Hunter statement on Mr. Cohn’s law firm in New York (66). Daniel Driscoll, one of the partners who handled Mr. Rosenstiel’s matters, submitted reply papers in which he disputed legal service under the laws of New York by virtue of Hunter’s contact with Mrs. Blanka Rosenstiel. But no contravening affidavit concerning this was submitted by Mr. Driscoll. On December 5, 1975, at 12:30 p. m., hours before Mr. Cohn flew to Miami, the Nizer firm delivered to Saxe Bacon legal papers containing, among other things, a demand for a formal contravention of the events set forth in Hunter’s statement concerning his attempt to serve Mrs. Blanka Rosenstiel (67). Driscoll asked Cohn to take this Hunter statement to Miami and make sure that Mrs. Blaiika Rosenstiel received it and reviewed it in case her version became necessary.

It was this paper that Cohn told the nurses about (30, 31, 33). It wás this paper, dealing with Susy’s case, that Cohn physically left with Springer before departing that day with the request that it be given to Mrs. Blanka Rosenstiel (33). It is this paper and the discussion concerning it that Springer confused with the codicil situation. Springer concedes that at no time was he present in the room, nor did he hear any of the conversation during the five to seven minutes that Mr. Rosenstiel handled the execution of the codicil. Any doubt that the paper involving Susy was exactly as represented by Cohn, namely, the seven page paper left with Springer for Mrs. Blanka Rosenstiel, was disspelled the last morning of the trial. Petitioners stipulated that Mrs. Rosenstiel would testify that the paper, identified by Cohn (Respondents’ Exhibit A) was precisely what was delivered to her from the hospital room following her return shortly after December 5, 1975. Springer made this confusion on his part all the more clear when he confirmed that the paper Cohn left, which Springer thought Cohn said was a copy of what Mr. Rosenstiel had signed, was left by Cohn with Springer open and half folded. Thus, it was plain and obvious for one and all to see that it was nothing signed by Mr. Rosenstiel or even calling for his signature. Far from concealment or confusion, Cohn had readily asked Springer to make sure that the opened document he left was given to Mrs. Blanka Rosenstiel, which indeed it was.

It is undisputed that Mr. Cohn requested Mr. Springer and Mrs. Philogene to be “witnesses.” Obviously they could not have been valid witnesses to the codicil unless the testator had advised them that the document was a codicil to his will and unless he requested them to sign as witnesses with that knowledge. A fortiori, had they in fact agreed to act as witnesses it would have been necessary that they be fully informed as to the nature of the document to be signed. What sense of logic, therefore, would have ever impelled Mr. Cohn to tell them, as is claimed, that the paper related to Susy when, had they agreed to witness the instrument, they would have had to have been informed that the document was in fact testamentary in nature? It is inconceivable that Mr. Cohn would have tried to deceive them as to the inconsequential nature of the instrument yet at the very same time ask them to act as witnesses under circumstances in which they would have had to know he had deceived them. The only answer is that Springer and Mrs. Philogene are confusing the two matters of business on the agenda that day, i.e., (1) the document relating to Susy’s attorneys’ suit against the decedent which he left for Blanka; and (2) the codicil which Mr. Cohn asked them to witness. That confusion exists only in their minds. It was never created by Mr. Cohn — and an examination of the paper relating to Susy’s case (Respondents’ Exhibit A) shows it did not and could not be intended for Mr. Rosenstiel or his signature. The nurse’s confusion and petitioners’ theory is finally established by the fact Cohn left Respondents’ Exhibit A in open, unsealed form — not even in an envelope — so that cursory examination of it by Mrs. Rosenstiel, for whom is was intended, or Springer, or anyone else through whose hands it passed in open form, would show it was not a copy of anything signed by Mr. Rosenstiel.

Springer and Philogene contradict each other on virtually every other event in which they both participated concerning this incident. Springer correctly stated that only Tackett was with Cohn (245). Philogene insisted right through the trial that there were “two men” with Cohn (168). Philogene stated that she greeted Cohn when he first arrived and summoned Springer (147). Springer is very clear that it was he who greeted Cohn and that Philogene appeared only later (239). Philogene testified that after everything was over and Mr. Babcock had left the room, Cohn was still in the witnessing process and asking her or Tackett to sign as a witness (150). Springer completely contradicts this and states that the execution of the paper was no longer dealt with or referred to after he and Philogene reentered the room (254, 255). The logic of the occasion totally supports this. If there was some kind of deception or fraud being practiced, it would have been the easiest thing in the world for Cohn to ixclude the nurses from the room, just as Greenbáum had done on September 27, 1975. Instead, Cohn asked Springer and/or Philogene to witness Mr Rosenstiel’s signature to the document, knowing full well that a codicil is invalid unless the testator acknowledges it in front of the witnesses as a codicil to his last will and testament, and unless he asks both of them to sign as witnesses to his signature to a codicil to his last will and testament.

This and only this constitutes petitioners’ “fraud” theory. Far from approaching the requirements of fulfilling a heavy burden of proof, petitioners’ presentation or lack of presentation on this point does not even rise to a level warranting serious consideration.

POINT IV

MENTAL COMPETENCY

The bulk of the medical testimony adds little of relevance to the issue here, as it deals with the proposition that is axiomatic: Mr. Rosenstiel was 84 years old at the time of his death, and had been physically deteriorating for several years since a stroke paralyzing a portion of his right side. He also had a series of complicating illnesses of varying degrees Of seriousness. He also spent the last few months of his life in Mount Sinai Hospital. All of this is not in dispute, nor is it the point. The point is whether or not Mr. Rosenstiel had the basic capacity to execute a codicil adding some executors and trustees to those previously named by him, and thus to carry out the exact instructions he had given in his regard several months before when no one challenges his testamentary capacity.

Although Mr. Rosenstiel was 84, as one of the doctors conceded and as was obvious from all of the witnesses, he was a man of extraordinary mental strength and will. It is one thing to chart somebody on reasonable medical probabilities and it is another thing to examine reality. If there is not the comparative basis of the testator’s actual words and conduct, then, reasonable medical probabilities would be of much more importance than they are in a case such as this, where the Court has before it testator’s fashioning of the codicil, and his concern with matters basic to him.

What this gets down to is Mr. Rosenstiel saying and doing things which the doctors say he should not have been able to say and do based upon their studies and projections. We start with the proposition that Mr. Rosenstiel was not fond of doctors, and did not hesitate to tell doctors and nurses to get away from him and leave him alone. Dr. Scherr, (P. 362); Dr. Reed, (P. 408); and Dr. Rosenberg, (P. 296). He also took issue with nurses when they disputed his report on whether he was hurting (P 593). The opinions of the doctors herein are at variance with the hospital records as well as with the patient’s own conduct. Dr. Reed, one of the only two doctors who saw Mr. Rosenstiel on December 6, 1975, can hardly give a credible opinion that Mr. Rosenstiel did not possess lucidity and capacity on that date when he was walking around, conversing, and so far improved from the condition on September 27th, when Dr. Reed found his condition to be satisfactory from a standpoint of understanding and capaóity. Dr. Réed was not able to state any date when he félt Mr. Rosenstiel first became incompetent (385).

The doctors’ opinions are at variance with each other. For example, Dr. Scherr believed that on September 27, 1975, Mr. Rosenstiel was comatose and totally incompetent (348). Dr. Reed who saw him the very same day believed that by 11 a.m. that morning Mr. Rosenstiel had recovered to a point that he responded to Dr. Reed’s tests to the extent that Dr. Reed was perfectly comfortable acting as a witness to Mr. Rosenstiel’s written assent to a multi-million dollar transfer on that morning (405-507). Dr. Reed did not-agree with Dr. Rosenberg’s notation that Mr. Rosenstiel had improved on December 5, 1975, (423). Despite various inferences as to Mr. Rosenstiel’s difficulty in hearing nurse Philogene, who was on duty December 6, 1975, testified: “He could hear very well. Anytime you talked to him he understood” (154). The only doctor other than Dr. Reed who was with Mr. Rosenstiel on December 6, 1975, was Dr. Rosenberg, a fill-in physician who was not Mr. Rosenstiel’s regular doctor. Dr. Rosenberg conceded that Mr. Rosenstiel had wanted “to be left alone” (296) and that he had difficulty in getting answers from Mr. Rosenstiel. Dr. Rosenberg had a minimum basis for making any kind of a judgment as to Mr. Rosenstiel’s lucidity or competence when dealing with those close to him. Dr. Rosenberg conceded that he was never present when Mr. Rosenstiel talked to anyone else or over the phone (299).

Dr. Rosenberg’s own contemporaneous notes on the hospital chart water down considerably the opinion he expressed on the witness stand. Dr. Rosenberg stated that in those notes “I make the comment that he was doing well on that particular day” — and that with reference to “competency” and “lucidity” that day, “in that note I indicated he was more alert today” (298). Dr. Rosenberg stated that this increased alterness represented a comparative change that had occurred over a several day period. Indeed, the improvement was so marked that it was confirmed on December 5, 1975 to Dr. Utz, the consultant from Mayo Brothers. Perhaps the most knowledgeable professional observer of Mr. Rosenstiel’s condition was Tom Springer, who had been Mr. Rosenstiel’s attendant for three years prior to his death. Tom Springer testified that Mr. Rosenstiel recognized Roy Cohn when he entered (266). Tom Springer detailed events and conversations, including Mr. Rosenstiel’s telephone call with Joseph Pearlman. He described Mr. Rosenstiel as “alert” on the morning of December 6th (258). He flatly contradicted the doctors and stated that there were times when Mr. Rosenstiel was “lucid” and “. . . knew what was going on . . .” (260). Springer could not have been plainer, in describing Mr Rosenstiel’s condition at the key period in this case:

“Let’s say at this time Mr. Rosenstiel was at the height of his convalescence in the hospital from September when he had the seizures or whatever or whatever the medical term was, until the time of his death, let’s say from Thanksgiving to that time he was at the height of his convalescence in the hospital.

Q. From Thanksgiving on?

A. Until around the 10th of December, let’s say.” (259; see also 260).

The only non-hospital witness called by petitioners on the issue of competency was Leonard J. Emmerglick. Prof. Emmerglick described Mr. Rosenstiel’s active and alert mind and complete mental capacity. Prof. Emmerglick could not be specific as to the date on which he felt Mr. Rosenstiel had begun to fail and had lapsed into “cryptic” conversations (219) and at times did not recognize him.

Counsel for petitioners flatly repeatedly misrepresented to this Court on summation and to various witnesses in questions phrased to them on cross-examination that Prof. Emmerglick stated that after November 1, 1975, Mr. Rosenstiel had gone completely to pieces and could not even recognize his dear old friend Prof. Emmerglick. This was a total misrepresentation. The earliest date mentioned by Prof. Emmerglick as his estimate was “late November” — not November 1st as repeatedly stated by counsel. Prof. Emmerglick made it clear that up until some time in late November Mr. Rosensteil retained his capacity (215). Despite this, counsel emphatically and repeatedly misquoted this November first date to the Court and witnesses. For example, to Mr. Nichols: “Are you aware of the fact that after November the 1st, 1975, his old friend, Mr. Rosenstiel, was never again able to recognize Prof. Emmerglick when Prof. Emmerglick came tó the hospital on a more or less weekly basis to try to chat, try to visit, try to cheer him up?” (717). Mr. Nichols found that “hard to believe” (717), as well he might since counsel lost a month or two along the way. Emmerglick was unable to fix a date thereafter when he thought that capacity diminished, and cóuld not focus in on December 6 or any other date around then, other than to iay he tried to visit periodically (214). Prof. Emmerglick went further than that: When this Court asked him, with reference to his visits to Mr. Rosenstiel until the time of Mr. Rosenstiel’s death, whether Prof. Emmerglick believed that Mr. Rosenstiel was “conscious” that Emmerglick “had the letters under his [Rosenstiel’s] direction to you” (200). Emmerglick had no difficulty in assuring the Court that Mr. Rosenstiel always retained that conscious thought in Emmerglick’s opinion (200). Further, when asked whether he heard Mr. Rosenstiel speak on the telephone with Mr. Nichols, Emmerglick went further and said that between some time between mid-October and Mr. Rosenstiel’s death on January 21, 1976, it was Mr. Rosenstiel himself who told Emmerglick that Mr. Rosenstiel had spoken with Lou Nichols (218).

Mrs. Polansky, the only other non-hospital witness for petitioners, did not testify on direct examination as to Mr. Rosenstiel’s capacity. On cross-examination, although she stated that for the most part, Mr. Rosenstiel was “out of it,” nevertheless said, when it came to a question of important business discussions between Mrs. Polansky and Mr. Rosenstiel during the week of December 19, 1975 — two weeks after the codicil had been executed — Mrs. Polansky had no doubts about Mr. Rosenstiel’s capacity and understanding. She described a conversation in which she asked him whether he wanted to scuttle the book. Mr. Rosenstiel refused and instead insisted that Mrs. Polansky “keep your promise” to have his economic thoughts on library shelves of universities. There was no question but that “he understood me” (280). Mrs. Polansky described the visit of Cathy and Jimmy Finkelstein to the hospital at this same period (284).

As to the Christmas Eve tape produced by Mrs. Polansky in this case, it was adduced originally by the respondents on deposition. Considering the circumstances of its having been made within the last month of his life, at the end of the day, in the evening, when Mr. Rosenstiel was out of his hospital room visiting Mrs. Polansky’s hospital room, the responses, the song recollections and the various statements made by Mr. Rosenstiel totally belie the picture of someone who was virtually catatonic, without memory and incapable of initiating a request. Indeed, it was almost amusing to note how Dr. Rosenberg had to modify his testimony as to what Mr. Rosenstiel could not do in Order to explain exceptions for the many things which the tape showed he did do despite medical prognosis that it was impossible.

Granting the testimony of the hospital people referred to above, none of whom other than Springer had a long and frequent relationship with Mr. Rosenstiel — stack it up against the unequivocal testimony as to lucidity, understanding and capacity by one long-time friend and associate of Mr. Rosenstiel’s after another. Direct conversations and dealing with Mr. Rosenstiel concerning business matters, in which he displayed his complete consciousness and alertness before, during and after the codicil and the signature, was given by Lou Nichols, Nora Hayes, John Beemer, Victor Aldridge, Maurice Benjamin, and above all by petitioner Greenbaum himself, who cónfirmed conversations with Mr. Rosenstiel just before and just after December 6 1975, in which actual legal cases were discussed and concerning which Mr. Rosenstiel asked questions and offered opinions — one of the conversations having been a call initiated and placed by Mr. Rosenstiel to Mr. Greenbaum just day