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Opinion of the Court, per PORTER, J.

note, though made in New York, was payable in Illinois ; and its legal effect, so far as the maker was concerned, depended on the law of that State. The engagement of the indorser, though auxiliary in its character, was an independent contract; and it could only be fulfilled by direct payment to the plaintiffs, who were residents of the city of New York. The maker reserved the right to pay the note when it matured, at the bank of the appellant in Illinois. A qualified indorsement would have secured a similar right to the appellant; but as he made no such stipulation, in respect to the performance of his own conditional engagement, he was bound by the general rule of commercial law to fulfill it at the residence of the plaintiffs, unless he could find them elsewhere. (Everett v. Vendryes, 19 N. Y., 437.) His undertaking had its inception in this State as a subsisting contract. The fact that he wrote his name in Illinois is of no moment, if the engagement was consummated elsewhere. The note, with his indorsement in blank, was intrusted to his own agent for delivery to the plaintiffs in New York; and it was only on such delivery that it became operative as a mutual contract. (Cook v. Litchfield, 5 Seld., 280, 290; Hyde v. Goodnow, 3 Comst., 270.) It is clear, therefore, that the nature and extent of his liability depend on the law of New York, and not on the statutes of Illinois.

We are also of opinion, that upon the facts found the appellant would be liable to the plaintiffs, even under the provisions of those statutes. The liability of the assignor is fixed, without resort to a previous suit against the maker, where such a suit would be unavailing. The maker resided in Wisconsin, and the holders of the paper were not bound to pursue him into a foreign jurisdiction, as a condition precedent to recovery against the indorser in Illinois. (Schuttler v. Piatt, 12 Ill., 417; Olcott v. Tioga Railroad Company, 20 N. Y., 210.)

The order of the Supreme Court should be affirmed, with judgment absolute for the plaintiffs.

All the judges concurring,
Judgment affirmed.

Statement of case.

33 619 121 413

THE AMERICAN SEAMEN'S FRIEND SOCIETY and others, Appellants, v. HESTER HOPPER and others, Respondents.

(therming4 3 Barb, 625 It seems that, on questions of testamentary capacity, courts should be careful not

to confound perverse opinions and unreasonable prejudices with mental

alienation. The true test of insanity affecting testamentary capacity, &c., aside from cases

of dementia, or loss of mind and intellect, is mental delusion. A person, persistently believing supposed facts, which have no real existence,

against all evidence and probability, and conducting himself upon the assumption of their existence, is, so far as such facts are concerned, under an insane

delusion, If a testator at the time of making his will is laboring under any such delusion

in respect to those who would naturally have been the objects of his testamentary bounty, and the court can see that the dispository provisions were or might have been caused or affected by such delusion, such instrument is

not to be deemed to be his will. The costs of the appeal may be charged upon the proponent of an alleged

testamentary paper, where the court are of opinion that he has conducted improperly in the premises.

This is an appeal from a judgment of the Supreme Court, affirming a determination of the surrogate of the county of New York, which refused to admit to probate a paper propounded as the last will and testament of Charles Hopper, deceased. The alleged will bore date the 28th of October, 1861, and the deceased died on the first day of November, four days afterwards. The paper was propounded by Chauncey Shaffer, one of the two persons named in it as executors, on the 6th day of the same month of November. A citation was issued to the widow and next of kin, who appeared by proctors and counsel, on the return day, the 26th of December; and on that and several other days prior to the 11th of March, 1864, the proofs were taken, and the parties fully heard ; and on the last mentioned day, the surrogate made an order or decree, declaring Charles Hopper, the alleged testator, incompetent to make a will, and that the paper propounded was not executed and attested in the manner prescribed by law, and hence that he died intestate.

The appeal to the Supreme Court was by the residuary

Opinion of the Court, per DENIO, Ch. J.

devisees, the American Seamen's Friend Society, and the Ladies' Union Aid Society of the Methodist Episcopal Church of the city of New York, and by Chauncey Shaffer, one of the persons

named as executors. The order of the Supreme Court, affirming the decree of tlie surrogate, was made on the 1st day of May, 1865. The same parties who had appealed to the Supreme Court then brought the present appeal, making the parties who had contested the probate before the surrogate, parties respondent.

A. W. Bradford and B. J. Blankman, for the appellants.

J. T. Brady, for the respondents.

DENIo, Ch. J. Charles Hopper, the validity of whose alleged will is the subject of controversy on this appeal, died at his residence in Mott street, in the city of New York, on the 1st day of November, 1861, at the age of about sixtyseven years. He had no descendants living, but he left surviving him his widow, Hester, and a sister, Elizabeth Wiley, a widow, and six nephews and a neice, the children of a deceased brother, Thomas Hopper. Besides these, he left other relatives, not entitled to succeed to his estate upon intestacy, namely, three sons and a daughter of his sister Elizabeth Wiley, and a grandnephew, a grandson of his said sister. The widow of the deceased brother was also living. These relatives, for the most part, resided in the city of New York or in Brooklyn, though three of the nephews and the grandnephew lived in other States of the Union. He left an estate, the greater part of which was in buildings and lots in the cities of New York and Brooklyn, valued at between eighty and one hundred thousand dollars. By his will, executed when he was very ill, four days before his death, he appointed Chauncey Shaffer, a counselor-at-law, and Abraham M. Fanning, a real estate agent, his executors; and he constituted them trustees of all his estate not specifically devised. He gave to his wife (in addition to her dower), besides his beds, bedding, and household furniture and her

Opinion of the Court, per DENIO, Ch. J.

do so.

clothing, a house and lot in Brooklyn, on condition that she should release her dower in another house and lot in New York, which, in the subsequent part of his will, he devised to his nephew John R. Hopper and Mary Hopper his wife; but if she should elect to receive the rents of the house in Brooklyn and an annuity of $1,400 per annum, both for life, in lieu of dower in all his estate, he gave her the option to

He gave to Mrs. Colton, a married neice, the daughter of his sister, Mrs. Wiley, and her children, one dollar each; to the grandnephew, Charles Wiley, living at Janesville, Wisconsin, $300 per annum, until he should come of age, for his support and education. He devised to his said nephew, John R. Hopper and Mary his wife, a house and lot situated on the 10th avenue in New York, in fee, and to each of their children who should be living at his death, $100 each; “to each and every of the children of my brother and sisters living at the time of my decease, and who are not hereinbefore provided for, the sum of one dollar each, whether the parents of said children be living or dead at the time of my decease"; to Mary Russell, his nurse, the sum of two hundred dollars. All the residue of his property, real and personal, he bequeathed and devised to his executors, or to the one who should qualify, in trust as to the personal, to convert it into money, with all reasonable dispatch, and as to the real, to sell it within a reasonable time after the expiration of the existing leases upon it, and to divide the proceeds equally between the two charitable societies above mentioned as appellants; in the case of the Seamen's Society, to be applied to the benefit of shipwrecked and other destitute seamen, and in the other case, to the comfortable residence, support, employment, medical and other necessary cares of aged and infirm females.

Charles Hopper was either a native of the city of New York, or came there at an early age, and commenced life as a butcher in the Franklin market, which business he pursued for many years, and until he had accumulated a considerable estate; but he retired from business several years before his death, and thereafter had no employment except the manage

Opinion of the Court, per DENIO, Ch. J.

ment of his property. He had but little education; and he was quite illiterate, as is apparent from all the testimony and some specimens of his writing which were given in evidence. In early life he married the wife who survived him, with whom he lived on ordinarily amicable terms, down to about five or six years before his death. They had one child, a daughter, who lived to be married, but who died, without leaving issue, before his troubles with his wife and relations appear to have commenced. As to his character, disposition and habits, prior to the change in them which it is alleged occurred, the evidence shows that he was an active and energetic man of business, fond of gain and laboring hard to acquire property, and investing it with reasonable judgment and discretion. He was brusque in his address, positive, willful and headstrong in his purposes and opinions, and impatient of contradiction. He was coarse and profane in his conversation, and much addicted to the use of ardent spirits, though he was not often, until the latter part of his life, so far intoxicated as to affect his capacity for business. If his declarations may be trusted, he was a disbeliever in revealed religion; and he had taken up a very strong prejudice against ministers and clergymen of all religious denominations — believing, or pretending to believe, that they embraced the profession for selfish purposes, and employed it for base ends, especially in regard to the female members of their congre gations. I do not mean to say that all these disagreeable traits in his character were proved by any one witness, or are shown to have been manifested at all times; but they are the fair result of all the voluminous testimony in the case. Prior to the year 1855 or 1856, there is no pretense that he was not fully competent to make a testamentary disposition of his property. Even after that period, and down to the time of his death, whenever his state of health enabled him to be abroad, he continued to attend to the making of small purchases for the family use; and it was not usually apparent to those who dealt with him in such matters, that his mind was otherwise than entirely sane. During this period, the business of collecting his rents and investing his moneys was

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