56 N.J. Eq. 333 | N.J. Super. Ct. App. Div. | 1897
James Ledwith died in the township of Saddle River, in Bergen county, on the 9th of July, 1894, at the age of eighty-four years, leaving a paper, which was executed as his will on the 15th of May, 1890, the validity of which is the subject of the present contest. His wife died many years ago. He had three children — a son, James, who died in Brooklyn, New York, on the 13th of January, 1890, leaving a wife and two children, one of whom was born after his death, and died within a few months after its birth, and two daughters — Julia, who, after a lingering illness, died of consumption in July, 1892, and Annie, who married one Claffey, from whom, during the time in question in this controversy, she was separated.
In early life Mr. Ledwith lived in New York City, and was there engaged in the business of selling liquors, from which, and through economy, he amassed enough money to enable him to own two tenement-houses, built upon a single city lot, fronting upon East Twelfth street, near Avenue A, in New York City, to buy a few building lots at Saddle River, and to purchase and stock a small farm, which lies partly in Bergen county, in this state, and partly in Rockland county, New York,
The disputed will contemplates this disposition of his estate: The payment of his debts, a bequest of $1,000, charged upon his entire estate, to his brother Thomas and his two daughters, who are the executor and executrices, in trust, to be divided into as many parts as there shall be children of his son James, and invested and paid to those children respectively upon their reaching twenty-one years of age, together with accumulations of interest, the mother of the children to take the $1,000 in case they should all die before reaching twenty-one years of age, and the gift of the residue of his estate to his two daughters, or to the survivor of them, at distribution, and should they both predecease him, to “ their heirs or next of kin.” Power to sell land is given to the executor and executrices. Prior to the residuary clause of the will, provision is made that the daughter’s shall have the right to continue to “ use and keep” the farm so long as they or either of them shall continue to live on the place.
The will was proved ex parte before the surrogate of Bergen county, and admitted to probate on the 10th of July, 1894. On the 24th of September in the same year an appeal was taken to the orphans court by Mary Ledwith, as the guardian of her infant son, Vincent Ledwith, who was the surviving son of the testator’s deceased son James, and thereupon such proceedings were had that in 1896 it was decreed that the paper admitted to probate by the surrogate was not the will of James Ledwith, and that the order of the surrogate admitting it to probate be reversed. The matter is now heard upon appeal from such decree of the orphans court upon voluminous proofs taken in that court. The appellant is the testator’s daughter, Annie, and the respondent is his daughter-in-law, Mary, widow of the deceased son, in her capacity as guardian of her infant son, Vincent.
It is admitted that prior to his death in 1894 Mr. Ledwith completely, or almost completely, lost his mind. It is not disputed that he suffered from senile dementia. The inquiry through the evidence has been as to the stage the disease had reached when instructions for the will were given and the instrument was executed.
The respondent here and appellant in the orphans court insists that she noticed a change in Mr. Ledwith as early as 1886. Charles H. Armstrong and William Kruse testify that in June, 1886, Mr. Ledwith came to their houses, some eight miles from his home, and insisted, first at one and then at the other, that he lived there, and, being refused admission, that he remained in the neighborhood all the night and was taken by them to the poorhouse the next morning. They attribute his conduct to mental derangement. In the fall of the same year William W. Oldfield, a restaurant keeper of Spring Valley, says that Mr. Ledwith got off a train of cars from New York and was so bewildered that he started to go home the wrong way. The witness attempted to send him home, but failed to do so, and, as a result, he was again taken to the poor-house. Mr. Oldfield entertains the opinion that Mr. Ledwith was not under the influence of intoxicants, but, for the time, was mentally deranged.
George Saarosy, a merchant of Spring Valley, and Peter J. Christopher, a near neighbor of Mr. Ledwith, both witnesses for the respondent, testify that in 1887 Mr. Ledwith was in posses
As to the year 1888, the respondent testifies that Mr. Ledwith then exhibited mental enfeeblement by carrying about brush, pieces of wood and other things from place to place uselessly and apparently without object. Mr. Saarosy remembers that then Mr. Ledwith inanely, as it seemed to him, would repeat “aye, aye” in reply to questions, and that in the summer of that year he saw Mr. Ledwith making his way barefooted through underbrush and briars. Peter J. Christopher says that after harvest in that year Mr. Ledwith occupied himself in the aim
The respondent testifies that in the summer of 1889 she saw Mr. Ledwith wear a fur cap on the hottest days and two or three vests at once, and heard him express fear that the vests would be stolen, and also that she saw him put eggs in his pocket and aimlessly carry things from place to place, and that he then wandered away from home without knowing where he was going. Emma Christopher testifies that upon an occasion in 1889 she saw Mr. Ledwith come in his house and, after walking about restlessly, fake a cushion from a chair and throw it on the floor and after looking at the chair throw it also upon the floor, and then throw a shawl and some papers off a lounge and go to the water-pail, evidently to throw that also upon the floor, when his daughter Julia called out to him, “You crazy old fool, let that be;” also that she then saw him go to the fireplace and take a clock from the mantel and put it on the stove, and then dip his bands in some pots of cream behind the stove, and saw his daughter wash his hands and heard her say, “ He is a crazy fool.” She further says that the day after this, while she was churning at his house, he put rotten apples in the churn. She further testifies that in the same year, apparently unconscious of the impropriety of his conduct, he used the floor of his house in answer to the calls of nature. The father of this witness states that upon two or three occasions in 1889 the old man was so far demented that he failed to remove his clothing when he relieved his bowels.
Speaking of the year 1889, Peter S. Van Orden, a witness for the appellant, says that several times as he drove past Mr. Ledwith’s place, and stopped for a short time with the old man, he failed to notice anything irrational in his conduct or speech. To the same effect a Mr. Tallman, who was postmaster at Spring
It is remembered that Mr. Ledwith’s son died in Brooklyn on the 13th of January, 1890. He was buried on the 16th of the same month. The funeral was at Brooklyn. The proofs show that Mr. Ledwith and Mrs. Claffey went to the funeral, leaving home on the 15th so that they might be at the wake that night. They reached Brooklyn at two or three in the afternoon, and later went to New York to Mr. Ledwith’s property in East Twelfth street, There they visited Margaret Keenan, the janitress of the houses, and took supper with her. Mrs. Keenan says they came at seven o’clock in the evening; that she expressed sympathy for Mr. Ledwith in the loss of his son, and that he replied that he knew her feeling; that he inquired for her husband and son ; that he ate supper, but did not talk much until her husband came, and that he then talked with her husband; that when he went away he told her not to - give
The funeral took place early in the morning of January 16th. Mr. Ledwith attended it in a carriage accompanied by his daughter Annie and James and Jennie Gillespie. He had breakfast before he went, but during the remainder of the day, and until he got home to his house, three miles from Spring Valley, at night, he was without food. James Gillespie says that at one place where the parties stopped to drink, the old man had a glass of hot lemonade, but that that was all. The night’s vigil and the day’s starvation exhausted him. Both the Gillespies say he did not realize where he was going when he went to the funeral, and that late in the day, while he was still in the carriage, he became violent and tried to break out. It appears that after he reached home he so acted that one of his daughters said that he was out of his mind. Later in the evening, after he had his supper, he became more quiet.
For three or four years, before the son died, he took the general management of his father’s tenements in New York City. He deposited the moneys collected from tenants from time to time in bank to the credit of his father. After the son’s death, John Van Benschoteu was employed to do this work, and he continued to act as agent until Mrs. Claffey discharged him. Mr. Van Benschoten appeared as a witness called by the respondent. He testified that about the 1st day of February, 1890, he called at Mr. Ledwith’s to arrange the terms of his employment, and first saw Mr. Ledwith’s daughters, the father being outside of the house. The daughters called their father, and when he came in they asked what percentage upon the collections the witness would charge, and he replied to Mr. Ledwith that the charge would be five per cent., and asked if that would be satisfactory. The daughters replied in the affirmative, but the father, after waiting for a time, which seemed to the witness long, replied “too much,” repeating several times, and then
The Rev. Charles Mull, a priest, testifies that he saw Mr. Led-with ten or twelve times between the latter part of the year 1889 and May, 1890, and that he thought that Mr. Ledwith was then in his second childhood; that he was not irrational, but, as a child, did childish acts without fully understanding, and yet, at the same time, had power of reason; that he would answer some questions correctly, especially those which called upon his memory of long-past events, but would have difficulty with questions concerning present matters, understanding about as a child would. Melissa Bass relates the putting of the teakettle on the mantel,
The respondent testifies that Mr. Ledwith ceased to manage his New York property in 1886 or 1887, and that at that time his son took charge of it, and that thereafter Mr. Ledwith did not attend to it; that in February, 1890, she visited him, and saw him, without apparent purpose, tearing up some almanacs and a colored picture; that she did not then meet and converse with him, because his daughters would not permit her to do so; that she did not see him again until the fall of 1890. Dr. Henry C. Neer, who was the physician in attendance upon Julia Led-with in 1890, testifies that prior to the execution of the will he had made about forty visits to his patient, and that during them he. frequently saw Mr. Ledwith; that on the 16th of May, the day after the will was executed, at the instance of Mr. Ledwith’s daughters, he specially conversed with the old man with a view to ascertain his competency to make a will; that he talked with Mr. Ledwith and was satisfied that he was competent, and thereupon, at the suggestion of the daughters, made an entry in his memorandum-book, which is this: “May 16th, 1890..' Am requested to make memorandum that James Ledwith made his will yesterday and his mind is good and he is competent to transact any business; ” that he cannot recall the entire conversation with Mr. Ledwith at the time stated, but does remember that the old man asked him if he lived where he formerly did, to which the doctor replied that he did — at Park Ridge — and Mr.
It will not be necessary to follow with particularity the testimony as to Mr. Ledwith’s mental condition after the will was made. It will suffice to say of it that the witnesses decidedly vary in their impressions of his condition and in their narration of incidents illustrative of his rational and irrational conduct until the time of Julia’s death in 1892, after which time the majority of them assert that his mental condition would not admit of his transacting business.
It is apparent, I think, from the references I have made to the testimony, that if credit be given to all the witnesses, Mr. Ledwith, during the year 1890, and possibly earlier, was at times incompetent to transact business, and at other times had sufficient possession of his mental faculties to enable him to intelligently comprehend all that was needful in making a will. The majority of the witnesses who came in frequent contact with him express the opinion that in the period when the will was made he lacked capacity to transact business, but they fail to satisfy me by clear detail of circumstances of the correctness of their conclusion. There are many little indefinable actions in one who is incompetent that are difficult for witnesses to explain or communicate distinctly in their testimony. For this reason the opinions of those who are constantly in company with the subject of the inquiry are permitted to be given in evidence, but the weight of an opinion must depend upon the facts which the witness narrates to sustain it, his opportunities of observation and his intelligence and freedom from bias. Waddington v. Buzby, 18 Stew. Eq. 173, 174. As has been seen in the incident related by John Christopher, concerning Mr. Ledwith’s conduct at the express office, the fact rather tends to overthrow than to support his opinion.
The greater number of opinions of witnesses against the com
In this situation it becomes manifest that the greatest attention must be directed to the proofs of Mr. Ledwith’s condition at the very times when instructions were given for the preparation of the will and the instrument was executed.
The subscribing witnesses to the will are William H. Kelly, a lawyer of New York City, whom, I infer, from the fact that he is called “Judge” and “ex-Judge,” at one time held a judicial position, and John J. Murray, also of New York, a nephew of Mr. Ledwith’s deceased wife.
The proofs show that in January, 1890, shortly after the death of the younger James Ledwith, at the instance of Annie Claffey, who wrote to Mr. Murray that her father wished to make a will, Murray called upon Mr. Kelly and told him what
A second visit he made alone, some six weeks or two months after the first. During the interval between the first and second visits, Mrs. Claffey called at his office in New York and said that she was in New York shopping, and that her father had asked her to call upon him; that her father was a little annoyed by the delay and would like to have the will completed. He says that he has no recollection of Mrs. Claffey speaking of the provisions of the will; that at any rate he would not have taken directions from her. He says that at the second visit he again met the father and the two daughters, and read to Mr. Ledwith that which he had-prepared, and discussed it with him, and that modifications were suggested by Mr. Ledwith. He says that the daughters took part in the conversations, dwelling upon the desired provision as to their occupancy of the farm, and that the father finally said that he thought it best to let them have the farm as long as either of them cared, and then to have it sold. The witness adds: “He didn’t seem to want to bind them to continue all their lives on the farm, and yet he thought it was a good place for them to live.” There was also, he says, discussion as to the propriety of making the $1,000 for his son’s children payable in installments, and some figuring in respect to that. Outside the matter of the will the witness says that he talked with the old man as to past events, adding “ I found him at that time to be quite entertaining.” This interview, like the former, was two or three hours long. The witness took notes of his instructions at this visit, but has not been able to find them. He went back to New York and redrafted the will, and on the 15th of May, 1890, with Murray, went to Mr. Ledwith again. In addition to Mr. Ledwith and his daughters, Thomas Ledwith, the brother of the testator, was preseut. Mr. Kelly read the will carefully in the presence of those there, and then handed it to Mr. Ledwith, who asked for pen and ink and a sheet of paper to practice, wrote his name two or three times upon the sheet of paper and then signed the will. The will was then duly declared and duly signed by the witnesses, Kelly
The subscribing witness Murray states that at both his visits he found Mr. Ledwith to be in possession of his mental faculties. He relates conversations to show the correctness of his conclusion. He corroborates Mr. Kelly as to the circumstances surrounding the execution of the will, and among them the private conversation Mr. Kelly had with Mr. Ledwith outside the house. His account is this :
“The Judge [meaning Kelly] says, ‘Now, Mr. Ledwith, are you still wishing to give that §1,000 to the child?’ He says, ‘Yes.’ I think the Judge proceeded with him a little while and he asked him a second and a third time. He says, ‘ I will make no change. It will be §1,000 ’ * * 'x‘ I made one remark, ‘Why not give him the son’s share?’ There was no reply to it. Mi-. Kelly said, ‘Do you think that is enough, Mr. Ledwith?’ I think he said, ‘ That is enough,’ and I think he also said about his money, he earned it hard. He made that remark regarding the §1,000 — he earned the money hard and didn’t want it to be spent foolishly; something of that kind.”
Thomas Ledwith also testifies that he saw his brother sign the will. Mrs. Claffey, the only other surviving person present, was not sworn as a witness.
If these witnesses tell the whole truth, and I do not perceive sufficient ground for disbelieving them, though I am constrained to think that Mr. Kelly’s testimony may in some respects be exaggerated, there can be no doubt that when the testator gave instructions for the will, and when he executed it, he possessed ample capacity to make it. He comprehended his property, the natural objects of his bounty, the character of the business in which he was engaged, and the disposition he resolved to make of his property. His capacity, I think, was equal to the task he was called upon to perform. Waddington v. Buzby, supra.
Let us look at the other proofs submitted in this connection.
John Van Benschoten says that about the 3d or 4th of February, 1890, having a letter written by Mrs. Claffey to Mrs. Keenan which introduced him as the new property agent, he went with the subscribing witness Murray to see Mrs. Keenan and that as he and Murray were coming away, Murray said to him, ££I want to stop and see Mr. Kelly, or Judge Kelly, in regard to writing Mr. Ledwith’s will. We want to get the old gentleman to make his will. We don’t want to let the money go out of the family.” Dr. Neer testifies that a few days before the will was executed, Mr. Ledwith’s daughters, who were together at the time, asked him if he ever wrote wills, and, upon his replying in the affirmative, asked him if he would write Mr. Ledwith’s will, to which he replied to Mrs. Claffey, who was then living at her father’s, separate from her husband, that because of complications which might arise out of her relations with her husband, he advised them to employ a lawyer. The doctor thinks that Mr. Ledwith was not present when he was asked to write the will. He said that the daughters did not state what the will was to contain. He says he was then professionally visiting Julia Ledwith. Melissa Bass says that about a week after James Ledwith, Jr., died, his sisters told her that their brother’s wife would never get a cent of their money because her mother had spent her father’s money. The husband of this witness testifies that he overheard the same conversation.
It is apparent from this testimony that Mr. Ledwith’s daugh
Immediately after the son’s death the feeling against his wife found vent. Mrs. Keenan was instructed not to give her any of the rents. Whether the idea of this instruction originated with Mr. Ledwith or with Mrs. Claffey does not appear. Mrs. Claffey, at least, aided its communication to Mrs. Keenan. It was a week after the son’s death that the daughters told Melissa Bass, first., that they did not think that the father would give the respondent any of his money, and then, that he would not do so. It was later that Murray, acting under a letter of instruction from Mrs. Claffey, declared to Van Benschoten, “ ‘ We’ want to get the old gentleman to make a will; ‘we’ don’t want the money to go out of the family;” and it was yet later that Maria Gillespie, through a partially-open door, heard Mrs. Claffey telling her father that the respondent did not need anything; that she had enough, and, if not, to let her work for it, and that the daughters declared to her they would have their father make a will.
It does not appear that the daughters were inimical to the respondent’s child. They thought it was a delicate child and would not live. They recognized its claim upon their father’s bounty, for Julia told Peter Christopher that they would take care of it. The great burden of their apprehension seems to have been that some of the father’s money might go to the Quinn family and there be extravagantly expended.
The testimony shows too much intelligence in Mr. Ledwith when the will was made to admit of much argument to the effect that the document was imposed upon him and executed without his appreciating that it was his will. In holding that there was such an imposition, the honesty and truthfulness of the subscrib
There exist, however, indicia of undue influence, which the contestants claim should be regarded as sufficiently strong to induce the rejection of the instrument.
This is a summary of them : An intent upon the part of the daughters to procure just such a will as that made; the authority which their daily presence and ministrations to the comfort of the old man gave them over him; the mental enfeeblement of the old man, which made him susceptible to every influence his daughters, who had his confidence, might exert; their exclusion of the respondent from an interview with the old man after the son’s death; their declared determination to have their father make a will; their instrumentality in procuring a. scrivener for the will; the urgency of Mrs. Claffey’s visit to New York to hurry the scrivener in the performance of his work; the appeal to Dr. Neer, while the scrivener delayed, to prepare the will; the presence of the daughters at, and participation in, every stage of the preparation and execution of the instrument; the fact that Mrs. Claffey told her father that the respondent did not need assistance and should work; the outcome — an instrument which makes precisely the provision the daughters said it should make, which gratified their enmity, and gave them, substantially, the entire estate, and the failure of Mrs. Claffey to submit herself to examination as a witness and explain her participation in the production of the will and deny the exertion of undue influence upon her father.
I eannot avoid the conclusion that these circumstances threw the burden upon Mrs. Claffey to show that undue influence was not exerted. Dale v. Dale, 11 Stew. Eq. 274, 276; Waddington
I think that under the proofs, left in this condition without explanation from Mrs. Claffey, the orphans court properly decided against the will on the ground of undue influence.
The decree questions the rightfulness of the allowances made by the orphans court. I think that the case was one in which allowances could lawfully be made. In amount they appear to
The decree will be affirmed.