21 N.J. Eq. 561 | N.J. | 1870
The opinion of the court was delivered by
The several appeals in this case submit to review the right of the respondent to have probate of a paper bearing •date August 23d, 1865, purporting to have been executed by Dr. Henry Vanderveer, late of the county of Somerset -as his last will and testament.
The rights of the next of kin and the lioir-at-law, upon the death of the ancestor intestate, to such worldly estate as he may leave, is securely guarded by our laws, and can bo -divested only by a testament executed in strict- conformity
The will in this case has been assailed upon three principal grounds. 1. Want of testamentary capacity. 2. Undue influence on the part of Dr. Cornell. 3. Imposition of the instrument upon the testator without a full lmowledgeon his part of its contents.
The evidence presents the testator, both before and after-the execution of this paper, as a man of vigorous intellect,, a gentleman of the old school, of much culture and refinement, and exempt in a rare degree from physical and men■tal infirmity, at the advanced age of more than four score-years; and although at the date of the disputed will his eyesight and hearing were much affected and his general health impaired, there is no sufficient evidence which denies to the-testator the possession of testamentary capacity. There is, also, an absence of evidence to show that Dr. Cornell, however much he niay have urged his good offices on the testator, or whatever may have been his desire to secure for himself or his son a place in his testamentary disposition,, had acquired such influence as would have enabled him unduly to induce the testator to execute, with full knowledge-of its contents, any paper which did not express his own purposes with regard to his estate.
The case of the appellants must stand, if at all, upon their third ground of objection.
Is the evidence of such a character that it satisfies the-mind and judgment of the court, that the will of August 23d, 1865, was executed by the testator with full knowledge-on his part of its contents ? While the intellect of the testator was somewhat clouded by a temporary illness, it is. clearly shown that his hearing was seriously affected, and his eye-sight almost gone, at the time his signature to the-instrument in question was procured. The testamentary
The evidence then strictly is, that Wight says he read the will to testator in presence of Dr. Cornell, and Dr. Cornell says it was read to him; neither asserting anywhere that the testator admitted at the time, or afterwards, that he understood its contents. Neither Wight nor Dr. Cornell pretends that the testator asked the legal effect of any provision made, or expressed the least desire to have any passage read a second time, or suggested the slightest change in the disposition made. Giving full credit to this evidence, does it fully discharge the proponent from the burden which the law imposes upon him ?
A simple examination of this will shows the difficulty the testator in his then condition, would have had in comprehending its provisions upon a single reading. There is a volume of other evidence in the cause which must have an important bearing on this issue. William Vanarsdale testifies that a day or two after this will was executed, the
In this disputation we must keep in perpetual view that the will in question crushes the cherished purposes of the testator’s life, intentions declared in his own writing through years, and attested by various witnesses in this cause, but by none more emphatically than by Wight, on the very day he prepared the will. Ho states that the testator, in giving his- instructions for the disposal of his estate, said: “I wish to leave it in the Vanderveer name; I wish it called Vanderstadt, and I wish a trustee to hold it forever if he could.” Hold it forever, how? Manifestly in the Vanderveer name. Even Dr. Cornell, himself, says, that the testator, shortly before this will was executed, told him, that he was very anxious to transmit his property to “three successive generations.” What three successive generations could this mean? generations of Cornells, or generations of Vanderveers ? Nothing but utter imbecility of intellect could have extinguished his pride in the Vanderveer name. This testimony should close the controversy as to the cherished purposes of the testator to perpetuate this name by a testamentary disposition, up to, and at the time the will of August 23d was being drawn; did not Dr. Cornell attempt to prove that Dr. Vanderveer subsequently declared another purpose in a memorandum in his own hand, from which the Conover will was drawn, December 7th, 1866, and ask the court to infer from this that the testator’s mind had undergone a change since he drafted his earlier wills ?
With these known purposes existing in the testator’s mind for years before, and on the very day of its execution, a paper is propounded as his last will and testament, which, if it does not wholly defeat, effectuates them in a .very slight (logreo. No benefit is conferred upon any Vanderveer, save Lawrence. The property is wholly put into Dr. Cornell’s possession, with no words therein limiting his scheme of expenditure in the slightest degree, and so arranged that the proud name of Vanderveer should forever depart from Vanderstadt, after the taste of Dr. Cornell had adorned and beautified it at unlimited expense, unless the strange contingency should happen that Lawrence, a bachelor of thirty-five and still unmarried, should have lawful male issue which shall survive at his own death. How strangely the purposes pronounced in this instrument differ from those which, Wight says, came from the lips of that venerable man on the 23d of August, 1865.
In determining whether this will is the exponent of Dr. Vanderveer’s intentions, the acts and declarations of Dr. Cornell and Wight cannot he disregarded. I agree with the learned Chancellor that the declaration of Dr. Cornell that he did not wish to bo executor or trustee, is justly subject to criticism. He not only, so far as appears, failed to make the slightest attempt during the three years that the
Wight has thrown a suspicioxx around his testimony by declaring his unwillingness to serve as a witness to the will without taking any subsequent measures to remove himself from a position so disagreeable; and this suspicion is not shaken by his statement of the successful manner in which he had on previous occasions played the character of witxxess to a will. The interview betweexx the testator and Wight while the will was being drawn, as given by Wight himself, is persuasive evidence to show that the true iixteixtioxxs of Dr.
There can be no absolute presumption that a man of testamentary capacity would not exectite a will without understanding its contents, for such assumption wholly dispenses with the rule of law that it must appear as a fact that the contents were in some way made known to him.
To the argument so strongly pressed, that Dr. Cornell would not have attempted an imposition which was subject to so many chances of detection by Dr. Vanderveer, it is sufficient to say, that the burden of proof being on the proponent to establish the fact that the contents and purport of the will were in some way made known to the testator when he gave his name to it, the evidence loaves that quos
It is proper to say, that it is not intended to intimate any opinion as to the admissibility of the testator’s declarations, before and after the execution of the will; they have been used in the argument on both sides without objection, each party claiming a benefit from. them. The same remark will Apply to substantive evidence, offered to prove the statements of Dr. Cornell before he came on the stand as a witness, and to declarations made by Wight, to which his Attention was not called on his cross-examination.
The views here taken dispose of the appeal of Lawrence Vanderveer.
My opinion therefore is, that the decree of the Ordinary should be reversed, and probate of the entire will refused. The decree below having been in favor of the proponent, costs, expenses, and reasonable counsel fees, are to be allowed out of the estate on both sides, in this court, and in the court below, to be settled by the Ordinary.
The paper offered for probate as the will of Dr. Henry Vanderveer, deceased, is dated August 23d, 1865, and purports to appoint the Beverend Frederick F. Cornell as executor, and then bequeaths and devises to such executor all the real and personal estate of the testator, in trust, to take possession and hold the same, and receive the income thereof, \ with power to sell and convey any of the real estate, except that in Bedminster township, Somerset county, and to invest and re-invest the personal estate as often as shall be necessary; also, to care for the real estate in Bedminster township, to be known as Vanderstadt, and to improve the same as the said trustee shall see fit, devoting any part of the income of the whole estate, necessary for that purpose, and to employ such persons, at such expense, as he may see fit; .and also, in further trust, to pay over to Lawrence Vanderveer, a son of Dr. Henry Vanderveer, who (Dr. Vanderveer)
The paper was executed at the residence of the deceased. Lawrence was not present; Dr. Cornell was. Besides Dr. Cornell, two others only were present; one, Edwin M. Wight, a lawyer of New York city then living at Somerville, and who was then the partner of Frederick F. Cornell, jun., in the practice of law in New York, and also with him engaged
Dr. Vanderveer was then eighty eight or nine years of age, with hearing impaired and eye-sight so affected that he could not see to read. This inability to read was owing to a temporary trouble with his eyes, which existed for a few weeks, both before .and after the paper was signed. . Ordinarily he was in remarkable health, and had good eye-sight for one so old, but at this time it is clear that he could not see to read. It is also clear that on the night previous he was taken with a sudden illness which severely affected him, and from which he was suf
It is unnecessary to refer to any more of tho peculiar cir - oumstances at the time of the execution of this paper. There is already sufficient stated to throw upon the proponent the burthen of showing that tho testator was in some way made acquainted with the contents of tho paper. The fact of tho old age of the deceased, his feebleness, his defective hearing, his inability to read, and tho presence about him of an important beneficiary, and also the partner in law business, and otherwise, of tho contingent residuary legatee and devisee, brought there at the immediate request of his father, together with tho opportunity for fraud, and the suspicious circumstances stated, all fairly and legally require that the proponent should show that Dr. Vanderveor knew the contents of tho paper. 1 Jarman 45, 49; 2 Green’s Ch. 549; 8 Wash. C. C. 580; 2 McCarter 310. This knowledge may be drawn from tho reading of tho will under such circumstances as to reasonably create the belief that the testator heard it, or from its having been drawn according to his instructions, or from an acknowledgment that it had been read to him, or from other circumstances, 'which induce the belief that he must Lave known the contents; the amount and kind of proof depending very much upon the circumstances of each case, and being necessarily relative, according to the degree of capacity, and suspicion of fraud, or doubt of tho testator’s knowledge of the contents.
The important issue then before us, is of fact exclusively, whether Dr. Vandervoer knew the contents of the paper he signed. It was not very unlike other drafts be had made, so far as Lawrence Vandervoer was concerned,
The proponent from the testimony of Wight, and liis own, seeks to prove that this paper was drawn from certain instructions, in substance given by Dr. Vanderveer, and that after it was drawn it was read to him; and here is the vital part of the case. I shall not refer in particular to the evidence, or its weight in support of that position, nor to that that may bear against it. The facts have been elaborately and most ably argued, and the effect they produce upon the mind need only be stated.
The result as to myself is, that I am not satisfied that Dr. Vanderveer knew the contents of the paper he signed. The evidence has failed to convince me that he did. This conclusion' is undoubted^ in conflict with some of the direct evidence, but in examining that, with all the legitimate facts and circumstances of the case, the rules and probabilities of human conduct should not be disregarded. It is not strange that in admitting this paper to probate, the Ordinary should have done it reluctantly, and with much misgiving, as his opinion shows. The question of fact is undoubtedly embarrassing, but my own judgment fails to be satisfied in favor of the proponent, and although the right of disposition by will should be carefully protected by the court, yet in this case, the circumstances have imposed a burthen upon the proponent from which the evidence has not relieved him, and enabled me to say that the paper propounded is the will of the deceased. To this extent only, need this opinion go. Beyond that, a discussion- of the evidence is to me undesirable.
The appeal of Lawrence Vanderveer was brought by reason of a suggestion in the opinion of the Ordinary,
The decree of the Prerogative Court should be reversed,
For reversal — Belle, Clement, Dalkimple, Kennedy, •Ogden, Vatl, Van Sycskel, Woodthill. 8.
For affirmance — -Beasley, C. J., Olden, Scudder. 3.