50 N.J. Eq. 439 | N.J. Super. Ct. App. Div. | 1892
The question in dispute in this case is whether or not a writing purporting to be the will of Henry Bennett, deceased, is his will
That the writing was executed in strict compliance with the requirements of the statute is not disputed, but its admission to probate is resisted on two grounds—-first, it is said that when it was made the testator did not possess sufficient capacity to make a valid will; and, second, it is charged that the writing is the product of fraud.
In attempting to establish the first ground the caveators have proved, that when the testator was a lad he was thrown or fell from a horse and fractured his skull, and that subsequently, to relieve his brain from the pressure thus produced, a small piece
This summary, I believe, embraces every fact to be found in the evidence possessing the slightest weight or force in proof of incapacity.
The evidence offered to prove capacity shows, that prior to the execution of the will the testator was a director of three corporations—a fire insurance company, a gas company and an electric-light company—and that he continued in these offices, discharging the duties of each, up to the time of his death; so far as appears, none of his fellow-directors or any stockholder of either corporation ever doubted his competency or fitness; he retained control of all his business affairs up to the time of his death and managed them with prudence and sagacity; on the 19th day of April, 1889, a little over a month after the execution of his will,, he negotiated a contract for having his buildings painted and reduced the contract to writing; the part he took in this transaction, as described by one of the persons with whom the contract was made, show's not only that at that time he had a sound mind and knew how to make a good bargain, but also that he knew how to guard and protect his rights. The contract was put in writing at his suggestion, and he wrote it himself without assistance. One of the parties to the contract says that he mentioned
Now, whether this evidence is considered as a whole or separately, and thus placed in contrast, it does not seem, to me, according to the standard of testamentary capacity firmly established in this state, that -there can be the least doubt that the testator, at the time he executed the writing in question, was competent to make a valid will. The evidence shows, I think, beyond all doubt, that at that time he possessed a mind and memory sufficient to enable him to know and to understand, thoroughly and perfectly, the business in which he was engaged. He knew of what his property consisted, who were bound to him by ties of blood, and, therefore, the natural objects of his bounty, and how he wanted his property distributed after his death. A knowledge of these things constitutes, as I understand the law, perfect testamentary capacity. By our law the right of testamentary disposition may be exercised by a person of very moderate capacity. He must have a sound and disposing mind and memory, but his memory may be very imperfect; he may not be able, at all times, to recollect the names, the persons or
The charge of fraud is made in two forms. First, it is said, that it may be that the writing before the court is not the will executed by the testator, but that the whole of it, except the last page, containing the names of the testator and the subscribing witnesses, has, since its publication, been fraudulently substituted. This charge has no other foundation or support than, that Charles A. Bennett, junior, has had an opportunity to commit such a wrong. The will consists of two sheets, with writing on five pages, and the two sheets had been bound together by eyelets before the paper was handed to the testator to read on the evening of its execution. Immediately after* its execution, the testator directed Charles to take the will and to keep it, and from
The other charge is that the will is the product of undue influence, and Charles A. Bennett, junior, is the person who is .accused of having exerted the subjugating power. Stated generally, undue influence consists in the destruction of free agency, .and whether this be accomplished by a strong or slight exercise of power, or by force or peaceful means, is wholly immaterial, for if it appears to have been sufficient to destroy free agency, and to have constrained the person, whose act is brought in judgment, to do what was against his will, and what he would not have done if he had been left free, it constitutes what the law calls undue influence. The main, if not the only, evidence relied on to establish the truth of this charge, are the facts that Charles stood to the testator in a confidential relation, having for about ten years been his attorney; that he drew and superintended the execution of the will, under which, if it is admitted to probate, he will take nearly one-half of the testator’s whole estate, and that he persisted in doing so after his father had advised him, that, as he was to be the principal beneficiary, it would be prudent to have the will drawn by some other person. .By the civil law a will written by a person in favor of himself was void, but this was never the rule of the common law. By the common law the mere presence of this fact was never sufficient of itself to invalidate the will. The utmost effect it was ever entitled to, in any case, was to create a suspicion against the validity of the will of more or less weight, according to the circumstances of each particular case. In some of no weight at all, as where the gift to the draughtsman is small in amount or of
No matte,r if the will is drawn by the principal, or even sole, legatee, if it is made by a testator possessing adequate capacity, and it is shown that he knew its contents when he published it, and it appears to have been executed in the manner prescribed by the statute, the court must, in. obedience to the law of the land, uphold it as the will of the testator and admit it to probate, unless satisfactory evidence is produced showing that it is the product of fraud. Every person competent to make a will has a right, as incident to the right of testamentary disposition, when he desires to put his testamentary wishes in legal form, to the aid of any person he may think proper to select—his right in this respect is absolute—and when he exercises this right according to his own mind, free from all improper control, though he selects the person he intends to make his principal beneficiary, that fact, standing alone and in the absence of any evidence tend
There is nothing strange or unnatural about th'e selection made by the testator in this case; on the contrary, it is obvious that he did just what almost any person in his situation in life, with his feelings and knowledge, would have done under like circumstances. Charles was his favorite nephew. He had a stronger love for him than for any other person. This is shown not only by the fact that he gave him nearly one-half of his whole estate, but by a long course of conduct. When Charles ivas admitted to the bar in 1878, the testator at once manifested an interest in his success by giving him what little legal business he had to do, and he continued to do so up to the time of his death; at the time he made up his mind to have a will drawn, Charles had transacted his legal business for him for about ten years, and he had evidently transacted it in a manner to satisfy and please his uncle; the testator resided but a short distance from Charles’ office, and visited him there almost daily; his intercourse with Charles, for years prior to the time when he made his will, appears to have been more frequent, his intimacy with him closer and his affection for him stronger than for any other person. This selection, therefore, of Charles as the draughtsman of his will was perfectly natural; the selection of any other person, in view of the circumstances just stated, would have been so contrary to the ordinary course of such events as to have provoked both surprise and suspicion.
While no court has power to refuse probate to a will because the disposition the testator has made of his property by it appears to the court to be unreasonable or unjust, for the very obvious reason that his right to make a will necessarily embraces the right to make any disposition of his property that his feelings or his judgment may approve, and for the additional reason that the testator, in deciding how his property should be distributed, may have been controlled by secret affections or hate, or by hidden motives and purposes, which, if known and understood
But a single other fact will be adverted to. When the will was executed the land devised to Charles was subject to a mortgage of $2,500. The mortgage stood as collateral to the testator’s own bond. He was primarily liable for the debt. The testator, acting through Charles, paid this debt in the spring of 1892, and had the mortgage canceled. He did so, as appears, of his own volition, without persuasion or- suggestion. Charles admits that, although he knew for some time before the payment was made that the testator intended to make it, he at no time informed or instructed the testator as to the effect the payment would have on the land which the will devised to him. He says they never had any conversation on the subject. Charles’ omission in this respect, it is contended with apparent sincerity, furbishes evidence that his conduct towards the testator, not only in 1892, when the mortgage was paid, but also in 1889, whem the will was drawn and executed, was inspired and controlled by a fraudulent purpose. This contention, in my judgment, is utterly without substance, being scarcely specious in its logic. When ■the mortgage was paid,- the mortgaged premises were still the property of the testator, and although he had made a devise of fhem, his will, until his-death, remained ambulatory, subject to both change and revocation. In paying the mortgage he simply -did what it was his legal duty to do. If Charles, by importunity or threats, had constrained him, against his will, to pay this •debt, he would have done nothing wrong. A man cannot be improperly or unduly influenced to do what it is his legal duty to do. Every debtor who pays under the stress of judicial process, acts under coercion, and does what is against his will. But, in addition, as the debt was the personal debt of the testator, for which he was primarily liable, it is clear that, if it had remained unextinguished at the time of his death, Charles, as the devisee
As the conclusion of the whole matter, my judgment is, that nothing whatever has been shown which raises a substantial doubt that the writing in question is the true last will of the testator.