39 N.J. Eq. 495 | N.J. Super. Ct. App. Div. | 1885
This is an appeal from a decree of the orphans court of Hudson county, admitting to probate the will of Margaret Devine, deceased, late of that county. The testatrix was a widow. She had never had any children. By the will, which is dated and was made on February 24th, 1876, she gave to her brother, Matthew Brady, for life, a house and lot in Jersey City, then occupied by him (she lived with him at that time), with remainder in fee to his daughter, Margaret Conlon, her namesake, and gave to his other daughter, Mary McBride, the adjoining house and lot, called the Lohman property, in fee. She gave the residue of her estate to her brother Matthew, and appointed him executor. He predeceased her. She died in 1883. He died in September, 1878. The will was executed with all due legal formalities. It was drawn by Mr. Garrick, a lawyer of Jersey City, who also superintended its execution, and was one of the witnesses. The testatrix was blind, and was probably about eighty-two or eighty-three years old. It appears, by Mr. Garrick’s testimony, that he drew a will for her in 1874, the instructions for which he received from Matthew, with whom she was then living, but it was not signed. After the draft of it was made, Matthew told Mr. Garrick that he need not call in reference to it until he should be.sent for. In February, 1876, shortly before the execution of the will in dispute, Mr. Garrick was sent for to go to the house of Matthew to see the testatrix. He went there and took with him the draft of the will of 1874. That paper gave to Mary McBride the Lohman house and lot, in fee, and all the residue to Matthew. It appointed Thomas Fitzimmons and Mary McBride’s husband, executors. The testatrix, after Mr. Garrick’s arrival at the house, gave him
As before stated, Matthew died in September, 1878. In October of that year a commission of lunacy was, on the application of Mrs. McBride, issued out of the court of chancery, under which, on the 12th of November following, there was an inquisition, by which it was found that the testatrix was of unsound mind, and had been so for the three years next preceding and upwards.
The testimony in reference to her testamentary capacity at the
Opposed to this testimony on the part of the proponents, is that produced by the caveators, consisting of the opinions of non-expert witnesses as to her competency, with the results of their observation of her mental condition. Their evidence is not such as to counteract the testimony of the witnesses who have testified to her capacity, and whose opportunities for observation were
The proof shows that there was great affection between the. testatrix and Matthew, so great that his death appears to have overthrown her reason. He not only cared for her tenderly while he lived, but made her welfare the subject of special charge on his death-bed, to -his daughter, Mrs. McBride, exacting from, her a promise that, come what might, she would always take care, of his blind sister. He brought the testatrix from her house in. another part of the city to his own, in order that she might live, there, in his family, and there is great reason to believe that he did it merely out of affection for her, and because she was not properly cared for at home, but was neglected, if not entirely deserted, by the nephew and niece on whonffehe relied for care and attention,, and whom she had herself brought over from Ireland to live-with her. There is no proof of fraud on the part of Matthew or his family to procure the testamentary disposition of her property in his or their favor. On the other hand, it seems that the will which was drawn in 1874, though it gave all her property except the Lohman house, to Matthew, was never executed, and when, in 1876, she proposed to malee a will, Matthew endeavored to dissuade her from it, by saying that there was time enough for that. The will of 1876 was less favorable to him than the proposed will of 1874, because it gave him only a life-estate instead of a fee in the property on which he lived. "When the circumstances and relations of the testatrix and the beneficiaries under the w.ill are considered, the will must be regarded as-a very natural one.
The order of the orphans court should be affirmed. The costs-of the appeal, with a counsel fee of .$150 to the counsel of each side, will be paid out of the estate.