85 N.J. Eq. 125 | N.J. Super. Ct. App. Div. | 1915
This appeal is from a decree of the orphans court of Hunter-don county, denying probate of the last will and testament of Nicholas W. Craft, deceased. The testator died July 25th, 1913, aged eighty-five years. More' than two years before, on May 29th, 1911, he executed his will, by which he gave his estate of less than $10,000 to James T. Hoffman, a nephew by marriage, except $25, which he gave to one James W. Farley. The testator’s nearest relatives were a niece—Mrs. Boíles, the caveatrix— and two nephews, one of whom lived in the State of New York and the other in the west. Probate was contested on the grounds of incompetence and undue influence. The record is not favored with an opinion of the judge who heard the cause, but it appears by the decree that the court’s judgment was rested upon the former and that the latter ground was not considered necessary to be passed upon. The transcript of the testimony is very imperfect, due, as counsel says, to the stenographer, who was not proficient in this class of work. It is apparent that in many instances the witnesses are not correctly reported and that questions and answers were omitted, and therefore to the task of re
I premise these remarks with the statement that the evidence discloses no exertion of undue influence over the testator, and that if the relations of the chief beneficiary to him were of such a character as in the absence of explanation, to raise a presumption of such influence, then the burden of overcoming it has been successfully met. Both the beneficiary and his wife, with whom the testator lived, emphatically deny ever having knowledge of the will, or that they in conversation with him ever spoke of one, and the history of the case bears out their denials. Sparks’ Case, 63 N. J. Eq. 242.
And I may at this juncture pause to add that to me the will seems a just and natural one. For eight years and more the testator made his home with the beneficiary. He then went to live with the latter’s mother, where he remained for three years until her death, returning at his own earnest solicitation to the beneficiary a month before the will was executed, where, despite importunity of others to live elsewhere, he said he wanted to spend his remaining days, and where he stayed until his death. He spoke of this home as the home of homes and that James (the beneficiary) had been a boy to him. There he was well cared for and happy, and undoubtedly appreciated the kindly treatment and ministrations of the beneficiary and of his family. Then why should not he, who afforded comfort and solace to this old gentleman in his declining years, be the most natural object of his solicitude and bounty? His nephews were probably as strangers to him. It does not appear that they ever gave him any attention. His niece lived in a distant city, calling occasionally to transact some small business affairs, but more than this does not appear, and for these services he expected to account. Such kindly offices as the beneficiary and his family rendered the deceased have repeatedly been held to be legitimate influences and not undue.
We turn, then, to an examination of the testimony upon which the orphans court pronounced the testator incompetent to make
The other evidence in the case bearing upon the conduct and mental condition of the testator on the day of the execution of the will is not in serious conflict, but, upon its significance, and the weight to be given to it, much depends in solving the issue. [Here follows a discussion of the evidence.]
In controversies of this character, the point of time to be considered is that at which the testator executed the writing in dispute. The legal presumption is that he then was sane, and I do not find in the record, bearing upon that occasion, evidence of a character to disturb this presumption, nor to lead me to conclude other than that the testator at that time had intellect and capacity sufficient to comprehend the nature of the transaction he was engaged in, and all of the essential concomitants. His mind and memory were equal to the test as defined and illustrated by Mr. Justice Washington, in Stevens v. Van Cleve, 4 Wash. C. C. 267, and adopted as the. settled construction of “testamentary capacity” in this state, as follows:
“He (the testator) must, in the language of the law, be possessed of a sound and disposing mind and memory. He must have memory. A man in whom this faculty is totally extinguished, cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able, atall times, to recollect the names, the persons, or the families, of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigor of intellect to make and to digest all the
Much of the record deals with the evidence of the testator’s physicians, neighbors and friends, who testify to facts evincing the quality of his mind and memory before and after the making of the will. I will only refer to that which relates to the latter period. His three physicians are united in their opinion that he had mental capacity. Their professional treatment; of him was direct; they prescribed for and advised him personally, and he followed their instructions. The physician in regular attendance stated that he was a great man to. have him in his room and talk to; that he was always glad to see him and knew him; that the testator was a great Mason and often asked about a Mr. Moore and other members of the fraternity whom he knew years ago. .His neighbors testified that he conversed with them about being in New York; about mutual acquaintances, farming, gathering the crops, sowing, weather conditions,' manner of farming, and things of interest in the neighborhood. Of one, who called once or twice a week, he would always inquire as to the condition of her son’s health, who was ill with rheumatism. With another, he tried to negotiate’ the sale of the Wyckoff Hoffman $1,500 second mortgage, and with him he had frequent conversation. To this witness he told that his mortgage was to have been a first mortgage, but that he had been duped. He also tried to sell it to the beneficiary. A lady visitor at the beneficiary’s house testified that she read to the testator, and that he would make comments; that she talked to him and he an
As against this array, the caveator produced a number of witnesses whose evidence I will analyze in detail. [Here follows a recital of their evidence.]
The divergent views of the opinion-witnesses as to the mental capacity of thé testator is, in some instances, doubilessly due to the fluctuations in physical health and the resultant temporary effect upon his mind at the times they observed him, and of which they speak; and also to their failure to distinguish between his’condition before and after the stroke of paralysis he suffered in January of 1912, after which his mind was not as keen as before. At most, evidence of this character is of very little help, but if the question pressing were to be solved by it alone, I would unhesitatingly affirm a decided preponderance in favor of sanity. I have given it the consideration to which it is entitled.
This extended and detailed review of the testimony leads to the conclusion that the caveatrix has not sustained the burden of proof cast upon her, and to the result that the testator was competent to make a will. A persuasive element in arriving at this decision, uppermost in my'mind, is the conviction that one who was able to respond both physically and mentally to all other callings in life ordinarily expected of one so greatly advanced in years as the testator was, could not, in reason, be
The decree of the orphans court will be reversed and the will admitted to probate. " Costs and counsel fee will be ordered paid out of the estate.