The opinion of the court was delivered by
The issue here concerns the legal sufficiency of a paper writing bearing date June 7, 1954, purporting to be the last will of William G. Blake, who died July 23 ensuing. It is conceded there was due execution of the instrument as a testamentary disposition of an estate amounting to $17,000. In the Probate Division of the Essex County Court and the Appellate Division of the Superior Court the eaveatrix, Florence E. McConnell, the deceased’s niece, pleaded the want of testamentary capacity and, on the contrary hypothesis, the procuring of the will by undue influence exercised by the lawyer-draftsman, Louis J. Beers, who was named as sole beneficiary and executor.
There is no contention now of testamentary incapacity when the will was made. The brief tendered by the caveatrix does not raise the question: and it was not presented on the oral argument. The insistence is that since “the proponent of the will is an attorney who drew the will and is also the sole beneficiary thereunder,” there is a presumption of undue influence and the burden of refuting it has not been sustained.
It is said in argument that “all reasonable presumptions and intendments consistent with the record will be indulged in favor of the validity of the judgment” denying probate, and, moreover, the “credibility of witnesses is a subject matter wholly within the province of the trial judge, and as long as there is testimony in support of his factual findings it should not be disturbed.” “Testimony neutralizing the presumption,” it is affirmed, “is not sufficient; the presumption must be completely overcome and, to achieve that end, the testimony must be clear, impeccable and convincing.”
The burden of proof in the sense of the risk of non-persuasion rests with the contestant who would deny probate for undue influence; and, though the burden in this regard does not shift where there is a confidential relationship, such as the relation of attorney and client between the draftsman and sole beneficiary of the paper writing tendered for probate and the maker of the instrument, yet in such case circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise to a presumption of undue influence, and there is cast upon the proponent attorney-beneficiary the burden of coming forward with evidence in quality and force sufficient to dispel the presumption. In such a confidential
Against a beneficiary “having a testator under his control, with power to make his will the will of the testator, especially in a case where the testator has made an unnatural and unjust disposition of his property, the law wisely presumes undue influence, and puts upon the beneficiary the burden of showing, affirmatively, that when the testator made his will he did not exercise his power over the testator to his own advantage and to the disadvantage of others having an equal or superior claim upon the bounty of the testator.” Carroll v. Hause, 48 N. J. Eq. 269 (Prerog. 1891).
But in the very nature of the term, influence is not undue in this regard unless it constitutes moral or physical coercion destructive of free agency. Even persuasion, much less mere suggestion, is not undue influence either in the legal or the moral sense if freedom of will remains intact.
“It is not the influence acquired by kind offices, or even by persuasion unconnected with fraud or contrivance; though if persuasion or other means of influence be connected with fraud, it may admit of a far different consideration. Fraud may be employed as means of influencing, and may afford ground for impugning a testamentary act no less than force, and the peculiar relation between the testator and the party benefited, as client and attorney, &c., when the former was weak and liable to imposition, has been held to furnish strong presumptions in regard to undue influences.’ Den ex dem Trumbull v. Gibbons, 22 N. J. L. 117, 158 (Sup. Ct. 1849).
But to “attempt to persuade a testator, however, is treading upon dangerous ground, for the result may be that he will be led to assent to that which, of his own free will, he would
A will cannot be set aside merely because it is “unequal or unjust.” “If capacity, formal execution, and volition appear, the will of the most impious man must stand, unless there is something, not in the motives which led to the disposition, but in the actual disposition, against good morals or against public policy.” Den ex dem Trumbull v. Gibbons, cited supra, 22 N. J. L., at page 153. If the animus testanti be established, then fulfillment of the declared testamentary purpose becomes a peremptory judicial duty, unless the requisites of form and execution have not been met. If there be mental capacity and freedom of will, the testamentary disposition prevails as the exercise of a right of ancient origin confirmed and regulated by the Statute of Wills. It is fundamental that whatever may be the quality and scope of the legislative power to regulate and control the testamentary transfer of property, there is no judicial superintendence of the reason and wisdom of the testamentary act, save as it offends against positive law or imperative public policy. See United States v. Burnison, 339 U. S. 87, 70 S. Ct. 503, 94 L. Ed. 675 (1950). Undue influence is in a sense related to capacity, for one under constraint destructive of free will is not possessed of capacity for the particular testamentary act. The voluntariness of the act is the essential point in issue. There may be weakness of intellect and will, as a result of age or disease, that makes for ready submission to the importunities of the one who has dominance in virtue of the trust relation. The question is whether there was a free exercise of judgment and discretion.
In a word, a presumption is not to have artificial evidential weight; yet the finder of the facts may draw the natural and logical inferences from the facts which constitute the basis of the presumption. New Yorlc Life Insurance Co. v. Gamer, 303 U. S. 161, 58 S. Ct. 500, 82 L. Ed. 726 (1938), 114 A. L. R. 1218. Presumptions “are artificial rules which have a legal effect independent of any belief, and stand in the place of proof until the contrary be shown.” Smith v. Asbell, 2 Strob. 141, 147 (S. G. Ct. App. 1846). See also Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U. S. 104, 62 S. Ct. 156, 86 L. Ed. 89 (1941), Stone, O. J., holding that the burden of proof “in a litigation, wherever the law has placed it, does not shift with the evidence.” When substantial evidence contrary to a presumption is introduced, “the underlying facts that originally raised the presumption may or may not retain
The principle is embodied in the American Law Institute's Model Code of Evidence. Buie 704 affirms, with one exception not material here, (1) that when the basic fact of a presumption has been established in an action, the existence of the presumed fact must be assumed unless and until evidence has been introduced which would support a finding of its nonexistence or the basic fact of an inconsistent presumption has been established; and (2) when the basic fact of a presumption has been established in an action and evidence has been introduced which would support a finding of the nonexistence of the presumed fact or the basic fact of an inconsistent presumption has been established, the existence or nonexistence of the presumed fact is to be determined exactly as if no presumption had ever been applicable in the action.
Here, the burden of adducing evidence sufficient in quality to overcome the presumption of undue influence has not been sustained. There has not been the candid and full disclosure requisite to dispel the presumption of constraint of will and volition rendering the supposed testamentary act involuntary and devoid of the animus testandi.
When the will was made the testator was 66 years of age, gravely ill and rapidly deteriorating from long-standing diabetes mellitus, indeed on the verge of dissolution, as the event proved. There was gangrene and a “bleeding toe,” and a leg had been amputated. And there was the general debility characteristic of the last stages of the disease. A bachelor, the testator for the last 15 years of his life had lived alone in a single third-floor room of a rooming house at 19 Warren Place, in Newark. He was oppressed by loneliness; he yearned for friendship, the more so as his progressive disease
In all seeming the testator was not close to his kin, a brother and two nieces, one the caveatrix. He had contact only with the caveatrix during his latter years. Presumably, he had but small hope that the caveatrix would be able to minister unto his needs as his disability increased; and he had in mind the advantages of a “rest home.” His physician, Dr. Gennell, had suggested this course; and the testator discussed it with the respondent Beers, whom he esteemed as a friend and adviser. But he was reluctant to make the change; and it is quite likely that he was not convinced the need was imminent, nevertheless, the time had arrived for making his will. Yet he was unsettled in testamentary intention; and it would seem to be a fair assumption that he considered testamentary disposition in relation to his worsening physical condition and his future care. So far as appears, it was his first will; certainty, there had been none for some years before. His uncertainty and confusion of mind is revealed by his course of action.
The testator had made the acquaintance of Mr. John J. Smyth, a member of the New Jersey Bar, in a restaurant patronized by both on occasion; and on June 2 preceding his death he asked Mr. Smyth, in the restaurant, whether he would prepare his will and, receiving an affirmative reply, he made and kept an appointment for the afternoon of that day, when Mr. Smyth was instructed to draft a will naming the caveatrix as his sole beneficiary, for execution the following day. Mr. Smyth testified that he inquired of the testator as to “other members of his family” and the nature and extent of his property, and was told: “You don’t have to know that. I want to leave everything to Florence E. McConnell, my niece. She is the only one that has done anything for me.” On the following morning, the testator telephoned to Smyth, saying: “About that thing we were discussing, I wonder if you could put it off. I am too upset.” Mr.
The testator had known the proponent Beers for 25 years, or more; as said, he had come to know him as a friend, one whose interest in him seemed to be something more than mere professional concern, one to whom he would go for counsel in time of need. And Beers was his attorney when the occasion demanded, although on the witness stand he seemed to have lost all recollection of professional engagements for the testator, even a partition suit brought in his behalf several years before, to which the caveatrix was a party defendant, later explaining he had made no charge for legal services rendered the testator, in this or any other matter, which is not altogether credible. But there was the social element in their relations, fostered by Beers; and the result was fairly frequent calls by the testator to the office of Beers, unrelated to professional affairs. The friendship was gratifying to this lonely man. Among his papers after death there was a $1,000 life insurance certificate issued to him October 17, 1949, when he was in the employ of the Ronson Art Metal Works of Newark, under an employees5 group insurance plan, payable to Beers as beneficiary. The certificate was effective without change of beneficiary when death came, although Beers mistakenly believed it had lost its efficacy by the termination of the testator’s employment; and payment has been made to him. There can be no doubt of an intimacy of relation beyond the professional, a circumstance bearing strongly upon the confidence, dependence and sense of reliance inspired by the association.
The proponent testified that the testator called at his office on the very day, it would seem, of his instruction to Mr. Smyth, in his office, to prepare a will naming the caveatrix as his sole beneficiary, in fulfillment of what seemed to be a settled intention, and made known a set purpose to designate him, Beers, his sole testamentary beneficiary and asked that he draft a will accordingly. He quoted the testator thus: “I want very little money spent for my burial, because they don’t pay any attention to me. I have a bleeding toe
But immediately before the execution of the will, said Beers, he asked the testator: “Who are your closest relatives, the objects of your bounty, as required by law, and what you have to give away by your will, if you know ?” “And then,” Beers continued, “he told me that he has a niece; I think she was the daughter of a brother; and he had another brother, I believe. He referred to them as ‘they,’ and he referred to them more than once as ‘they.’ He said ‘You know, because of my bleeding toe, my artificial leg, and I have diabetes, they don’t seem to want to be near me, or have me near them.’ ”
This, notwithstanding the testator’s instructions to Mr. Smyth, that very day, to draft a will naming the eaveatrix as his sole beneficiary, since she “is the only one that has done anything for me.” The counsel and advice given by Beers we do not know; but there can be no doubt that he was not averse to this unexpected beneficence of an obviously ailing client. His inquiry as to the natural objects of the testator’s bounty was purely pro forma; at all events, we
Beers admitted the testator was “interested in getting into Ivy Hill,” the City-owned “rest home.” He quoted him thus: “They treat you so nicely there; I understand they take diabetics.” Beers replied: “Yes, and I know some very fine men there, William, and I believe I can get you in.” Beers said he “called a woman who has an office on Market Street and made an appointment for him”; “and
The testator’s landlady testified that on June 7 a man who identified himself as “Mr. Beers” (she did not know him) called on the telephone when the testator was absent and said, “When he comes in, tell him I want to see him on something important.” She delivered the message when the testator came in about noon. He left immediately, and did not return until 6 P. M. She fixed the day by a notation made on a rent receipt which was the subject of controversy on that day.
The testator was aware of the execution and content of the will. The caveatrix testified that two days later, June 9, on a visit to his room, he told her he had made a will “on Priday” which “gave everything to Mr. Beers.” But, she said, he expressed regret, characterizing the act as “something terrible,” something he “shouldn’t have done,” and said, “I will get it straightened out.” And while a patient at a Newark hospital, from June 13 to June 21, she said, the testator indicated “a desire to change his will,” and designate her as his sole beneficiary. She was corroborated in this by her husband.
And there was corroboration by a disinterested witness, Hyland, a license inspector on the staff of the City of Newark, a life-long friend of the testator. He said the testator was “melancholy,” “despondent over his condition, and he just wandered in his conversations.” He told him he was “in
Dr. Gennell testified that the testator was “weakminded”; the nurses complained of his “behavior” in the hospital; and he talked of suicide; the mental deterioration was “more apparent during the last few months of his life”; and he doubted his testamentary capacity. During the last year of his life, the testator was hospitalized on six occasions, for varying periods of time.
Through a professional connection with the institution, Beers kept in touch with the movements of the testator in and out of the hospital, without personal contact with him; he knew of his hospitalization from June 13 to 21, after the will was made, but he was “too busy” to pay him a visit. He inquired of Dr. Gennell as to his “physical condition”: he was looking for “some good news,” that he would “live on,” and “wasn’t in any worse condition,” but he was told that he “had a bleeding toe,” and there was nothing “that was added to make me feel that his chances of living longer were better, or anything like that.” All this from Beers himself, suggesting in the context of all the circumstances and the manner of giving the testimony that he avoided a meeting with the testator, fearing he would lose the advantage attained.
And even though the proponent’s testimony, standing alone, be deemed sufficient to neutralize the presumption, on the whole ease the inference of undue influence is clear and compelling. It is a rational deduction from the circumstances tantamount to proof of the fact.
This is a case in which witness-demeanor is of inestimable value in the assessment of the testimony. Judge Cañero, after a searching inquiry of his own, concluded “without any hesitancy” that the testator, “ill in mind and body at the time of the execution of the will, was the subject of undue influence, or at least, that the proponent has not rebutted such presumption; * * * but on the contrary has left many things go unexplained, confused, contradicted and inconsistent, so that I can place little or no credence in what he has said ox done.”
Our courts have on occasion said that where a testator wishes to name his attorney or a member of his attorney’s
The judgment of the Appellate Division is reversed, and the judgment of the County Court is affirmed; and the-cause is remanded for proceedings accordingly.
For reversal—Chief Justice Vanderbilt, and Justices Heher, Jacobs and Brennan—4.
For affirmance—Justices Oliphant, Wacheneeld and Burling—3.