In the Matter of Eliza Stapleton.

have a right, without being charged with duress or undue influence, to call attention to their claims upon the bounty of a person about to make a will; but in the case at bar I am impressed with the belief, from reading and weighing the testimony, that the husband unduly influenced his dying wife to make this codicil contrary to her wish and intent at a time when she was not of sound and disposing mind and memory. It is significant that he defaulted on the probate proceedings and did not take the stand as a witness. It was competent for him to deny that he manifested displeasure at the will as originally made and executed. Concededly the testatrix was then competent and far stronger, both mentally and physically, than at the time of the execution of the codicil, yet his complaint that he was receiving nothing under the will had no effect on her mind at that time. It was competent for him to deny his admission to the niece on the 12th of March that the testatrix had been in that flighty, irrational condition all along during her illness. It was also competent for him to show that he was not properly provided for, was not receiving a pension, and had not squandered it by playing policy, as stated by the testatrix. Yet he has not denied any of these things.

The appellant, O'Leary, first testified that at the beginning of her illness the testatrix asked him to draw a paper giving her money in the banks to her husband, but he subsequently altered his testimony and fixed the time. after the execution of the will. He says she told him she had made a will and left her husband out and she wanted to right the wrong, and that he drew a paper to that effect, which she signed. The paper was not produced. He also says that he ascertained from his brother on the day of the execution of the codicil that this paper would not be effectual for the purpose intended, and advised the

In the Matter of Eliza Stapleton.

testatrix to that effect, whereupon she summoned her hushand, who suggested that they get a lawyer, and that at the request of the testatrix the husband went out, and within fifteen or twenty minutes came back with Lawyer Sullivan; that he was present during the attorney's talk with her, and did not hear her give the latter the names of the banks, but he subsequently changed his testimony and said the lawyer talked with her privately; that the husband was in and out and was present when the codicil was finally read to the testatrix and executed. He also says that Mrs. Minton, the housekeeper, was present and propped the testatrix up with a pillow at the time the lawyer had her make her mark, but this Mrs. Minton denies.

The attorney who drew the codicil first testified that pursuant to a message left at his house he called on the testatrix between 11 and 12 o'clock on the evening of the 17th of March; that he had done some criminal business for her relatives at her request, but he knew that Mr. Bates was her attorney; that the testatrix told him that her husband had earned the money and she had taken care of it for him and she wanted to change her will; that he read the will and handed it back to her, because he wished the doctor to be present at the time of the execution of the codicil and made an appointment for the next day; that he came pursuant to that appointment, and not, as claimed by Dr. Sullivan, on the summons of the husband; that he drew the codicil in the kitchen; that the testatrix told him she desired her husband to have the property disposed of by the twelfth and thirteenth clauses of the will, and that after he drew the codicil he read it to her. At first he testified that he conferred with nobody before going to the testatrix's room, but later he said that be saw the appellant, Stapleton, in the kitchen and told

In the Matter of Eliza Stapleton.

him to keep out of the room where testatrix was; that after his interview with the testatrix, when he went to the kitchen to draw the codicil, Stapleton was there and brought the ink. After he had been repeatedly asked to state all the conversation between him and the testatrix, and had failed. to show where he got the names of the banks which he inserted in the codicil, he finally testified that he got them from the testatrix and located them from memory. When asked to repeat the whole conversation again he then first revealed the fact that this was his third visit to the testatrix, and that he had called to see her about a week or ten days before pursuant to word left at his house, by whom he did not know; and says that on that occasion she told him she wanted her will changed so as to give the balance to her husband, but that she could not get the will herself, and he departed on the understanding that he would call when sent for.

It appears from the testimony of this attorney that he volunteered the information to the testatrix that there would be a surplus out of the premises where she lived after paying the legacies which she had provided for in the will and that she thereupon informed him that she wanted her husband to have that also. When asked if she was strong enough to sign her name he says that he did not know she could write, although, according to his his evidence, he had the will before him signed by her.

I regard it as quite significant that the husband per sisted in being in the room when the codicil was read and executed after he had been advised by the attorney to remain out. There is no rational explanation for a change of intention on the part of the testatrix between the time of the execution of her will and codicil. There appeared to have been no change in her relations with her nieces for whom she provided in the twelfth clause of the will.

Louis Sachs et al. v. American Surety Company of New York.

Nor does it appear that there was any change in her relations with her husband or in his financial affairs. It was not shown, or attempted to be shown, that the husband earned the money which was deposited in these banks as stated by her, according to the testimony of some of the witnesses. Nor was it shown that she authorized the summoning of attorney Sullivan on either the first or second occasion.

The evidence in this case covers more than 100 pages of the printed record and I have not attempted to digest it all. I have called attention in a general way to that which I deem probable, and which to my mind satisfactorily indicates and justifies the inference that the codicil was not the free act of a competent testatrix. I therefore see no occasion for ordering a jury trial, and if the merits are to be considered I favor affirmance with separate bills of costs to the respondents as indicated.

LOUIS SACHS ET AL., PLAINTIFFS, v. AMERICAN SURETY COMPANY OF NEW YORK, DEFENDANT.

SUPREME COURT-APPELLATE

DE

DIVISION-FIRST

PARTMENT-MARCH, 1902.

§ 1915.

Construction of bond.

Measure of damage for breach.

A bond construed and held that it was given as security for the · faithful performance of a contract by the obligor to erect a building upon property conveyed to him by the plaintiffs.

A parcel of real estate was conveyed by the plaintiffs to the obligor at a purchase price of $190,000, to be paid by assuming an

Louis Sachs et al. v. American Surety Company of New York.

existing mortgage of $120,000 and giving a purchase-money mortgage for $70,000, its actual value being but $160,000, and the plaintiffs being, therefore, entitled to receive a profit of $30,000. The obligor contracted to erect upon the premises a building and the plaintiffs agreed to advance $100,000 as a building loan, to be secured by a further mortgage. The obligor wholly failed to erect the building, the purchase-money mortgage was foreclosed, and resulted in a deficiency of upwards of $50,000. In an action on the bond the plaintiffs offered to prove that if the building had been erected the property would have been worth $400,000 at the time of the completion and at least that sum ever since. Held that such evidence was competent and was erroneously excluded.

Held, further, that had the evidence been received it would have

shown beyond peradventure that the plaintiffs would not only have secured their profit of $30,000, but would have suffered no additional loss upon their purchase-money mortgage; that they would thus have reaped the full profit contemplated in the transaction; that the loss occasioned by the breach of contract to complete constituted the measure of damage; and that the surety upon the bond was liable for its full amount, which was less than the amount of such loss.

The surety having caused the evidence of value if the building had been erected to be erroneously excluded, is justly chargeable with the consequences and is precluded from insisting that the judgment against it is unsupported by evidence.

Where the condition of a bond is for the performance of an act and not the payment of money, a recovery is limited to the amount of the penalty, and interest runs only from the judgment. (Decided May, 1902.)

Motion for a new trial on exceptions directed to be heard at the Appellate Division in the first instance.

George W. Wickersham, for plaintiffs.

Charles De Hart Brower, for defendant.

HATCH, J.-This action was brought to recover the sum of $25,000 and interest, the amount of a bond duly executed by the defendant and one Lewis Hay, against