Opinion
March 8, 1943.
Appeal from Surrogate's Court, Nassau County.
Decree, insofar as appealed from, reversed on the facts and the petition dismissed on the facts, with one joint bill of costs to the appellants, payable out of the estate. In our opinion, the learned Surrogate erroneously decided the question of fact presented, and our determination, in accordance with section 309 of the Surrogate's Court Act, is that the proof does not warrant a finding that the decedent was incompetent at the time of the designation of Sarah I. Mear as beneficiary of the proceeds of insurance policies, and the creation of trust accounts for her and the other appellants, that is, from December, 1939, to November, 1940. The opinions of two doctors, who had examined decedent prior to the termination of this period, that she was then incompetent because of senility are without sufficient factual basis, in our opinion. One of the doctors testified that she made a delusional statement but does not state in his deposition that such statement was made by her in his presence, but no one else claims that decedent stated that she heard "voices from Heaven." The other doctor testified that he did not attach particular importance to the alleged symptoms of decedent at the time of his examination prior to November, 1940; and it was as a result of subsequent actions and examinations that, in retrospect, he decided that she was then suffering from senile psychosis. He admitted conducting rational conversations with decedent on the subject of her entering a home. There is impressive proof of the competency of decedent during the disputed period from disinterested relatives and friends, from her writings, and from her activities with respect to her assets and the natural manner in which she disposed of them, inclusive of her gift to the son of respondent, the latest of the transactions involved. The controversy with respect to that gift is more formal than real and the actual period in dispute centers about the early part of 1940. The opinions of other doctors, who examined decedent in the summer of 1941, that she was incompetent in 1939 and 1940, are also without factual basis. One of such doctors was employed by respondent in connection with his application to commit her to an insane asylum, although it seems that she was still possessed of means to stay at a private sanitarium. The record of the examination conducted upon admission of decedent to the State hospital in July, 1941, indicates that even then she made competent and intelligent answers and explanations to the inquiries and leading questions of the examining physician. The conclusions of these doctors appear to have been based in substantial measure on the belief that complaints by decedent of shabby treatment accorded her by respondent and his wife were delusions. There is no proof that they were, other than the categorical denials of the respondent. On the contrary, the admitted desire of respondent, the only child of decedent, who had received a gift of a house from her, to foist responsibility for the care of decedent upon others, and his failure to communicate with her or even to inquire for her welfare during the year 1940, as contrasted with his interest in her bank accounts during this period, are elements which tend to show that her complaints were not unfounded. Our conclusion from all of the proof is that although the mental faculties of decedent during the aforesaid period may have been impaired by senility, she understood what she was doing. ( Horn v. Pullman, 72 N.Y. 269, 276.) Close, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.