Will of Judah Burton

Schoharie County NYGenWeb Site

Submitted by Karen Dakan

Lawsuit over Will of Judah Burton

Lawsuit over the will of Judah Burton Ė 1813

At a surrogate court held at the Village of Esperance in the town of Schoharie in the County of Schoharie on eleventh day of March 1813.

Present John Gebhard, Surrogate

Ezra Thompson Junior applied for letters Testamentary on the Will of Judah Burton deceased, by which will said Ezra Thompson Junior, Elijah Burton and Judah Burton Junior were appointed executors. At the same time Elijah Burton, Judah Burton Junior and Nathan Burton, three of the heirs mentioned in the said will objected to the granting letters testamentary on the said will, on the ground that Judah Burton the testator was of unsound mind and memory at the time he executed the will and of course was incompetent to execute it.

The will of said Judah Burton is in the following words:

In the name of God, Amen. I Judah Burton Senior of the Town and County of Schoharie and State of New York, being weak in body but of sound memory to this day blessed be God for the same, on the first day of January in the Year of our Lord one thousand eight hundred and thirteen make and publish this my last Will and Testament in manner following, that is to say,

First, I give and bequeath to my loving wife Eunice the one equal third of my estate for and during her natural life and after her death the same to be equally divided amongst my the (sic) surviving heirs in the same proportion as the residue of my estate is divided by virtue of this my testament, and the residue of my estate both real and personal to be equally divided between my heirs hereafter named Vz. Daniel, Nathan, Elijah, Stephen, Judah, Ephraim, the children of Henry one equal share, the child of Elizabeth one equal share, the children of Sarah the late wife of Ezra Thompson each of the same to be considered individually as full heirs to my estate by virtue of this testament, and also my daughters Hulda and Anna is to be considered as full heirs with the male heirs afore mentioned,

And I appoint my truly and well beloved friends Ezra Thompson Junior, Elijah Burton Junior my true and lawful executors as well for the purpose of attending to the faithful settlement of my debts due at the time of decease as to see and attend to the faithful division before mentioned that the same be carried unto full effect according to the true intent and meaning of this my last will and Testament, hereby revoking and disannulling all former wills and Testaments.

Signed, sealed and delivered by the said Judah Burton Sen. As and for his last will and testament in the presence of us who were present at the signing and sealing of same.

Judah Burton L. S.

Ebenezer Mudge
Samíl Snedecker
Samíl Tallmadge

The following witnesses were them produced by Ezra Thompson Junior to prove the above will Vz:

Ebenezer Mudge who testified that Judah Burton the testator was dead and that he subscribed his name as a Witness to the Will and did see the Testator execute the same, that he was not of sound mind and memory when he executed the sill nor was he capable of transacting the common concerns of life Ė he had been in a debilitated state fifteen or sixteen months before the will was executed and had been gradually declining until the will was executed. He died about two months after the will was executed. Witness had been acquainted with him five or six years prior to his death. The testator was capable of transacting business until about one year from the first day of September last, and from that time until the making of his will, he was the greatest portion of the time incapable of attending to his business from the weakness of his mental faculties. Witness did not hear the will read when it was executed nor did he know it was a will at that time when he subscribed his name as a witness to it. Witness visited the testator shortly before and after the execution of the will and that he appeared at times wild and unfitted in his mind and sometimes had intervals of sense. His answers to questions were generally regular unless just after he had awoke from sleep. About ten minutes after the will was executed Testator called to his son for a paper (a lease) which his produced. The Testator viewed it and his son immediately returned it. Testator immediately after called for the same paper, his son told him he had just seen it, he replied he had not, his son then again produced the paper, Testator viewed it again and then appeared satisfied.

Samuel Snedecker, another subscribing witness to the will testified that he subscribed his name as a witness to the will and did see Judah Burton the testator execute the same. Witness did not hear the will read at the time of its execution nor did he know it was a will at the time. Witness at the time tended the mill of Testator, but does not know whether he was of sound mind and memory at the time, but knows he was dull of apprehension and very irregular in his answers for some time before the will was executed. Witness was called in a hurry to attest the will and immediately thereafter returned to the mill which was going at the time. His own children conceived him incapable to transact his own business four or five months before the execution of the will on account of the weakness of his mental faculties.

Samuel Tallmadge testified that he was a sub___? witness to the will of Judah Burton and did see him execute it and that the witness wrote the will. Witness conceived that at the time the will was drawn the testator was of sound mind and memory, but immediately after the execution of it certain facts occurred which induced the witness to believe the Testator was of unsound mind and memory when it was executed, to wit, because immediately after the execution of the will one of the testatorís sons by the request of the testator brought him a paper (a lease) which Testator viewed and directed him to put it away, which was done. Soon after the Testator called for the same paper again, his son told him he had seen it, Testator replied I have not, the son then produced it again and testator appeared satisfied. Witness then first discovered evident marks of insanity in Testatorís mind. After the will was partly finished two of the testatorís sons objected to the witness that two of his Daughters were not mentioned in the will, Vz. Hulda and Anna. Witness then asked Testator what shall be done with Hulda and Anna, their names are not included in the Will. Testator replied do as you please about it. Witness says that after he finished the will he went to the bedside and read it to the testator and asked him if this was now his will. Testator replied that it was. Witness conceives that the testator was incompetent to execute a will at the time from the evident marks of insanity discovered immediately after its execution.

Dr. Abraham Berry testified that he was the attending physician of the testator sometime before and after the execution of his will and the very morning the will was executed and that the state of his mind was debilitated, unsteady and forgetful and could not remember one half an hour after he had eaten that he had eaten. His mind appeared to be in a decaying state particularly from the first day of December or about that time until his death. Witness did not conceive him to be capable of attending to any business whatever from the unsoundness of his mind and memory. Testator would send his negro servant on an errand and before he had been gone one half hour would not recollect that he had just sent him. Testator had intervals of sense but they lasted only a few minutes, especially when he undertook to transact business of intricacy.

Nathan Barlow was then sworn who testified that he was at testators very often before and after the execution of his will. Testator had while in health a very good memory which continued until his illness and then it almost entirely failed. Testator was of unsound mind and memory both before and after the execution of his will and perfectly incompetent to transact business. Witness was frequently in and out of testatorís house about that time and sometimes he did not know him.

The two last witnesses were produced by those who objected to the genuineness of the will on the ground of Testatorís insanity.

On above testimony, the Court decided that it evidently appeared that the Testator was in a deranged state at the time of the execution of the will and therefore incompetent to execute it. That the principal objection to the will appeared to be the unequal division of the property, to wit, by giving some of his grandchildren an equal share with his own children instead of devising to them that portion which would fall to their parents only. On that ground, no injustice is done to the grandchildren by the opinion of the court which is not conclusive against them. After they arrive at age, they may still seek for their shares under this will in a court of law & if the will prove good recover them.

If therefore any doubt remains as to the legal execution of the will, I should of course incline against it as a large personal estate is involved in this controversy and as Executors are not compelled to bind sureties for the faithful performance of their duty. Perhaps if the will should prove insufficient in a court of law injustice might be done to the heirs, whereas on the contrary Administrators must give justices for their good conduct and if they fail in performing their duty legally then justices are answerable & the heirs of course indemnified in the result.

Immediately after the above opinion Ezra Thompson Junior, Elijah Burton and Judah Burton applied to the Court for Letters of Administration for the Estate of Judah Burton deceased. They represented Eunice the wife of the said Testator to be perfectly in competent to administer on the Estate Ė that she was deaf and upwards of seventy years of age.

Samuel Tallmadge was then sworn who testified that Eunice, widow of the testator, was about seventy years of age and was deaf and wholly incompetent to manage the administration of the Estate of her late husband.

The Court decided that Administration would be granted to Ezra Thompson, son-in-law to the testator, Elijah Burton, and Judah Burton, two of his sons, which was accordingly done on the twelfth day of March eighteen hundred and thirteen. They were duly qualified to take upon them the Charge of administration and gave Ebenezer Mudge and Nathan Bartow as sureties who entered into a bond accordingly to the People of the State.

John Gebhard, Surrogate

I was appointed the Second time to the office of Surrogate for the County of Schoharie March 9, 1813. Qualified the 11th March, 1813.

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