HAGAN V. YATES.

There are certain

finally declared his satisfaction. things, however, about which he testifies with absolute confidence. He swears that the instrument in dispute is all in his own handwriting, save for the dates and signatures; he swears also (as has been before remarked) that he saw the decedent authenticate either by signature or initials each of the separate pieces of paper of which that instrument is composed; and he swears besides that, in the presence of himself and Mr. Strahan, Mr. Yates published this very document as his last will and testament, and requested their services as attesting witnesses.

Now, assuming that Mr. Waterbury's testimony is true, and I see no reason to distrust it, what light does it shed upon the question whether the decedent, at the time he executed this instrument, was acquainted with its contents? In the absence of positive proof of such knowledge, probate has sometimes been refused to papers of a testamentary character, although duly signed, published, attested, and in all other respects executed in strict accordance with every requirement of the law relating to wills. Special precautions are necessary when the maker of an alleged will has suffered from grave personal infirmities, when, for example, he is shown to have been blind, or illiterate, or weak and low from bodily suffering, or broken and infirm because of age.

But, on the other hand, if one is in the prime of life, and in the full possession of his bodily and mental faculties-if his preparations for making a will are not hurried, but deliberate-if he is trained in the methods of business and has been accustomed to execute papers involving important concerns of life, then the mere presence of his signature, in its appropriate place upon a tes

HAGAN V. YATES.

tamentary paper otherwise properly executed, as required by-law, raises the presumption that the provisions of that paper are in conformity with his wishes (Durnell v. Corfield, 1 Rob. Ecc., 51; Day v. Day, 2 Green's Ch. [N. J., 549; Fulton v. Andrew, L. R., 7 H. L., 448; Lake v. Ranney, 33 Barb., 67).

Now, the case which I have last put is the case of this decedent. And the presumption that he knew the contents of the paper propounded as his will is supplemented by evidence and circumstances of a very positive character, tending to establish the same fact:

1st. By the testimony of Mr. Strahan, to the effect that the disputed paper is precisely that which Mr. Yates approved after repeated alterations, and that it was read aloud to him immediately before its execution. The truth of this statement is confirmed to some extent by the testimony of Mr. Waterbury. He swears to Mr. Strahan's reading aloud, but is unable, for lack of attention, to settle whether what was read was precisely what was written.

2nd. By the testimony of William H. Stiles, who states that, in the fall of 1878, the decedent told him that he had made a new will, and that he had put it in one of the safes of the Safe Deposit company, and that his executors "would find it there if it was wanted at any time."

3rd. By the evidence that, after the death of Mr. Yates, the paper here in dispute, with other papers belonging to him in his lifetime, were found by Mr. Stiles, Mr. Burns, Mr. Brokaw and Mr. Dissel in a safe rented by Mr. Yates from the Safe Deposit company.

4th. By the fact that, between the time when this paper was executed and the time of the death of Mr.

HAGAN V. YATES.

Yates, nearly two years had elapsed, during all of which interval, so far as the evidence discloses, the paper was in his own possession. This is a circumstance of the highest importance. Surely, there is very slight antecedent probability that a person in his senses, who had prepared a will for such a man as Mr. Yates appears to have been, and prepared it at his request and in pretended compliance with his instructions, would not only dare, at the imminent risk of immediate exposure, to insert provisions utterly at variance with those instructions, but would actually deliver the fraudulent instrument into the hands of its signer, to inspect it at his leisure.

The existence of facts so out of the customary range of human experience can only be established, it seems to me, by evidence far more conclusive in its character than any upon which the contestants rely in the present controversy. Their claim that Mr. Yates was tricked into, signing this paper rests chiefly upon three gronnds:

(a) Its unusual appearance in the particulars to which reference has already been made.

(b) The reduction of the bequest to his children by his first wife much below the sum he had provided for them by the will he executed not many months before, and this, too, without adequate explanation and at a time when he was apparently as kindly disposed to them as

ever.

(c) The alleged connection of the decedent's attorney with some fraudulent transaction in Scotland about twenty years ago.

As to the first of these grounds, it must appear upon reflection that the general untidiness of the document, so far from justifying an inference favorable to the contest

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HAGAN V. YATES.

ants has a strong tendency in the opposite direction. For I have already declared to be proven, what is conceded by contestant's counsel, as likely to be true, that the paper claimed to be the will is the very paper which Mr. Yates executed in the presence of Messrs. Strahan and Waterbury.

Now, one who claims that this paper is so shabby asto be suspicious upon its face must admit that the decedent himself was put upon his inquiry concerning it, and would have been likely to refrain from executing it till he had given it close scrutiny.

And, regarding the matter in another aspect, it is surely improbable that one, who sought to procure from the decedent his signature to a fraudulent instrument which pretended to be his will, would have presented that instrument in such questionable shape as might well have sufficed of itself to make the scheme abortive.

A similar criticism may justly be made, in respect to the reduction of the bequests to Mrs. Hagan and Mrs. Dickel. By the will executed in the spring of 1878, he left to each of them $10,000, outright, and the interest on an investment of $50,000. By the paper here propounded, each of them is bequeathed the interest on $20,000 only.

If the decedent had given that paper, before he signed it, even the most casual inspection, he could not have failed to discover its radical departure, in this respect, from the directions of his former will. The new provision is not hidden in a corner. It covers all the fourth page, and is written in a large and distinct hand. The words "twenty thousand dollars" appear upon that page five times, and in immediate connection with the names

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of his children who are thus fully described: "Cornelia Van Evra Yates, wife of James W. Hagan," and "Lillian M. Yates, wife of Charles Dickel."

It seems absurd to suppose that any person would have attempted to practice upon Mr. Yates so palpable an imposition as this must have been (on the assumption that the change was fraudulent), and it seems equally absurd to suppose that, if such an attempt had been made, it could have succeeded.

As to the evidence tending to show that the decedent's attorney is the person against whom, in the year 1866, a Scotch tribunal pronounced judgment of outlawry upon an accusation of a criminal offense, it is only necessary to say that that fact, if it is assumed to be proven, fails to supply the deficiencies of the contestant's evidence in support of this charge of deceit and imposition.

Third. There only remains to be considered the question, whether this paper in truth declares the testamentary wishes of Alonzo C. Yates, or whether it discloses rather the purposes of some other mind by which his was guided and controlled. Upon examining the scanty evidence which either directly or indirectly relates to this branch of the case, it will appear that no influence whatever, either lawful or undue, is shown to have been exercised by the wife of decedent in reference to the preparation and execution of the paper in dispute.

The contestants, so far as this part of their objections is concerned, are compelled to rely almost entirely upon the facts that Mrs. Yates had opportunity to influence her husband, and that his alleged will, while it makes munificent provision in her behalf, is both ungenerous and unjust to the family of his first wife.