Delafield v. Parish (25 N.Y. 9, 1862)

Davies, J.

This is an appellate tribunal, and its ordinary duty is to review the decisions of the courts from which appeals lie to it, solely on questions of law. There is a class of cases, however, where it is incumbent oh us to review questions of fact, and the present cases are of that character. We are called upon, by the appeals taken therein, to affirm or reverse the decree of the surrogate of ¡New York, which on appeal has been affirmed by the Supreme Court of the first judicial district. By that decision the surrogate refused to admit to probate two codicils to the will of Henry Parish, deceased, alleged to have been made by him, one on the 15th of September, 1858, and the other on the 15th of June, 1854.

It appears that Mr. Parish, while in conceded health, in the full possession of all his faculties, and after much deliberation, frequent consultation and discussion with his counsel, on the-20th of September, 1842, made and executed his last will and testament. Although his attention seems to have been afterward, on several occasions, attracted to its provisions, and although he must have been aware that the devise to his wife of two pieces of real estate in the city of New York (one of which was the dwelling-house occupied by them) had been rendered inoperative by the sale of them, and although he was equally conscious that his estate had been greatly augmented, and was constantly increasing by its annual accumulations, yet while in health he intentionally and deliberately declined to make any alteration in its provisions, and for nearly seven years, notwithstanding these and other changes, persistently adhered to it, as originally framed, and executed.

It is seldom that so much intelligent consideration, fixedness of purpose and adherence to conclusions, are evinced in the preparation and execution of a will.

On the 19th of July, 1849, Mr. Parish, while in the apparent enjoyment of full health, was struck with an attack of paralysis, described by the physician as hemiplegia.

Whether or not he had testamentary capacity after that period, has been the subject of the elaborate investigation, and the learned, able, and extended discussions in these cases;

At the time the will of 1842 was made, the testator had no child, and made no provision for any. He never had one. He estimated the total of his estate, real and personal, then to be $732,879. By this will, he gave to his wife $331,000, including the two pieces of real estate subsequently sold by him, and which he estimated at $23,000. To the relatives of his wife he gave specific legacies amounting to $95,000. At the time of his attack, although he had reduced the provision made for his wife, $23,000, by the sale of the two pieces of real estate mentioned, yet he had increased the value of the New Orleans real estate given to her, by an expenditure thereon amounting to $21,500, and by addition to his furniture, paintings, statuary, silver, &c., equal to about the sum of $25,000, all which, by the provisions of the will, were given to her. He had therefore kept good the amount secured to Mrs. Parish by the will, and had enhanced it in the manner indicated, so that on the 1st of July, 1849, it amounted, according to his estimate, to about the sum of $350,000.

He thus, oh grave deliberation, gave to his wife and her relations nearly two-thirds of his whole estate as it then existed. By his will he also gave specific legacies- to various relatives of his own blood, and to personal friends, amounting in the aggregate to the sum of $270,000, and then gave the residue and remainder of his estate to his two only and surviving brothers, Daniel Parish and James Parish. The amount they would have taken, according to the testator’s estimate of his estate, at the date of his will, if it had then taken effect by his death (an event which it is apparent he did not then contemplate as likely soon to happen, being then 54-years of age, and in apparent good health) would be about the sum of $18,-000 to each, less than the amount of the legacies given to each of his sisters. The small sum given to his brothers, in comparison to the amount, given to others, and the language used in the will, as applicable to this residuary devise, are convincing evidence to our minds of the testator’s intention to give permanency to the disposition of his property then made by him, and of his expectation that this residue would ultimately secure to his brothers such an ample portion of his estate as would evince his affection for them, and satisfy them that their just and natural right to share in his estate had been fully recognized by him. His solicitude, in the first place, to make ample provision for his wife, is clearly apparent from the testimony of Mr. Havens. He was not only desirous of securing her such a portion of his estate as would enable her to maintain her established position in society, and supply to her all the wants and luxuries to which she had been accustomed, but he was also anxious that the provision should be so ample that a carping and fault-finding world should so esteem it. As already observed, by his will, he constituted his two brothers his residuary devisees, and declared (and such declaration controls this residuary clause) that he intends his will not only to apply to the property then owned by him, “ but to all that may be thereafter acquired, by purchase, descent, distri button, or otherwise ”

At this time the testator’s income was about $60,000 annually, and his expenses were about $10,000 a year. Without any extraordinary expenses or outlays on his part, the testator must have been aware that his' estate would be augmented by its natural increase by about the sum of $50,000 annually, and this entirely independent of the additions by profitable investments, and other uses of his means, which it is apparent were employed by him to increase his wealth. The inventory of his estate made by him July 1,1849, shows it had increased in seven years, at the valuation he then put upon the various items of his property, about the sum of $200,000; and add thereto the expenditure on. the Union Place property over and above his estimate of its value, $52,000, and the actual increase was over $250,000. He was therefore well aware that, by the terms of his will, these augmentations of his estate would fall into the residuary clause, and go to his brothers. Their portion of his estate, he must have seen, would be munificent, and such as brothers in these circumstances would naturally expect from a wealthy brother, dying without issue, after making ample provision for his widow.

The testator witnessed this augmentation with full knowledge of -its destination, and with the certainty of its continuance and increase, for the period of seven years, without any intimation of a change of his purposes, or expressing any wish to divert it to different objects.

Such was the permanent character of the disposition made by the testator of his estate in full health, and such "his final and settled purpose in reference to it, down to the time of his attack in July, 1849. From thence till his death, in March, 1856, the wife of the deceased was hardly ever absent from his presence, and she and her relatives were his constant companions and attendants, to the exclusion almost wholly of his own relations, with whom up to this period, it would appear, he had always lived on terms of intimacy and cordiality.

Mr. Parish having recovered from the severity of his attack, a codicil was prepared at the suggestion of Mrs. Parish, for him to execute, and which, was executed on the 29th of August, 1849, whereby the testator gave to his wife certain real estate, amounting in value to about the sum of $200,000 The learned counsel who drew this codicil at the request of the devisee, and superintended its execution, having, as he says, fears that others might have doubts of the testamentary capacity of the testator, recommended that it should be re-executed when his health and mind should have improved; and it being supposed that such improvement had taken place, it was accordingly re-executed on the 17th of December, 1849.

In September, 1853, Mrs. Parish and her brother having made an estimate of the estate of Mr. Parish as it then was, and valuing the same at $1,186,960, Mrs. Parish drew up instructions for the disposition of about $500,000" of personal property, and employed the same counsel who had drawn the codicil of 1849, to prepare another for Mr. Parish to execute, disposing of this amount of personal estate, all of which was to be given to Mrs. Parish, except the sum of $52,000 invested in stocks, to be given to certain charities. It was claimed by Mrs. Parish that nearly all of this property was then hers, by virtue of gifts from her husband since his attack, inter vivos, and the nominal title to which had been changed by her from his name into hers. This codicil was doubtless prepared in consequence of the suggestion of the counsel, that grave doubts were entertained of the validity of these gifts inter vivos. A codicil was accordingly prepared (incorporating into it the codicil of 1849), by which personal property amounting to $349,460 was given to Mrs. Parish, and $50,000 to be divided among certain enumerated charitable institutions. It also revoked the appointment of Daniel Parish as one of the executors of the will of 1842, and the legacy of $10,000 given to him by that will.

On the 15th of June, 1854, a third codicil was prepared by the same counsel at Mrs. Parish’s suggestion, and which was executed on that day, which revoked the residuary gift and devise in the will of 1842 to the brothers Daniel and James, and installed Mrs. Parish in their place as the devisee of the whole residue of his estate.

It would seem from the testimony, if Mr. Parish’s signs and gestures were correctly interpreted, that it was his will, at the time of the re-execution of the codicil in December, 1849, to revoke and annul the specific legacies, amounting to the sum of $130,000, given by the original will to the children of his brothers Daniel and James; and it appears he was only deterred from insisting that.it should then be done, by the remark of the counsel, “ that he wished it might not then be done; that it would fatigue and disturb Mr. Parish; that it would require a great deal of deliberationand by the assurance given by the counsel, “ that he could come and do it at some other time.” At the time of the preparation and execution of the codicil of September, 1853, in the numerous interviews and consultations had in reference to it, it does not appear from the testimony that any suggestion was made by the counsel to Mr. or Mrs. Parish in reference to the revocation of these legacies, or that the subject was alluded to by either Mr. or Mrs. Parish At the time of the preparation of the codicil, of June, 1854, in an interview between Mrs. Parish and the counsel, in Mr. Parish’s presence, she again suggested that Mr. Parish wished to revoke these legacies, and the counsel understood Mr. Parish as so desiring; but on a suggestion of the counsel, that “ it w;ould be harsh to do so,” the subject was dropped.

It is apparent, if Mr. Parish had a wish on this subject, and it was correctly understood, it was not carried into effect by those around him, and wHo were alone competent, or had the power to impart vigor and give effect to his wishes. At any rate, their revocation was not incorporated into either of the codicils of December, 1849, or of June, 1854. It is therefore undeniable, that if these codicils expressed a portion of his wishes as to the disposition of his property, they failed to give expression to the whole of them, and that, as to this large sum of money, it took a direction, if Mr. Parish’s gestures and signs were correctly interpreted, contrary to his expressed and earnest intentions; and his acquiescence in the. suggestions made, if he did so acquiesce, shows conclusively the feebleness of his purposes, and his ready submission to the will of others.

The surrogate of New York, after a.most protracted examination of witnesses, with the opportunity of hearing, and himself taking down their testimony, carefully weighing and arranging it as the investigation proceeded, scrutinizing each witness, and his manner on the stand, with the great advantage óf personally seeing the intelligence, candor, accuracy, and truthfulness of each; aided by the elaborate discussions and critical analysis of the facts by the able and distinguished counsel employed in the case—found and decided as matter of fact that the testator had not testamentary capacity on the 15th of September, 1853, or on the 15th of June, 1854, to make the two codicils of those dates respectively, and that they were not his will or any part thereof, and he refused to admit the same to probate. This decree has been affirmed by the general term of the Supreme Court, and from that decision, those claiming the codicils to be valid have appealed to this court.

Before proceeding to the examination of the facts in the present case, it may aid us in arriving at a correct conclusion to advert to a few rules of law, which it is deemed are well recognized and long established :

It is provided by the statute law of this state, that “ all persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate, by a last will and testament,” duly executed, in accordance with the formalities prescribed by law (2 R. S., p. 57, § 1); and that “ every male person of the age of eighteen years or upwards, and every female not being a married woman, of the age of sixteen years and upwards, of sound mind and memory, and no other, may give and bequeath his or her personal estate by will, in writing” (2 R. S., p. 60, §21); and the statute of wills of 34 and 35 Hen. VIII declares that no will of lands shall be valid if made by any “ idiot, or by any person of non-sane memory.” But competency to execute a testament does not exist, unless the alleged testator has reason and understanding sufficient to comprehend such an act. (Swinburne on Wills, part 2, sec. 4; Marquis of Winchester Case, 6 R., 23 a; Combe's Case, Moore, 759; Herbert v. Lows, 1 Ch., 12, 13; Mountain v. Bennett, 1 Cox, 353.)

In the Marquis of Winchester Case it is said that “ by law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions; but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls-sound and perfect memory.”

In Mountain v. Bennett (1 Cox, 353), the Lord Chief-Baron said: “ Two things must be made out, in the first instance, by those who support the will— the formality of the instrument- and the sanity of the person making it; that if a party impeaching a will relies upon actual force being used upon the testator, it is incumbent on him to show it;” and he adds that “ there is another ground, which, though not so distinct as that of actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will,—that is, if a dominion was acquired hy any person „over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet, if such dominion or influence were acquired over him as to prevent the exercise of such discretion, it would he equally inconsistent with the idea of a disposing mind."

Lord Kenyon, in addressing the jury in Greenwood v. Greenwood (3 Curteis, App., 2), says: “I take it, mind and memory competent to dispose of his property, when it is a little explained, perhaps may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wishes to dispose of it; if he had the power of summoning up in his mind so as to know what his property was, and who those persons were,' that then were the objects of his bounty, then he was competent to make his will.” <

In Marsh v. Tyrrell (2 Flagg, 122), that experienced and learned judge," Sir John Eicholl, said: “ It is a great but not uncommon error to suppose that, because á person can understand a question put to him, and can give a rational answer to such question, he is of perfect sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, from a consideration of all the circumstances of the case.”

The observations of Erskine, J., in Harwood v. Baker (3 Moore, Priv. C. R., 282-290), a. case not unlike that now under consideration in some of its leading features, are worthy of note. He says: “ But their lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but that he must have also capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property ;” and he justly and truthfully adds, “ that the protection of the law is in no cases more needed than it is in those where the mind has become too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration; and therefore the question which their lordships propose to decide in this case is, not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it; but whether he was at that time capable of recollecting who those relations were, oí understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.”

Mr. Justice Washington, in Harrison v. Rowan (3 Wash. C. C, 385, 836), speaking of the capacity of a testator necessary to a valid will, remarks: “He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged; a recollection of the property he means to dispose of; of the persons who are the objects of his bounty; and the manner in which it is to be distributed between.them.”

In Den v. Johnson (2 Southard R., 454), the Chief Justice, in charging the jury on this point, said, “ that a disposing mind and memory is a mind and memory which has the capacity of recollecting, discerning, and feeling the relations, connections, and obligations of family and blood; that, though it has been sometimes said, as had been stated, from the books that if one could correctly tell his name, say the day of the week, or even ask for food, it is a sufficient evidence of a disposing mind; yet such sayings, though they show that wills are not lightly to be set aside on suggestions of incapacity, can and ought to have but little weight with rational men, investigating the truth upon their oaths; that if, upon the whole, they should be of opinion that the mental powers of the testatrix were so far enfeebled and broken as that she could not make a discreet disposition of her affairs herself, and the will in question was devised by other persons, and only assentéd to by her, upon being asked, without the power of understanding it, then they ought to find for the plaintiffthat is, that it was not her will.

In Boyd v. Ely (8 Watts’ R.), Sergeant, J., in delivering the opinion of the court, says: “ The great, broad and intelligible question is, whether the mind was restored so as to be sound, whole, compos ; or whether a portion of its thinking and judging powers, as connected with the subject of the will, remained mangled arid perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate, with judgment and discretion.”

In Shropshire v. Reno (5 J. J. Marsh., 91), Robertson, Ch. J., observed that the facts in that case led the court to the opinion: “ That the testator had not a disposing mind, or that if he ever had, it- was not in a disposing state. He was not superannuated, nor was he absolutely stultus or fainus ; but all the facts combined tend to show that he had not a sound memory, nor sufficient mind, nor a mind in a proper state for disposing of his estate with reason, or according to any fixed judgment or settled purpose of his own. This we consider the true test, established not only by philosophy but by law.” Converse v. Converse (21 Verm. R., 168), lays down the rule, that if the testator, when he made the' will, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them, then he possessed a sound and disposing mind and memory.” This rule was approved by Redfield, J., who added: “ He must undoubtedly retain sufficient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind á 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.”

In 1828, Chancellor Walworth, in Clarke v. Fisher (1 Paige, 171), said : “ The general principles in relation to the capacity of a person to make a will are well understood. He must be of sound and discerning mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment in reference to the situation and amount of such property, and to the relative claims of different persons who are or might be the objects of his bounty.” In that case the Chancellor reversed the decision of -the surrogate, which admitted the will of John Fisher to probate. The testamentary capacity of John Fisher was again the subject of a judicial investigation before Vice-Chancellor Sandford, in 1845 and 1846 (3 Sand. Ch. R., 351), and he held that he had testamentary capacity. This decree was reversed, on appeal, by the Chancellor, who held the will void, and this court, on appeal, affirmed the decree of the Chancellor (2 Comst. R., 498). It is stated in a note by the reporter, that a majority of this court were of the opinion, upon all the facts, that the Chancellor had properly set aside the will, but without passing upon the question as to the degree of mental capacity necessary to make a will, affirming the proposition that the testator in that case had not testamentary capacity. Shankland, J., said that, regarding as he did, the cases of Stewart v. Lispenard (26 Wend., 255), and Blanchard v. Nestle (3 Denio, 37), as fixing the standard of testable capacity at any point above that of the idiot and the lunatic, the will cannot be declared void for the want of a sound disposing mind.

The case of Stewart v. Lispenard has challenged much discussion in this State, and has not been regarded with favor by the Bench or the Bar. The circumstances under which it was heard and decided.on the part of the court are such as to carry with it little if any weight of authority. In that case the will of a person conceded to be but a slight remove, in intellectual power, above an idiot, was by a decree of that court, directed to be admitted to probate. The argument of the case was commenced in that court on the 21st of December, 1841, and concluded on the 24th. On .the 31st of that month, the last day of the official term of one-fourth of the Senate, the case came up for decision, and was decided, with little opportunity for an examination of the facts, which the report says were contained in a voluminous case of upwards of 300 pages, and without the benefit of any written opinion, except that of Senator Livingston (and which has since been published), or any suggestions even from the judges of the Supreme Court. The only Justice of that court, being present by courtesy to form a quorum, stating that he had no written opinion to present, not having had leisure since the argument was closed, to digest the facts of the case, or even to read the numerous authorities which had been cited, amounting to nearly or quite a hundred cases, and he declined to deliver an opinion. Senator Verplanck orally stated his reasons for reversal, and thereupon the court, composed exclusively of Senators, by a vote of 12 to 6, reversed the decree of the Chancellor, which affirmed the judgment of the Circuit Judge, who affirmed the decree of the surrogate refusing to admit the will to probate, and the court, by a vote of 11 to 8, made a decree directing the will to be admitted to probate. After the breaking up of the court, the learned opinions of two of the Senators, who voted to reverse, the decree of the three courts below, were published and appear in our reports; but they must be regarded as containing the views of the distinguished Senators and not those of the court. We fully concur in what is said by Mr. Justice Clerks, in Thompson v. Thompson (21 Barb., 116), that “ the opinions of these learned and distinguished Senators in this case are not binding authority.” It is not an inappropriate commentary upon this case to add that subsequent to the decision of the Court of Errors, in an action of ejectment in the Superior Court of Mew York, before Chief Justice Oaklet and a jury, the jury, under instructions from the court, found that this same Alice Lispenard was an idiot, and had no testamentary capacity, thus annulling this same will as to real estate. This verdict was rendered after a protracted investigation, and the examination of a large number of witnesses.

Blanchard v. Nestle (3 Denio, 37) was decided in the Supreme Court in 1846, and affirmed the doctrine of Stewart v. Lispenard, and mainly on the authority of that case, that mere imbecility of mind in a testator, however great, will not avail against his will, provided he be not an idiot or a lunatic.

In Stanton v. Weatherwax (16 Barb., 259) the Supreme Court of the fifth district reversed a judgment of the surrogate, in which he applied to the testator the rule in reference to idiots,and imbeciles, as stated and illustrated in the Lispenard case. The court say that “ perhaps the unsoundness of the testator’s mind extended to so many subjects, and perverted his judgment in relation to so many topics as to obscure and distort his entire mental faculties, and to amount to a general unsoundness of mind, which would entirely incapacitate him from making a rational or valid disposition of his property.”

In Newburn v. Goodwin (17 Barb., 236), Strong, J., thinks the rule established, referring to the Lispenard case, and Blanchard v. Nestle, that-the wills of excessively weak persons, and by those he says he means persons of the lowest degree of mental capacity, where there is a glimmer rather than light, are to be sustained, and he says “ we must submit to it, whatever may be our opinion as to its necessity, propriety, or expediency.”

This court, in two late cases under its consideration (Buel v. McGregor, and in the matter of the will of Richard Ustick), has not considered this rule of obligatory force upon it, but has been disposed to give the language used in the statute its natural and obvious import and meaning. We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations 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 his will. He 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 these things is, within the meaning and intent of the Statute of W*ills, a person of sound mind and memory, and is competent to dispose of his estate by will.

We aré next to consider upon whom the law casts the burden of establishing the will of a deceased person. The party producing the paper or the proponent of a will makes the allegation that it is the will or the wish of a free and competent testator, and the onus jprobandi is upon the party propounding the alleged testamentary paper. The conscience of the court is to be satisfied by the party setting up the will, that it is the will of a free and capable testator. This clearly recognized rule is well expressed by Parke, B., in delivering the judgment of the Judicial Committee of the Privy Council in Barry v. Bultin (1 Curt., 637; 2 Moore, P. C., 480), where he says: “ The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, and they have been acquiesced in on both sides. These rules are two: the first, the onus probandi, lies in every case upon the party propounding the will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” Again: “In all cases, this onus probandi is imposed on the. party propounding a will.” In the late case of Browning v. Budd (6 Moore, P. C., 430) the same learned Judge said: “Their lordships have to apply to the facts of the case the established rule on this subject laid down in Parke v. Ollatt (2 Phil., 323), and fully explained in the case of Barry vs. Bultin (2 Moore, Priv. C., 480), viz., that the burden of proof lies upon the party propounding a will, and that a Court of Probate is not to pronounce in Its favor unless it is judicially satisfied that the instrument propounded is the last will of a free and capable testator.”

In Panton v. Williams (2 Curt., 530, 2 notes of cases, supplement, 21-29), certain papers propounded as the will and codicils of a party deceased, opposed on the grounds of forgery and fraud, were pronounced for by the Prerogative Court, but with great doubt and difficulty. That sentence was reversed by the Judicial Committee of the Privy Council, further evidence having been admitted. Lord Brougham, in delivering the opinion (2 notes of cases, supplement, 29), said: “ It is of itself not immaterial to consider that the contention of those who are setting up those papers is encumbered with so much difficulty; for whether the question arises between a will and an alleged intestacy; or, as in the present case, between one will and another of a prior date, the proof being upon the party, propounding any testamentary writing, the course of adzninis tration directed by the law is to prevail against him who cannot satisfy the conscience of the Court of Probate, that he has established a will, or the prior instrument which is liable to no doubt, is to be established in preference to the posterior one, which cannot be so proved to speak the testator’s intentions, as to leave the court in no doubt that it declares those intentions. There is no duty cast upon the court to strain after pro-late, and to grant it where grave doubts remain wholly unremoved, and great difficulties oppose themselves to our progress, which we are quite unable to surmount.” Again, he says: “ It may suffice to say that the proof eminently lies on him who sets up a will, and further, that it is more fatal than to his adversary if he leaves difficulties entirely without explanations.” He adds : “It is much less material that those who seek to impeach a testamentary instrument should be unable to explain certain things in their case, and should be forced to admit that their argument is not in every point consistent with all the facts, than that they who seek to establish the will should give no rational, consistent, or intelligible solution of those difficulties which encumber their suppositions, and obstruct the path towards the conclusion they would have us arrive at. ... We are of the opinion that grave suspicions rest upon material parts of the case, which it was necessary should be removed, before probate could be given, and that they have not been removed; that the testimony of the witnesses relied upon does not counteract the weight which the undoubted facts of the transaction fling into the other scale— nay, that there is no great difficulty in reconciling much of that testimony, indeed, all its most important portion, with the undisputed facts to which, upon a superficial view, it might seem repugnant.”

In Baker v. Butt (2 Moore, P. C., 317), Parke, B., said: “Ho rule has-been acted upon in the court below which has not been long observed, not only in the Ecclesiastical Courts, but those of common law. . . . For if the party upon whom the burden of the proof of any fact lies, either upon his own case, where there is no conflicting testimony, or upon the balance of evidence, fails to satisfy the tribunal of the truth of the proposition which he has to maintain, he must fail in his suit; and in a court of probate, where the onus probandi most undoubtedly Ees upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence, on both sides, is not judicially satisfied that the paper in question does contain the last will and testament of the deceased, the court is bound to pronounce its opinion, that the instrument is not entitled to probate; and it may frequently happen that this may be the result of an inquiry, in cases of doubtful competency in particular, without the imputation of willful perjury on either side; or it may be the judge may not be satisfied on which side the perjury is committed, or whether it certainly exists.”

The same rule is distinctly recognized and enunciated by the Supreme Court of Massachusetts in Crowningshield v. Crowningshield (2 Gray, 526). It was there held, in accordance with the universal rule, that the burden of proving the sanity of the testator is upon him who offers the will for probate, and this burden does not shift upon evidence of his sanity being given by the subscribing witnesses. Thomas, J., in an able and learned opinion, says: “ When one dies owning real and personal estate, the law fixes its descent and distribu • tion. Under certain conditions, however, it gives to such owner the power to make a disposition of his property, to take effect after his death. This is done by a last will and testáment. To make, such will, certain capacities are requisite in the maker, and certain formalities for its due execution. . . .• When, therefore, a will is offered for probate, to establish it, to entitle it to such probate, it must be shown that the supposed testator had the requisite legal capacities to make the will; to wit, that he was of full age and of sound mind, and that in making it the requisite formalities have been observed. The heirs-at-law rest securely upon the statutes of descent and distributions until some legal act has been done, by which their rights under the statutes have been lost or impaired. . . . Upon whom, then, is the affirmative ? The party offering the will for probate says in effect, This instrument was executed with the requisite formalities, by one of full age and of sound mind,—and he must prove it; and this is to be done, not by showing merely that the testament was in writing, that it bears the signature of the deceased, and that it was attested' in his presence by three witnesses; but also that it was signed by one capable of being a testator, one to whom the law had given the power of making disposition of his property by will.” The learned Judge further adds: “ There are strong reasons why the same presumption as to sanity should not attach to wills as to deeds in ordinary contracts. Wills are supposed to be made in extremis. In point of fact, a large proportion of them are made when the mind is to some extent enfeebled by sickness or old age. It is for this reason that the execution of the will and the proof of its execution are invested with more solemnity, the statute requiring it to be attested by three or more competent witnesses; making void all beneficial devises, legacies or gifts to such interested witnesses, and requiring the presence of the three in probate court for its proof.” In conclusion, he says: “ On the whole matter, we are of opinion •that where a will is offered for probate, the burden of proof in this commonwealth is on the executor or other persons seeking probate, to show that the testator was, at the time of its execution, of sound mind; that if the general presumption of sanity applicable to other contracts is to. be applied to wills, it does not change the burden of proof; that the burden of proof does not shift in the progress of the trial, the issue throughout being one and the same; and that if, upon the whole evidence, it is left uncertain whether the testator was of sound mind or not, then it is left uncertain whether there was under the statute a person capable of making the will, and the will cannot he proved.”

*

We have quoted thus largely from this opinion, for the reason that it is to our mind one of the most able and satis factory upon the points under consideration in this case with which we have met. It is most carefully considered, ably reasoned, and fully sustained by authority. Its results com mand our entire assent. See also Quick v. Mason, 22 Maine, 438; Cilley v. Cilley, 34 id., 162; Wallis v. Hodgson, 2 Atk., 56; Powell on Devises (Jarman’s ed.), p. 81, vol. i.; Newhouse v. Goodwin, supra; Clarke v. Sawyer, supra.

In this connection, it may be well to add a few remarks from the opinion of Mr. Justice Erskine, in the case of Harwood v. Baker, supra. They are in point, and lay down with accuracy the principles which should govern us in the examination of the evidence in this cause. • He says: “ Keeping in mind the principle, that in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in'question does contain the last will and testament of the deceased, and that this obligation is more especially cast • upon him when the evidence in the case shows that the mind of the testator was generally, about the time' of the execution, incompetent to the. exertion required for such a purpose; and further, keeping in mind that the disposition in question was not in accordance with any purpose deliberately formed before his mind -became enfeebled by disease, we come to the examination of the witnesses whose evidence is relied on as proving that at the time of the executing the will in question, he was. fully competent to form, and did deliberately form, the intention of leaving to his wife the whole of his property.”

It seems to us that these cases fully establish the following propositions:

1. That in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question does declare the will of the deceased, and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and memory.

2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will, and the testamentary competency by the attesting witnesses, but remains with the party setting up the will.

3. That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question does contain the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled to probate.

4. That when it is sought to establish a posterior will, to overthrow a prior one made by the testator in health, and under circumstances of deliberation and care, and which is free from all suspicion, and when the subsequent will was made in enfeebled health, and in hostility to the provisions of the first one; in such case the prior will is to prevail, unless he who sets up the subsequent one can satisfy the conscience of the Court of Probate that he has established a will. And also the prior wjll is to prevail, unless the subsequent one is so proven to. speak the testator’s intentions, as to leave no doubt that it does so speak them.

5. .That it is not the duty of the court to strain after probate, nor in any case to grant it, where grave doubts remain unre moved, and great difficulties oppose themselves to so doing.

6. That the heirs of a deceased person can rest securely upon the statutes of descents and distributions, and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showing that the will was executed with the formalities required by law, and by a testator possessing a sound and disposing mind and memory.

The maxim, qui se scripsit hceredem, has imposed by law an additional burden on those claiming to establish a will under circumstances which call for the application of that rule, and the court in such a case justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testimony in the present case. The two codicils under consideration were exclusively for the benefit of Mrs. Parish, with the-exception of the charitable gifts,-and although they were not actually written by her, yet they were drawn up at her suggestion, upon her procurement, and by counsel em ployed by her. She prepared and gave the instructions for them, and in judgment of law they must be regarded as written by herself: Facit per alium, facit per se.

The rule which should govern the court in such a case is enunciated in Barry v. Bultin (1 Curt. Eccl. Rep., 637). It is there said, that if a party writés or prepares a will under which he takes a benefit, that it is a circumstance which ought, generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that -the paper propounded does express the true will of the deceased. By the civil law such a will was rendered void, and it may be well doubted whether we have acted wisely in departing from its just and rational provisions in this respect; and it is well said by the court, in Crispell v. Dubois (4 Barb., 398), that, though this rule of the civil law has not been adopted in our courts, yet they do demand satisfactory proof in such cases that the party executing the will clearly understood and freely intended to make that disposition of his property, which the instrument purports to direct. The doctrine is well stated in Parke v. Ollatt (2 Phill., 323), that “ where a person who prepares the instrument and conducts the execution of it, is himself an interested person, propriety and delicacy would infer that he should not conduct the transaction.” In this case, conceding that Mr. Parish had some mind, it must also be conceded that it was greatly enfeebled; and it is undeniable that he was very much in the power of those by whom he was surrounded, unable to communicate except by their aid and through their interpretation, and in answer to questions which they saw fit to make, and by assenting to, or dissenting from, such suggestions as were made to him. Mrs. Parish was for all purposes his only channel of communication, and his sole interpreter, and the only person from whom all suggestions fruitful of results came.; and it follows, conceding she might not have been the actual scrivener, or even not the employer or principal of the scrivener, that the same rule should apply as in cases when the scribé is the chief beneficiary under the will. The reason of this rule would require that these codicils should be fortified and supported to the same extent, and in the same way, as if she had drawn them herself.

Having, as we think, distinctly and satisfactorily ascertained the principles of law which should govern courts in the determination of testamentary cases, and which we have been thus careful to announce as safeguards for the protection of the community, we now proceed to the application of those principles to the testimony in the present case. Such an examination must necessarily in this discussion be confined to its more salient parts. The testimony occupies three octavo volumes, and a brief reference to that portion of it deemed the most significant is all that can be done here.

We shall now regard this court for the purpose of such investigation, as sitting as the primary tribunal, before which the application may be considered as pending, to admit to probate the two codicils in controversy. If it shall be found that the testimony is of such a character that no doubt remains that the two papers propounded express the will of a free and capable testator, then the codicils must be admitted to probate. If, however, the conscience of the court, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the papers in question do contain the last will and testament of the deceased, the court is bound to pronounce its opinion that, the instruments are not entitled to probate.

It is impossible, within any reasonable or practicable limits, to review in detail-the mass of testimony taken in the present case.

A very large proportion of it is occupied with the opinions of many highly intelligent and respectable gentlemen, having more or less opportunities for observation of the mental vigor of Mr. Parish after his attack, and their conviction that he understood what was said to him, by signs and gestures, and in some instances by the use, as they understood him, of the monosyllables “yes” and “no,” thereby communicating his thoughts and wishes to those around him. Opinions of witnesses, however respectable, can only have weight and value when accompanied with the facts upon which' they are based, and, having the facts, it is for the jury or the tribunal called upon to scan and consider the testimony, to see if the conclu sions and opinions of the witnesses are sustained by the facts detailed by them. Opinions without facts are of but little im portance. (Clarke v. Sawyer, 3 Sand. Ch., 351; Cilley v. Cilley, supra; De Witt v. Barley, 17 N. Y., 340.)

We shall advert only to such portions of the testimony as have impressed our minds as of peculiar significance, and have led us irresistibly to the conclusions at which we have arrived. Before doing this however, it is well to consider for'a moment the condition in life, the associations, and social position of Mr. Parish previous to the attack in July, 1849. We have a full and minute account of his life from his youth upward. It seems to have been peculiarly blameless and free from reproach. The breath of scandal never tarnished his fair name, and his conduct seems to have been in the highest degree circumspect, and such as became a gentleman of the most fastidious tastes and refined associations. In 1829, occupying then a high social position, and having accumulated a fortune which was then deemed ample and large, he was married to Miss Susan Maria Delafield. She was an accomplished lady, moving in the highest social circles of the city, and of a family distinguished by the intellectual vigor of its members, and by the high professional position of her distinguished brothers. To this circle Mr. Parish was welcomed with cordiality and affection. It is proven in the case that her mother loved him as a son, and her brothers regarded him as a brother. For y twenty years Mr. Parish lived and moved in this circle and with these associations, “ sanspeur et sans reprocheS He gained upon the affections and the respect of his wife’s family, and its members seem to have been his most intimate friends and constant associates; and their friendship and attachment to him were apparently never weakened, but greatly strengthened. His house was the abode of hospitality, and at his table and at his feasts were gathered the most refined, polite, and intellectual of Hew York society. Mr. Kernochan, his life-long associate and intimate friend, his almost daily companion from boyhood until the hour of his death, with better and fuller opportunities of knowing him than any other man, (except perhaps his brother Daniel), and most competent from his intelligence and acquaintance with men to form an accurate and reliable judgment, says of him, “he was the most placid and unexcitable man I ever knew, of great self-respect, and great command of temper.” Dr. Delafield says, “he was of studious courtesy and propriety of demeanor." Col. Diehard Delafield says, “his manners were mild, gentle, and unruffled." Mr. Henry Delafield, who knew him intimately, from residing part of every year in "the same house with him for twenty years, says, “ he was exceedingly affable and courteous.” And Dr. Taylor, the eminent Rector of Grace Church, where Mr. Parish constantly worshiped for more than twenty years, and who was on terms of intimate association with him, says:

“ His conduct was marked most decidedly by great self-respect and strict observance of decorum, and, in his intercourse with others, great courtesy and affability of manner.”. This was the daily walk and carriage, and such the estimate of the gentlemanly bearing of Henry Parish, up to July 19, 1849.

How utterly changed did he become after that day, is conclusively established by the uncontradicted testimony of many witnesses. We shall only advert to a few of the most remarkable and striking incidents, indicating unmistakably the total transmutation, from that day, of his character and habits. The review is painful and would willingly be omitted. In the view we take of this case, it is quite controlling, and it cannot therefore be avoided. The facts narrated show the changed man, and the inferences to be drawn from them are conclusive.

In March, 1850, as related by Dr. Taylor, this scene occur- • red at Mr. Parish’s house after he had administered the Communion to Mr. and Mrs. Parish and their attendant Mary Ann. Green. As Dr. Taylor was going away, Mrs. Parish took out of her pocket three gold pieces of $5 each, and handed them to Mr. Parish to be given by him to Dr. Taylor. Then “ Mr. Parish evinced strong displeasure by his looks and contemptuous mode of expression, frowning, and saying, ‘yah, yah, yah,’ shaking his head at Mrs. Parish, scolding in his way, and refusing to hand ” Dr. Taylor the money. She smiled and said, “give it to the Doctor.” He threw the money back to her, it fell on the floor—she picked it up and gave it to the 'Doctor, and he left.

The interview between Mr. Parish and Mr. Daniel Parish at the house in December, 1850, furnishes another striking illustration of the change in Mk Parish’s manners and character. The testimony clearly shows that the brothers Henry and Daniel had ever lived together on terms of more than ordinary fraternal intimacy. Daniel was the younger brother, and had, . in early life, been taken from home by him, and associated with him in business, and had thus opened up to him his subsequent laudable career. We cannot see that any cloud had ever obscured their friendly regard for each other, and as their natures seem to have been peculiarly undemonstrative, we have but few evidences of outward manifestations of their interest in, or affection for each other, except as we gather them from circumstances. We cannot fail to see, however, underneath a calm and unruffled exterior, a deep current of warm affection for each other, and Henry manifested this feeling towards his brother Daniel on many marked occasions. His sympathy for his brother, at the period of his pecuniary losses, and the delicate and inoffensive way in which Henry contributed from his own means to repair them, may be cited as evidences of his warm feelings for and interest in Daniel and his family. We see no reliable evidence in the case, that any change was ever wrought in Mr. Henry Parish’s mind towards his brother. The trifling incidents referred to as causes for the suggested change of sentiment, are wholly inadequate to produce such a result. It is incontrovertible that Mrs. Parish, for some cause, had certainly not the most friendly feelings towards Mr. Daniel Parish. If she had formed the designs attributed to her, it is not unnatural that she should have desired to exclude Mr. Daniel Parish from the society and house of her husband; that she should have received with distrust and suspicion his every act of omission or commission; and that she should have hoped and expected that her husband would have participated in and sympathized with her in her animosity to Mr. Daniel Parish. It is upon this hypothesis that we may credit the testimony of Quin, that, on the next day after Mr. Parish’s attack, she gave orders to exclude from the house Daniel Parish and the members of his family. That such exclusion did actually take place is uncontradicted. No mention was made as to James Parish, and the reason may be that, as he lived in the country and was partially blind and not in the habit of visiting the city, it was supposed no effort would be made by him to see his'brother, and any attempt to exclude him was uncalled for. It is certain that he did not visit his brother Henry, and whether his failure to do so was prompted by knowledge of the exclusion of his brother Daniel,- and the natural inference that he would also be excluded, or from inability to travel, does not appear. There is no evidence in the case of any expression of dissatisfaction toward him by Mr. Henry Parish on account of such omission, or any exhi bition of unfriendly feeling toward him or his family, if we except the wish said to have been expressed by Mr. Parish, as interpreted by Mrs. Parish to Mr. Lord, that he desired to revoke the legacies to the children of James.

In this place it may be well to remark upon the interviews, and the only ones, had by Mr. Daniel Parish with his brother after his attack. The first one was about the 20th of August, 1849, as near as it can be stated from the testimony; when, on calling at the house to inquire as to the condition of his brother, Quin, the waiter, let him in, having heard the doctor say that his brother was “very low, he was afraid he would do no good.” Quin, thinking he would not live, told Mr. Daniel Parish, in disobedience of his instructions, “to go right up and see his brother now, that when he would call.again he would not see him alive.” Mr. Parish proceeded immediately to his brother’s sick-room, and, as he was about entering, he met Mrs. Parish, who objected to his going in, saying “ he was not in a condition to be seen.” He went in, notwith-. standing, and this first interview of the brothers would seem to have been of the most friendly character on the part of both. A servant was sent into the room to report "to Mrs. Parish what Mr. Daniel Parish was doing there, and he saw him (Daniel) “ having hold of his brother in the bed by his hand.” There is no evidence that Mr. Henry Parish evinced any displeasure at 'this visit. When Mr. Daniel Parish left the house, Mrs. Parish gave instructions to Quin “to be particular not to let him in again.” About the middle of October, 1849, Mr. Parish was very feeble, and Dr. Taylor thought it very probable that he would shortly die. On the 16th Mr. Daniel Parish called to see him, and was admitted by Mrs. Parish, and if he then saw his brother, which- is left by the testimony in some doubt-, this was the second interview. We have no statement of what occurred (if it took place), and only know it was short. This may be well supposed, as it was expected Mr. Parish would not long survive. On the 8th of January following Mr. Henry Parish was driven down to the office, where for many years he and his brother and their partners had transacted business, and then Daniel Parish came up to him, shook hands with him, and said, “ How do you do, Henry?” There is no evidence on this occasion that Mr.' Parish evinced any unfriendly or hostile feeling to his brother Daniel. Between this period and May 1,1850 (from the testimony, the latter part of January), Henry Parish again visited the counting-house in Water street, and met there his brother Daniel. He came forward and shook hands with his brother Henry, and inquired after his health. There is no evidence of any unfriendly feeling exhibited on this occasion by Henry Parish to-his brother. About the last of February, 1850, Henry Parish was severely attacked with a convulsion, and Dr. Delafield,-his physician, deeming his condition alarming, and considering his recovery to be nearly hopeless, it would appear, without consulting Mrs. Parish, despatched a messenger immediately for his brother Daniel. What transpired on the occasion of this visit does not appear. Daniel Parish, on his return from Europe in November or December, 1850, calls on his brother Henry with his two daughters, was kindly received by him, and went with him into the drawing room. While there, Mrs. Parish came in, and soon evinced her displeasure at the presence there of Mr. Daniel Parish, and ordered-him to leave the house. This is the last time Henry and Daniel ever met, and, so far from Henry exhibiting any unkind feeling toward Daniel in any of these interviews, it is shown that he evinced the utmost excitement and anger toward his wife for her apparent harsh and unkind treatment of him on the occasion of this last visit. The case is, therefore, without a scintilla of evidence that Henry Parish, on any occasion, gave expression to any hostility to' his brother Daniel, or of any change of feeling toward him.

We resume the narration-of acts and conduct of Mr. Henry Parish. At the interview at the house in the latter part of" 1850, just referred to, Henry Parish manifestly thought that Mrs. Parish was treating his brother with rudeness and impropriety, if he had mind to comprehend what was transpiring; at any rate, .he' saw something was going on offensive to him; and that Mrs. Parish’s manner to Daniel was unfriendly and harsh. If he could understand what was said, he heard her order his brother to leave her house, and saw her follow him down stairs, as if intending herself to see that he promptly obeyed her commands. At this Henry Parish became greatly excited, and the witness, his attendant" at the time, says: “ Mr. Henry Parish got quite outrageous in my hands. Mr. Parish had his crutch; he raised it with the intention of hitting Mrs. Parish,' who stood in the front hall; just as he raised his crutch, I swung him round from the right side, and got him into the dining-room.” It is not a little extraordinary that, if Henry Parish then entertained toward his brother Daniel the unfriendly and hostile sentiments now alleged, and claimed, and if he heard' and understood all that was transpiring, he should not have sought to inflict chastisement upon that brother whom, on this hypothesis, he must have greatly disliked, if not hated, and who had in his presence insulted his wife, rather than upon her, the advocate and