Palmer v. McBride

SHINN, P. J.

Loreen E. Palmer was the surviving wife of Norman L. McBride. On or about November 16, 1947, she went to Yuma with Herbert A. Palmer where she was married to him. She died December 8, 1949, at the age of 58. On July 23, 1948, she executed a will in which she made certain bequests to her mother, Elizabeth Thornton Bernia, to Katharine Ann McBride, and to Hugh Kingsbury, and the remainder of her estate she left to trustees for the support and maintenance of her mother during her lifetime. Upon the death of the mother the trust was to terminate and the corpus remaining was to go to Katharine Ann McBride, Deanna McBride and Norman L. McBride III (erroneously mentioned in the will as Norman L. McBride, Jr.), grandchildren of the deceased husband. There was also a bequest of $4,000 of the trust estate to be used upon certain conditions for the education of a nephew of the deceased husband of testatrix. Elizabeth Thornton Bernin predeceased testatrix and the three McBride children first named claim the interests which they were to receive under the will. The 1948 will recited: “Fourth: I am intentionally making no provision in this my Will for my husband Herbert A. Palmer, for the reason that all of the property comprising my estate is my separate property, the same having been acquired prior to my marriage to Herbert A. Palmer.” Mrs. Palmer made another will September 30, 1949. It recited that she had no children of her own. She left three paintings to Hugh Kingsbury, another painting to Mrs. Oreena O’Neill, an emerald ring to Katharine Ann McBride and the remainder of her estate to her husband provided that if he failed to survive her by 180 days the same was to go to Katharine, Deanna and Norman McBride III; if Herbert A. Palmer and said children did not survive distribution, the estate was to go to the daughters of Herbert A. Palmer, residents of

[430]

Pleasantville, New York. The will contained a clause disinheriting any beneficiary who might oppose the will. Herbert A. Palmer was named as executor to act without bond. Upon his petition the will was admitted to probate and he was appointed executor. Katharine, Deanna and Norman III filed a petition to revoke probate. They allege (1) nonexecution; (2) ineompetency of testatrix; (3) the exercise of undue influence by Herbert A. Palmer through advantage taken of his confidential relationship toward decedent; (4) the actual exertion of undue influence upon testatrix by Herbert A. Palmer; (5) the making of false accusations and representations to testatrix by said Palmer concerning the contestants by which she was induced to execute a will in his favor to the exclusion of contestants. Herbert A. Palmer answered. The action was tried to the court; findings were against the contestants except as to the third and fourth grounds of contest. The court found that a confidential relationship existed between testatrix and Herbert A. Palmer; that he unduly profited by the will of September 30, 1949, was active in its preparation, that he solicited the execution of the document, took advantage of the illness from which his wife was suffering, dominated her mind and will so as to bring about its execution and that but for the conduct of said Herbert A. Palmer she would not have executed the will. Judgment was entered revoking probate of the will. Herbert A. Palmer appeals.