Opinion
November 9, 1967
Objectants appeal from a decree of the Surrogate's Court of Sullivan County admitting a joint will to probate, following a jury trial of framed issues. The decedents, husband and wife, died in the Fall of 1963 and the Spring of 1964, respectively, and had executed a joint will on May 5, 1958 by which they left substantially all of the estate of the survivor to their daughter Frances Bergman. A prior will, drawn in 1955, provided that the estate of each of the decedents should go to the survivor and did not dispose of the survivor's estate. A son of the decedents predeceased them leaving a daughter and son and who, individually and by a representative of the grandson, filed objections to the probate of the joint will, alleging that the testators lacked testamentary capacity and that undue influence had been exerted upon them. We first direct our attention to the appellants' objection to the admission of the will to probate because of a lack of testamentary capacity. The record clearly shows that the jury verdict on this issue was properly and adequately sustained by the evidence and any contrary finding would have been set aside. In fact, the appellants' present claim makes no serious reference to that issue and we would further add that during the course of the trial, appellants' counsel stated that this issue should be withdrawn and not submitted to the jury. Thus, the question for our consideration is the issue created by the claim of undue influence. The record establishes the fact that when the testators conferred with their attorney and accountant regarding the details and preparation of their will they were asked why the son and grandchildren were excluded from the will and replied that their daughter had been good to and worked hard for them while the others had given them aggravation, trouble, embarrassment and notoriety and that they had already taken their share from the testators. The illusory testimony of the witness Lois David relied upon by appellants to establish undue influence, lacks any probative value and could not form the basis for any such contention. The record shows a complete lack of either direct or circumstantial evidence as to any influence exerted by Frances Bergman over the execution of the will in question, either at the time it was executed or at any other time. The evidence is in no way inconsistent with the hypothesis that the will was the result of the clear intent of the testators and "does not satisfy the test that intervention and undue influence can only be established by evidence that is not inconsistent with a contrary hypothesis" ( Matter of Walther, 6 N.Y.2d 49, 56). The evidence shows that the will was the product of the free and unfettered act of the testators. In fact it would have been proper for the court to have granted proponents' motion for a directed verdict. (See Matter of Becker, 21 A.D.2d 849, affd. 15 N.Y.2d 916; Matter of Walther, supra.) We have examined the other contentions of the objectants and find them without merit. ( Matter of Kaufman, 14 A.D.2d 411.) The record here indicates a careful handling by the Surrogate of a difficult and lengthy trial. Decree affirmed, with costs to respondents payable from the estate. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.