2 N.J. Eq. 220 | New York Court of Chancery | 1839
This is an important cause. The amount of property involved is large, the questions arising new with us, and some of the charges made against one of the defendants-of a very serious and distressing character. My desire to come to a just and sound, conclusion, has been in due proportion to. the'magnitude of the case.
The complainants are children (five sons and one daughter) of Benjamin Bailey, deceased, late of the county of Morris, in this state. They allege, that their father at the time of his death was seized in fee of a large real estate, which-he devised to them in the manner therein stated, by his last will and testament, duly executed in,the form prescribed by the laws of this,state. The will is said to bear .date on the twenty-first of May, eighteen hundred and -twenty-nine, and the testator to have died on the sixth of June, eighteen hundred and thirty-three. They further allege, that their father kept his will locked up in' a desk in his own house until his death, immediately after which the lock of the desk and of the drawer -in which the will was kept was bro-en open, and the will taken out and carried away. They further allege, that at the funeral of their father, their sister Delia Stiles, under pretence of sickness, refused to go to the grave, but remained at -the dwelling, and then and there, as they are informed and believe,'."broke open the said desk; and that their said sister, with the connivance of her husband, William Stiles, in this manner clandestinely took the said will, and has either destroyed pr suppresses and conceals the same. The bill, after stating this charge of spoliation, prays that the defendants may ■be compelled to produce to this court the said last will and testament, of that the tr,ue contents thereof, in case it.be lost, destroy
The defendants are two of the testator’s daughters with their husbands, and the children of a deceased son, to whom the testator gave no part of his real estate. These defendants met this case in the first instance by two demurrers, one of them denying the whole equity of the bill, and the other as to so much of the bill as charged upon Mrs. Stiles the spoliation of the will, claiming the protection of the court as to Mr. and Mrs. Stiles from answering, on the ground that such answer might criminate them. The first demurrer was overruled by the court, and the last sustained so far as relates to Mr. and Mrs. Stiles. The effect of this •decision was to establish in this very case the jurisdiction of the court upon the facts stated in the bill, so far as those facts were well pleaded, and to exempt Mr. and Mrs. Stiles from answering so far as they are charged crimiualitcr, and that without prejudice!. The question of jurisdiction was considered on the present argument, and properly so, as having been settled by the decision on the first demurrer, which brought up the whole case made by the bill for discussion and settlement. In a case of spoliation the power of this court is too well settled to admit of further question. 1 Madd. Ch. Prac. 325-6 ; 3 Atkyns, 359 ; 2 Vernon, 380, 561; 1 Vesey, sen. 387; 1 P. Wms. 731; 2 Ibid. 748 ; 2 Story’s Eq. 671.
Taking the power of the court to be established, I proceed to examine and see how far the complainants have sustained themselves by evidence.
1. The first question, and the one which lies at the foundation of all the rest, is, whether Benjamin Bailey left at his death
2. The second, and by far the more difficult question to settle,
John Johnson, a subscribing witness, testifies, that he was present at the execution of the will. He was- sent for for that' purpose. William Bailey the son, Mrs. Bailey the widow, David Thompson, Ephraim M. High and the witness, were present. The testator put his hand on the seal and acknowledged that he signed, sealed and published it as his last will and testament. He was of sound mind. Mr. Thompson and the deponent signed their names, and Mr. High made-his mark,- as witnesses, in the presence of the testator. He saw Mr. Thompson sign his name and Mr. High make his mark.- As to the testator’s signing the will in the presence of- the witnesses, the deponent answers, he does not recollect seeing him sign his name.- He thinks the testator’s name was signed to the will when he first saw it. This witness gives a very rational account of the whole matter, and makes out a complete execution of the instrument, except as to
But we have another witness who was present, although not a subscribing one, and her evidence becomes very material. This witness is the widow, Mrs. Deborah Bailey. She is the mother of all these children, and she has released all her claim under the will; she is therefore a competent witness, and for aught that appears worthy of credit. She recollects the circumstance of her husband’s signing the will. She was sitting behind him, holding him up in bed at the time he signed it. At the time he wrote his name to the wiil, she swears positively that the subscribing witnesses were present. She also proves the reading of the will to the testator, before the witnesses came in.
These two witnesses, Mr. Johnson' and Mrs. Bailey, it is manifest from the depositions, have been pressed by counsel on their examinations very much on this point. It will be seen that they have placed their answers to this part of the case in different shapes, but from a careful and fair view of it all I can give to it no other meaning than this: Johnson answers negatively that he does not recollect seeing the testator sign it, ánd Mrs. Bailey swears affirmatively that he did sign it in the presence of the witnesses. The rule of law is clear in such case; the affirmative witness must prevail. There is one consideration here worthy of being noticed. The will was executed in the year eighteen hundred and twenty-nine, and the witnesses were examined in eighteen hundred and thirty-five. A period of six years had passed, and it would be no very strange occurrence that even a subscribing witness should not remember every thing that took place at the time of the execution. Mr. Johnson, although evi
The next matter relates to the fact of spoliation-.. Was this will in fact, as charged,, fraudulently taken away- ?' That there was a will made, and that it,was kept by the testator in a desk in his -house, is clear.. The widow swears that it was in the desk during her husband’s last sickness. ■ Only three or four days before his death he requested to have it, and she got the key and-her son William went and - got the will and brought it to his-father. He then told William to take it home with him and keep it. As William- was going out of the door he changed his-mind, and told him it would not look well to have it taken out of the house, and desired him. to put it back again. She also* swears that she saw the will again in the desk the day after her husband’s death. This evidence is uncontradicted,. and there is-no proof in the whole case of any cancellation by the testator, or that he ever had any intention of so doing.- This was on-Saturday, the very day the testator was buried. On Monday morning thereafter the will was gone, and all the witnesses agree' that there was- on the desk marks of its having been broken open. The charge is, that Mrs. Stiles, one of the daughters, for whom-a small provision only was. made by the will, while the family had gone down to the grave- to bury her father, perpetrated the act. This is a serious charge, and should be sustained by the clearest evidence before it can be believed. The mind revolts at-so -shocking a transaction. She did not go to the grave; and one witness only, [fa P. Goble, is brought to make out the
Upon such a state of facts, I will not say that Mrs. Stiles car
The only remaining point is to ascertain the contents of the will. Here, I must confess, there has appeared less difficulty on ■investigation than I feared at the time of the argument. The testator had five sons and three daughters living at his death, ¡and. two grandchildren, who were’the objects of his bounty. These son's were men approaching .the middle of life. The .eldest was forty years of age. They all labored under their father, and he took all the profits. They all lived ait home' except William. The testator was also the owner of several distinct farms and places known by certain names. Mrs. Bailey says ¡she heard the will read by Mr.’ Thompson to her husband, and she recollects th,at he gaye to William the grist-mill, saw-mill, and .the Hamilton lot. To Henry he gave the Nesbit farm and half .the Swamp-meadow. To Mills he gave the old Bailey farm, the Hawkins lot, and the Sand-spring-lot. To Charles he gave the Yanhouten place. To Ebenezer he gave the homestead and h.ajf ¡the Swa,mp-meadow'. To Caroline he gave the Glasby farm and one hundred-dollars. To Mrs. .Stiles and Mrs. Bockover, four hundred dollars each, and a legacy of one hundred and fifty dollars to the two daughters of her deceased sou John.
John Conway testifies, that he was a neighbor of the testator, and had a conversation with him about a month before his .death in relation to his will. He told him that he had made a ¡¡will, and went pn and specified the different parcels that he had
But there is far more certain evidence than even this of the contents of the will. David Thompson, who drew the will, it appears from Mrs. Bailey’s evidence, wrote two papers as she thinks, and took the first one he drew home with him. He said it was customary to do so, for fear one might be destroyed. Mr. Thompson is dead, and his brother Stephen Thompson, who is his executor, has produced a paper, which he swears he found among his brother’s papers, which is made an exhibit, and is marked Exhibit M. 1, on the part of the complainants. This paper, and the endorsement upon it, are proved to be in the hand-writing of David Thompson ; and by it we find the very same disposition made by the testator of his property, as stated in the evidence of Mrs. Bailey and of Mr. Conway. On this paper is this memorandum, in David Thompson’s hand-writing: “ Benjamin Bailey — outlines of will, Friday, May 21st, 1829; given by him to me; I wrote the will, and it was executed — witnesses, David Thompson, — Johnson,---High. High made his mark.” Comparing this memorandum with the whole evidence, there can be no reasonable doubt that this paper contains the wall of the testator. All the particulars agree; the time, the names of the witnesses, the person who drew the papers, and the fact that High, instead of writing his name, made Ms mark.
In looking at this draft of the will, there is no difficulty about the real estate. The devises are all plainly made, and the same js true of the specific legacies. There is some embarrassment in the clause disposing of the residue of the personal property. The clause on this subject directs it to remain in the family for six years, and then to be divided equally among the four youngest sons, Mills, Henry, Charles and Ebenezer. But there is a bracket enclosing at the side this clause, with the words written, “ this altered and at the foot of the writing are added the words, “ must remember to divide the peisonal property.” As the first clause, which was to be altered, gave the residue to certain of the
Entertaining these views of this case, it remains to be considered what relief can be afforded by this court'. The court may grant relief in three’ ways : by making the injunction perpetual, restraining these defendants from prosecuting.any suit to disturb the complainants in the possession and enjoyment of their respective tracts; by directing a release on the part of the defendants of all their-right iri said lands to.be made to the complainants; or by a decree establishing the will in all its pans. 2 Vernon, 441; 1 Dickens, 32; Seaton's Decrees, 63. The last should be adopted whenever the contents can be ascertained; and in the present case, being satisfied on this point, I shall adopt that course.
The writing contained in Exhibit M. 1, on the part of the complainants, must be taken as the contents of the instrument-disposing of the residue of the personal property, after paying the specific legacies, among all the children of the testator living ,at Ms death. -As the .spoliation is not proved to have been committed by the defendants, or any of them, the costs on' both sides must be paid out of the testator’s estate.
It has been no easy task to settle all the points of this case. I have done so to the best of my judgment, and, I hope, in a manner consistent with the truth and justice of the case. There is one view which pervades the whole; that the testator left a will which has been fraudulently disposed of, and that the complainants should not lose the estate which their father intended for them for the want of that aid which every citizen is entitled to
Decree accordingly.