purpose of having that relief administered that the proceedings are remitted to the Special Term." RUGER, Ch. J., reads for dismissal of appeal. All concur. 95 666 135 413 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE GENESEE VALLEY CANAL RAILROAD COMPANY et al., Appellants. (Argued March 11, 1884; decided March 21, 1884.) THIS action was brought to restrain defendants from building the Genesee Valley Canal railroad upon the line adopted by it through the village of Nunda, and to compel its construction upon another route. The complaint was dismissed. Defendant made an application for an extra allowance; this was denied. The order stated that "this is a difficult and extraordinary case within the meaning of section 3253 of the Code of Civil Procedure * * * * but that the value of the subject-matter involved in this action cannot be computed, and that this is not a proper case for such an allowance." The court here say: "The substantial question involved in this action was the right of the defendant, The Genesee Valley Canal Railroad Company, under its charter and the contract with the State, to construct its road upon the line located by the company near the village of Nunda, instead of upon the route of the Genesee Valley canal, through that village. The court dismissed the complaint. If the action had been maintained, the railroad company would have been deprived of the franchise claimed by it to construct the road on the located line. The primary interest involved in the controversy was the value of the disputed franchise. The amount the company had expended upon the located line would not be the measure of value, nor would the increased cost of constructing the road on the line of the canal furnish such measure. The franchise, if undisputed, may have been valueless. There is no evidence upon that subject, and we concur with the General Term that the papers present no facts as a basis of computation upon which to predicate an extra allowance." George Zabriskie for appellants. Dennis O'Brien, attorney-general, for respondent. ANDREWS, J., reads for affirmance, with costs. All concur. Order affirmed. JAMES O'DEA, Appellant, v. MARY O'DEA, Respondent. (Submitted March 11, 1884; decided March 21, 1884.) George J. Greenfield for appellant. De L'Crittenden for respondent. Agree to affirm; no opinion. All concur. Order affirmed. JOHN S. PROUTY, Respondent, v. THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant. (Argued March 18, 1884; decided April 15, 1884.) THIS case presented the same questions and was decided on authority of O'Brien v. Young (ante, p. 128). Edward S. Rapallo for appellant. Lucien Birdseye for respondent. DANFORTH, J., reads mem. for reversal of orders of Special and General Terms and for granting of motion on authority of O'Brien v. Young. All concur, except RAPALLO and ANDREWS, JJ., not sitting. Ordered accordingly. JOHN B. JOHNSON, Respondent, v. CATHARINE WILLIAMS, EXecutrix, et al., Appellants. (Argued January 23, 1884; decided April 15, 1884.) Charles Unangst for appellants. Samuel L. Gross for respondent. Agree to affirm; no opinion. All concur, except RAPALLO, J.. not voting, and Andrews, J., dissenting. Judgment affirmed. In the Matter of the Probate of the Will of JOHN DARROW. (Argued March 21, 1884; decided April 15, 1884.) THIS was an appeal from a judgment of General Term affirming a surrogate's decree admitting to probate the will of John Darrow. The mem. of opinion is as follows: "We are unable to find any question of law in this case. Our opinion upon the facts is not material. Very much has been forcibly said in favor of the theory of undue influence operating upon the mind of the testator, but upon conflicting facts and inferences the surrogate and General Term have found in favor of the will, and we cannot review such a determination. (Matter of Ross, 87 N. Y. 514; Marx v. McGlynn, 88 id. 357.) The substantial grounds of contest were that one of the principal beneficiaries in the will was the general counsel and attorney of the testator, who gave the instructions upon which the will was drawn by another but friendly attor ney, and who had a previous opportunity to have exerted an influence upon the will, if so disposed. These facts were grounds of suspicion. Coupled with others, such as injustice to deserving relatives, whose disinheritance lacked rational explanation, the presumption of fact might be very strong unless met and baffled by facts pointing in another direction. In this case the proofs indicating undue influence had their weak spots and broken links, while those indicating the contrary were quite numerous and strong. The beneficiary did not draw the will and was not present when it was executed. The instructions he gave as coming from the testator were merely to prepare a codicil, and a new will was drawn by the advice and suggestion of Shepherd, and without the request or even the knowledge of Foley who gave the disobeyed direction. What the instructions given really were we do not know, but that is not the fault of the proponents. They tried to disclose them, but the contestants objected and prevented such disclosure. That fact justifies the inference that they related to a codicil which had no reference to Foley. There must have been a pre-existing will which Shepherd used as the basis of his draft modifying it only in accordance with the instructions. That will was not produced. The contestants did not call for it, and the proponents did not introduce it. The proof, therefore, fails to show that Shepherd's draft was in any manner affected or influenced by Foley so far as the devise to him was concerned. The proofs again failed to demonstrate an unjust and unnatural treatment of relatives, such as could be explainable only by the presence of a foreign and disturbing influence. The testator, worth about $70,000, gave to his wife $8,000. At his death in October, 1882, he was about seventy years of age. His marriage to the present widow was in May, 1881, so that they had lived together only about a year and a half. Of all his relations in Saratoga one only, a niece, was present at the wedding. The widow was allowed to testify freely to her personal communications with the testator, and detailing remarks made near the close of his illness as indicat ing that he was flighty, gave some glimpses of his impression which may have been unfounded, but yet was in his mind that the widow might re-marry after his death. Under the circumstances the provision for the wife of eighteen months is not open to severe criticism nor to any serious extent. The deceased had a brother, John, living in Saratoga. They had quarreled and disagreed. But to John's son the testator gave one-half of the residue of his estate. His sister Mary was dead. She had married and moved to the west, leaving children in Iowa and Dakota. To these nephews and nieces, about whom he probHe had another sister, whom perhaps he had never seen, and ably knew but little, he gave nothing. Mrs. Whitman, who had been dead for twenty years, but who left four children, two of whom were residents of Saratoga. To one of them Mrs. Foster whose residence was in Michigan, he gave $200, and to another, Mrs. Benedict, $250. He had a sister, Delia Benedict. To her he gave $800. To another sister, Mrs. Wayne, living in Detroit, he left nothing. He had another brother, Henry, living in San Francisco, to whom he gave nothing, but small legacies were scattered about among numerous other nephews and nieces. The case does not disclose the character of his relations with these relatives, but his will shows attention directed to them, and choice made among them. While there is neglect for some and but slender provision for most, there is no such gross and unexplainable disregard of the ties of blood as to add important strength to the inference of a foreign and improper influence. Yet some force it certainly has, and that must not be overlooked in connection with other facts. It is beyond reasonable question that the testator was of sound mind and memory when he executed the will and not a man to be readily influenced or controlled unless through his reason and sense of justice. He was seriously ill and doubted his own recovery, but nothing indicates that his habitual care and caution in the management of his affairs had deserted him in the least. He was taken sick on a Monday, and was then talking to his wife about business affairs. Even his friendship for Foley did not blind him to their neglect, for he spoke of money he had loaned him and that he wanted better security and asked to have him sent for. On that Monday night Foley The widow says she was present, but not all the time; that she left the room part of the time and then he was to see him Tuesday morning.' What passed at this interview came. |