Year: 1875

SURROGATE HUTcHINGs DEcIsIoN-HE DEGREES


THAT THE WILL IS NOT ENTITLED TO PRO-


BATE-wHAr CONSTITUTES UNDUE INFLU-


ENCE.


Surrogate Hutchngs yesterday gave hts decision in
the matter OF the probate OF the will OF Alfred Barmore
refusing admit the instrument 10 probate The case
excited much attention that sketch OF IL aud
the maker OF the wi given in the Surrogates deci-
sion will be found OF interest that the contest has
at last been decided


Mr. Barmore had been for many years in this city in
the ice business and under his judcious management
it had grown from small proportions into an almost
unrestricted monopoly OF which he President OF the
knckerbocker Ice Company, the head He was a
OF more than ordinary intelligence active business
ment as the success which attended his enterprises
abundanty proved


The will he made, and which was the subject OF the


long contest just closed provided in substance that the
OF $50 Quo should be placed in tho hands Of trus
tees, and that the income thereof be paid TO
his daughter Emma. the wife Of Titus B. Edrdge.
during her life with remainder over 10 his other
children, and that the residue of his estate should be
divided equally between his son, William H. Barmore,
and his daughters, Martha A. Mccullough, Juiletto
Shindler and Georgana Maclay. The instrument was
contested by Mrs Edridgc upon allegations OF want
OF testamentary capacity in the decedcnt and or fraud
and undue influence practiscd upon him by the other
legatees and those interested with them the pro-
eurcment OF the execution OF the paper Mr. Barmore
died the 18th day OF May, lSIo at the OF sixty
seven. possessing estate estimated at about
ST. 900 0O0 Of which, as stated the contestant Is be-
queaihed lie interest only IN $4,000 with no re-
mainder over TO her issue. So marked i dsparnge-
ment Of one member OF his family, while the others
made equal benefciarics Of substantially all tho
decedents estate, was u fact the Surrogate re-
marks, 10 excite comment and TO justify a close
scrutiny into the causes Of the discrimination
il that in 1864 sevcnty-four shares of
the Washington Ice Company purchased in
Mr.. Barmore's name ana sixty -four in the name
OF Mr.. Eldridgc, and were transferred to them
respectively the books OF the company. Mr.
Eldridge claim ed that all OF the In the
purchase Of stock at tins period made upon the
Joint account OF the decedcnt and himself This claim
OF Mr. Edridge have been recognized by the
decedent, far the New York Ice Company is con-
cerned 10 the extent Of payment TO him OF $23 500
ton Ice Company stock which stood IN Mr Eldrdge's
name, there absolute denial by the
.soarh the oercaes ese'S had been m standing u's m
his from the date of their purchase until
late in 1865 at which time, the stock purchased
par having increased in value 200 cent the dece
dent made demand upon Mr.. Eidridge for the GER
thcatcs which the latter refused to give up unless the
value OF the shares paid to him settlement
finally effected by which mutual releases
changed the payment TO Mr.. Edridgc OF the sum of
81 100 Mr. Barmore however after this continued TO
insist that Mr. Eldridge had had any equitable
right the -four shares 1t these shares ap
parently which brought about the OF friendly
relations between Mr. Barmore and his son-inlaw and
his daughter Until the dispute over these shares
Cured the relations between them Of cordial in
tmacy The sixty -four shares or stock which stood in
Mr. Eldridge's name were sold by him early in Janu-
ary 1860, at the rate of $500 share he receiving
therefor The sum OF $4,000 About two months after
the 5th of March, 1869, he executed will by tho
terms OF which he aside 500 for his wife and the
same amount for each OF his children, except Mrs.
Eldrdge and divided the residue of his estate equally
among all his children.


After having briefly reviewed the evidence in the
case the Surrogate saysAt the threshold OF this
with the extraordinary fact Of father who
had for many years OF his e expressed great aec-
tion for his daughter and who whom dividing very
large among hls children gives TO his other
children substantially ALL and practically dsinhcrts
hrr az r Ii agCcrtainoQ
OF her but because OF conduct of her husband in
which she had part and for whose acts she states
being determined, in the dsagreeabe dilemma OF
controversy between husband and father, TO remain
neutral This dsinheritance took place when all the
witnesses unite in saying that until the production OF
the will


AFTER THE DEATH OF THE DEcEDKsr


there had been want OF friendship between the
daughter and the other members OF his family. Then
there is failure by the proponents 10 prove that
the aud brother sought to remove the feeling of
hostility which doubt existed against Mrs Eldrdgc,
for ncomprehcnsibe that The deccdert could have
dsnherited her unless he entertained such sentiments
and equally incomprehensibe that they could have
existed in his mind without the knowledge OF his
family He then adds-'I am satisfied that there
was continuous influence over the decedent
by the three daughters and their husbands
which led TO the result to DC accomplished
by this will IL it shall be ultimately sustained Under
the of the case, with motive and
on the part OF the principal cgatees the practical
exclusion OF Mrs Eldridge from private communica-
tion with the decedcn It's marked features is not





passive influence may be just eectual in the accom-
plshment OF a purpose active agency. Even ST.
Icnce times significant than positive dccara-
tion. 1t s also question with me whether the family
NAV not have in such condition OF mind caused
by the hatred which they entertained toward Mr..
Eldridge that they almost incapable Of acting
IN a reasonable just manner to their sister.
There is however, another and important fea-
ture in this case 10 which shall aude, and from
which the inference is strong that the deccdent


THE sUBJEcT INFLUENCE


by those who desired who synpathized with the dis
inheritance OF Mrs Eldridge" Referring TO tho deed of
trust dated the 10th OF May, 1875 executed within two
days of his DEATH the Surrogate remarked that thcro
had been no ntmation made in the case by the pro-
ponen;s or their counsel that such paper in
istence


The Surrogate closed by saying:-"An the evidence
paper the subsequent execution OF the deed OF
confirms the existence OF such influence, and the
inference all the various aspects of the case is TO
my mind irresistible Whether the operation Of the
deed of trust can be construed INTO revocation OF
the tesamentary paper not is question which de-
serves more serious examination than | have tho
time TO bestow But 1t is certain that II that deed
should be sustained in the tribunal IN which the decis
ion rests the paper which Is presented to Of


tesamentary character cannot dispose OF any OF the
property OF the deceden he had entirely dvested
himself OF IL by this deed OF trust have considered
in my opinion only important as affecting question
Of undue influence and raising the presumption that
IL were procured under such circumstances the
undue influence may have attended the preparation and
execution the paper before decree will there
fore be entered rejecting the instrument in question as
not entitled to admission to probate"