63 N.J. Eq. 224 | N.J. Super. Ct. App. Div. | 1901
Steen Edwards died April 24th, 1900. On March 20th preceding his death the will in question was executed. By it he left his property to his eight children, all sons. Five of them filed a caveat in the surrogate’s office and now prosecute this appeal.
At the date of the making of the will the testator vas a very old man—ninety years of age. For a period preceding his death, reaching back several months, he had exhibited a progressive mental decline. The death of his wife on the 26th of the preceding December had accelerated this deterioration. He was by habit and affection strongly attached to her, and her death worried and perplexed him, and increased his confusion of thought. The evidence is plenary that events and words made but a transient impression upon his brain. He failed to recognize his own children. He would ask the same question over and over again, after repeated answers. He thought his wife was still living. The testimony of his housekeeper and others not interested in the result of this litigation, shows beyond question that the general mental condition of the testator at the time he signed this will was one of great confusion of ideas, of inability to think consecutively and of forgetfulness of his surroundings. Even Theodore E. admits that after his wife’s death the testator did not know where he was or what had happened. It is true that he filled up and signed checks as late as February 24th, but this seems to have been merely mechanical, for his son Yaldemar says, and I have no doubt truly, that he dictated the written portions of those cheeks. Yaldemar’s testimony tallies with that of the collector for the gas company, who tells of the unsuccessful attempts of the testator, when unaided, to prepare a check for the amount of his gas bill. His family physician says that he was not capable of testamentary disposition after the death of his wife. His conversation with him was confined, it is true, to professional inquiries concerning his symptoms, but the testator’s answers to those inquiries were calculated to impress the physician with a low opinión of the testator’s mental condition. His testimony is that he was afflicted with the confusion and slowness and inability of thought which accompanies very old age, coupled with physical infirmities.
The two witnesses mainly relied upon by the respondent to show that the testator had testamentary capacity are Dr. Ware, who did not attend him as physician, but talked to him as an
Dr. Ware says that the testator had some of the symptoms of senile dementia. He, 'however, details a conversation which he had with the testator, after the death of his wife, in which conversation he says that the testator was entirely rational. The conversation undoubtedly shows that the testator knew that his wife was dead; that he was depressed by her death, and that on account of her death he thought of making another will. The. subjects discussed were, however, within very narrow limits, but upon these subjects he talked sensibly.
Mr. Ware, who drew the will, states that the testator described his property and gave him the names of his sons, and instructed him as to what he wished the will to contain. He is of the opinion that the testator was entirely competent to make a will. The impression of Mr. Ware as to the testator's capacity is quite different from that of Mr. Reeves, who had been for a long period the counsel for Mr. Edwards. Mr. Reeves says that Mr. Edwards was demented and incapable of any business transaction whatever. Both these gentlemen are proctors in the case, and while highly honorable practitioners, their testimony must be discounted by the unconscious influence of a desire for victory, which naturally shades the opinions of any witness who is at the same time of counsel in the cause.
Mr. Ware says that Mr. Edwards went into an elaborate description of the property he owned. There is, however, no description of his property contained in the will, nor, as the will was drawn, was such a description necessary. There is nothing to show that he named all the property that he owned, for it does not appear in the will, nor does Mr. Ware give the list of properties which he says the testator described, nor does he say that he knows that the list was correct. ‘The testator did, undoubtedly, name his sons, for they are all mentioned in the will, and Mr. Ware says that he knew only two of them.
Of his eight sons only Theodore E. and Adolph afterwards lived at home. They worked in the florist business which had been organized by the father. Until 1883 Theodore E. worked for his father, and -his father had recognized an indebtedness to
On October 15th, 1895, he made a codicil to this will, in which he substituted Adolph in place of Theodore E. and Odin, as executors. He changed the portions which he gave to his several sons. He gave to Leslie, whom he says had not received as much help from Mm as the others, two-ninths of Ms property, and to each of the other sons one-ninth. He made some change in the amount of property which he had directed his executors to sell. He finally directed that whatever might be due to Mm, by any
On June 9th, 1896, he made a memorandum of the amounts due from his sons. This memorandum was modified by another memorandum made on September 6th, 1897, and by still another made December 29th, 1897. On August 15th, 1899, he executed another codicil, drawn by Mr. Reeves, by which he gave Valdemar’s share to Valdemar’s wife. This change was made because Valdemar had creditors, and the codicil was executed, Mr. Reeves says, because it was understood that there would be no objection on the part of his sons to this disposition of the share of Valdemar, and not because he thought that the testator had then the capacity to make a will which would stand against an attack. With the exception of this codicil, the codicil of 1895 stood unchanged until the execution of the will in question.
On March 17th, 1900, three days before this will was signed, the testator signed another paper by which he directed that all unsettled accounts between himself and Theodore E. should, after testator’s decease, be referred to arbitrators to determine the amount owing to Theodore E. by testator. This paper provides also that the amount shall not be lessened by reason of the bar of the statute of limitations, which bar was expressly waived. This paper was drawn from instructions given to him by Theodore E. by Mr. Ware, who afterwards drew the will. It was signed by Mr. Edwards at his home and witnessed by the same housekeeper who witnessed the will. At this time there was none of the children at home other than Theodore E. Valdemar and wife, who had been staying with Mr. Edwards, had gone to Atlantic City to remain a few days. Three days after the execution of this paper, Theodore E. telephoned for Mr. Ware to come to testator’s house. Mr. Ware went to the house and there prepared the will which was executed in the presence of Theodore E. and the housekeeper, Valdemar and his wife being still absent. By direction of Theodore E., the execution of the will was concealed from Valdemar and the other children. Theodore E. admits that he told the housekeeper to be silent about it, and in reply
Then again, there is a feature in the will itself which, in my judgment, makes in the same direction. Mr. Ware says that, at the time of the execution of the will the testator expressed a desire to leave the children just as nearly equal as possible. As the will was drawn, all his property was to be divided equally, the portion of Theodore E. to be in addition to the amount owing by the testator to him, provision for the ascertainment of which, in the language of the will, was made in another paper. There was not a word said about the debts of the children. As already observed, in the codicil of October 15th, 1895, he provides that the debts of the children should be deducted from
I am convinced that the existence of these claims against his sons was not in his mind on March 20th, 1900. I think that while he had the power to recall the real estate around him, which was so familiar, he did not have the power to recall the terms of his previous codicil of 1895 nor the fact of the existence of the debts of his children. In my judgment this power was essential to a valid execution of the will.
In respect to Theodore Eds connection with the execution of this will, he denies that he urged or even first suggested that his father should make a will. His account is, that upon the occasion when the will was signed, his father said that he wanted to make a will and that witness asked him several questions about it, and then testator asked him if he would get somebody to make a will; that witness said that Mr. Ware would be a good one to get, and testator replied, “Well, you can get him.”
Theodore E. also says that he did not know what was in the will. If he means by this that he did not see the will and that he was not told by Mr. Ware what had been written in the will, I have no doubt his statement is true. Whether he had a previous knowledge of what was to be the contents of that will is another matter. He admits that he asked several questions about it of the testator before sending for Mr. Ware, but he does not