In re the Probate of the Paper Propunded as the Will of Chittenden

Matilda Amelia Chittenden, widow- of the decedent, propounded- for probate a paper purporting to be the last Will and testament of Lucius Chittenden, deceased,- in which she was nominated as the executrix, and as the testamentary guardian of Lucia Chittenden, the only next of kin and heir-at-law, a minor. The Surrogate appointed James C. Spencer, Esq., counselor-at-law,, as special guardian for the infant. A contest of the propounded paper was commenced by a person claiming as legatee under a testamentary paper of earlier date (seep. 135, ante), but was subsequently withdrawn by this contestant in open Court. The' special guardian then contested the probate on, behalf of the infant heir and-next of-kin. The following is the paper so propounded:

I, Lucius Chittenden, now residing at Stamford, Connecticut, late merchant, do make, publish and declare this my last will arid testament, in manner following

*252■ , 1st. .1 direct all my just debts ánd funeral' expenses to be paid immediately after, my decease.

■ 2d, I give and bequeath to my sister, Clarissa Benham, $1,500;, to my sister Ann - Platt, $1,500; to- my sister, Alivia. Platt, $6,000, and all evidences of debt or claim which I may have against her- at the time of iny decease;, to my friend, Eev. J". Howard Smith, now living at Wash-, ington Heights,-Hew"York city, $3,000 ; to. Eichard L.:. Chittenden, $5,000, absolutely, and the further sum of 1 $5,000 to be expended by him for benevolent purposes, • wishing to léave its disbursement entirely to his discretion; and I.further direct my executors, hereinafter' named, to... pay over to my sister, Amanda Benham, if she shall be living, and in want, such sum, not exceeding $1,000, .as they shall deem proper. '

3d. I give, devise and bequeath to my nephew, Eichard. 1. Chittenden, the lot known as the Eidgway lot, on, East . Bread-street, Columbus, Ohio. . - , „

4th. As to the amount of money which has come to my, . estate, paid over by Samuel T.'Payson, from the estate-, of my late wife, Harriet S. Chittenden, in her own right, as heir to her father’s estate, I direct and authorize rpy : executors to take an equal amount from any fund, which , shall come into their hands, and to pay over one-half. - thereof to' Sarah L. Payson, -wife of Samuel F: Payson,. and'the "other half thereof to' Caroline- Bancroft, wife.of,, A. Bancroft, sister of my said wife.

5th. I direct my executors to purchase a lot in Greenwood Cemetery; Long Island, as a burial' place,for myself , and family; and to reinove thereto the "bodies of any of my . „ family buried elsewhere. . <., ¡

6th. My.books,'pictures, plate .and- jewelry, I wish to,,, be retained by my executors for my daughters Lucia and .. Harriet S. Chittenden, and to be given to them- at such •••■ time as they shall-deem proper, giving them full- discretion' as to the distribution thereof ' . ... •

7th. All the rest, residue and remainder of my estate, *253both real and personal, and wheresoever situated the same may be, I give, devise and bequeath as follows: Two-eighth parts thereof to my wife, Amelia Chittenden, to be accepted" by her in lieu of all claims for dower in my estate; three-eighth parts thereof to my daughter Lucia; and the remaining three-eighth parts to my daughter Harriet S. Chittenden; provided, however^ that their respective portions shall not be paid over to my said daughters, until they shall arrive at the age of twenty-one years; and, for the better execution of the provisions of my will in this behalf, I give and devise the portions hereby bequeathed • to1 my said daughters, to my executors, hereinafter named, to hold the same in trust for them, until-they respectively arrive at the age of twenty-one years, with full power to manage and control the same as they may deem for the advantage of the property and for the interest, of my said children; to receive the income, rents, issues and profits thereof; to make such investments as in their discretion they may deem desirable, and to expend such portion thereof as may be necessary for the support or 'education of my said children, during their minority.

Stli. I further authorize and empower my said executors to sell and dispose of any portion- of the real estate which I "may die possessed, at public or private sale, at such times and upon such terms and in such manner as to them shall seem meet; and to make, execute and deliver proper and sufficient deeds of conveyance to the purchasers thereof.

9th; I do hereby nominate and appoint my wife, Amelia. Chittenden, guardian of children, Harriet S. and Lucia Chittenden, during their minority. And I further nominate and appoint my said wife, Amelia Chittenden, exécutrix, and my friend, Jeremiah 2J. Ayres, of Stamford, Connecticut, executor of this my last.will and testament, and also trustees of the estates of my children. And I further direct that no- bond shall be required of my said executrix and executor, acting as such, or as trustees under my will. -

*254• 10th, and lastly. I do hereby revoke all former wills by me made, particularly referring to a certain will by me made in April, 1865,. which I declare to be of no further force and effect.

In witness whereof, I have hereunto set my hand and seal,- this fourteenth day of August, one thousand eight hundred and sixty-six.

. . Lucius Chittenden, [l. s.]. ■

The above instrument was, at the date thereof, signed, sealed, published and declared by the said Lucius Chittenden as and for his last will and testament, in presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as. witnesses thereto; (In lines ten and twelve, of page one, the words “ five hundred ” inserted, before executing.)

Chas. 'Williams,- Stamford, Connecticut.

Lewis B. Hublbutt, Stamford, Connecticut.

Thomas Gh Bitch, Stamford; Connecticut.

CODICIL.

I, Lucius Chittenden, of Stamford, Connecticut, Having made my will; bearing date the fourteenth day of August, one thousand eight hundred and sixty-six, do now make this codicil, to be .taken as a part of the same.

First. I. hereby ratify and confirm the said will in-every respect, except so far as the same is inconsistent with-this codicil. -

.• Second. My daughter, Harriet- S. Chittenden, having deceased since the making of my will, I hereby give, devise and bequeath to my wife, M. Amelia Chittenden, and to my daughter, Lucia Chittenden, the portion of my estate,by my said will given to the said Harriet S. Chittenden, to be divided equally between them. ■

Third. I hereby revoke the bequests in my said will made to Bichard L. Chittenden for benevolent purposes, and give and bequeath the said sum of- $5,000 to my said wife, ,M. Amelia. Chittenden,' and my. daughter, - Lucia *255Chittenden, to be expended by them, or by the survivor of them, for benevolent purposes.

In witness whereof, I have hereunto set my hand and seal, this eighth day of July, one thousand eight hundred •and sixty-seven.

Lucius Chittenden, [l. s.]

The above instrument was, at the date thereof, signed, sealed, published and declared by the said Lucius Chittenden as and for a codicil to his last will and testament, and we thereupon, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. (The word “five” erased, and “ six ” inserted, before execution.)

Lewis B. Huklbutt, Stamford, Connecticut.

George L. Hubbabd, Stamford, Connecticut.

Thos.' G. Bitch, Stamford, Connecticut.

The taking of proofs -commenced June 1, 1869, and five witnesses had been examined by the proponents and two by the contestants, when the infant, Lucia Chittenden (who was over twenty years of age), requested the counsel for her special guardian to withdraw from further contest of the will.

The special guardian and his counsel, consulted the Surrogate as to. their duty, under these circumstances. The Surrogate declined to give instruction to the special guardian, as the alleged will was against the ward’s interest. It was for. the special guardian, who was himself a professional man, aware of his duties and responsibilities as such, to take such course in the interest of his ward as he should see fit to take. The Surrogate would not advise, the prosecution or withdrawal of the contest in the Court over which it was his duty to preside;

The special guardian then presented his petition to the Supreme Court, asking its counsel and direction, under its general jurisdiction and supervisory powers over the estates and persons of infants. The petition set forth the *256; death of the testator, leaving surviving his widow, Matilda Amelia, and' his daughter by- a former deceased wife, Lucia, his only child, about nineteen years of age; that the, decedent left a large estate, amounting in value to nearly $1,000,000, principally real estate, in - the city of Mew York. That probate had been applied for, citation issued, and the petitioner appointed special guardian; .That the special guardian had .entrusted the interests of his ward to Joseph E. Flanders,- Esq., counselor-at-Iaw, as counsel. That on the hearing of the proofs (the contestant who had claimed under an alleged former will having withdrawn his contest),, the counsel for the special guardian had contested the probate of said will.' That the special .guardian, having consulted .with his said counsel, .is adyised that, the testimony elicited and to be elicited in this case is,' in his opinion, sufficient to cause the- said will to be rejected, and probate thereof denied; and that the same ought to be rejected :and denied admission .to probate, for the cause of undue and improper, influence and restraint exercised over the. decedent by., said Matilda, Amelia Chittenden and; others. That'the. spécial guardian has. determined that the pecuniary-interests .of, his ward will-best.be served and advanced by the continuance of. the. opposition tq the-prebate of the. allegéd will, for the following reasons- First. The rejection of the alleged will would make his said ward, Lucia Chittenden,, sole heir-at-law to, her father’s real .estate, subject to the-dower right of Matilda Anaelm Chittenden, the widow;. that the real- estate of the decedent is valued at $900,000, of which the heir would take the value of. about $700,000, the widow’s, dower right being in valué about $200,000; making a difference of about $250,000. in favor of Lucia Chittenden, his ward, in case, of the rejection of the alleged will; Secondly. The rejection of -the alleged will would relieve his-ward, Lucia, from the executorship and-trusteeship of the estate, and the guardianship of her person .and property, which *257in said alleged will aré given to "her step-mother, said Matilda Amelia Chittenden, and to Jeremiah if. Áyres, both of whoin are exempted from giving "security for the ' faithful performance of their trusts by the provisions of the said alleged will. That the special guardian has, however, had two interviews and consultations with his said "ward, Lucia, and has received "several letters from her, in which she earnestly requests and demands that her special guardian and counsel shall withdraw all ftirther opposition to the paper propounded, and shall consent that it be admitted to probate at once ; that he hás Informed his ward of her interest, and has urged upon her his views as to the danger of entrusting the caté and management bf her •estate to any person or persons without security; that the answer of his ward, Lucia, "is substantially that she believes the paper offered for probate to be her father’s last will and testament, and wishes to abide by the same, and have the same established in all respects, Without reference to'what can be proven concerning "the same, and regardless of all results favorable' "to her pécüniary interests that could be gainéd by opposing the same; that his" ward is now twenty years of age, and will attain majority in April, 1869 '; that she is a young lady bf intelligence, culture and refinement, and "petitioner believes her to be'truly good and conscientious, and intending to do and act in all things "upon the basis of integrity and high-mofál principle; "that hey reverence for "the memory bf her fathei-is a strong and guiding element" in her mind, and she wduld avoid any trial or examination which would involve questions relating to or in "any manner impeaching "the strength or soundness of her father’s mind and physical condition during "the latter years of his life"; that his Ward understands perfectly, and causes the petitioner to understand perfectly; her Wishes and determination in the premises, "and "the petitioner is much moved thereby, and is anxious to seek' the true interests of his war'd in the premises; that he has no doubt of the action-he should *258take in order to protect the pecuniary interests of his ward, namely, to continue the opposition to the probate of "said will, and, that-he,-'considers -his duty as -special guardian ends here-p yet, the petitioner, also believes that the feelings, wishes and convictions of a young lady of íhe' age ahd-intelligence of his ward should' have’much weight and. consideration; and, deeming that the Supreme Court has - .the. power to - counsel and direct the action of the special guardian in the premises, he prays it"to: take the matter into consideration; and direct him in the premises as. may seem to be in accordance with.the-general interests and welfare of his ward. . . -

■ The petition being presented - to Hr. Justice Oaf dózo, at' Special .Term, he appointed Ethan. Allen,. Escp, as guardian' ad litem in that Court and proceeding, and referred the matters arising on the petition to George Shea, Esq:', as referee. " ' ::

Lucia Chittenden appeared before such referée, "and made oath thatfshe-desired the.-contest-in the Surrogate’s Court upon the-probate of the 'said alleged will; -to cease at once, and that it be admitted to probate. - .. The. Referee, reported in, conformity-with’hep wishes, and, --at, Special Term, on the,, 10th of -August, -1869,-Hr: Justice Gardozo presiding, - an-, order-was- entered accord: ingly, reciting the facts- and circumstances, and .-adjudging-, that the- said James C.-Spencer,- as special: guardian^, be- and he was thereby advised, authorized; ¡directed-; and’ required to-, withdraw and cease from all - further . opposition to, the probate-of the said will audits codicil,- now-pending before the .Surrogatemf the county ofifew York;

The special guardian appeared before the Surrogate on the, 11th- day of, August,-, placed on ,file a, copy. of. the above petition, report and order, and, in- obedience thereto,/ withdrew- from further contest, of, the ,paper. propounded. . The. Surrogate, upon the-proofs .before him, .thereupon-made and entered; a decrqe of probate, ■... , ... ;