82 N.J. Eq. 591 | N.J. Super. Ct. App. Div. | 1913
Tbe will of Annie Eatley, deceased, was admitted to probate by the surrogate of Middlesex county, and letters testamentary wore granted by him. On appeal to the orphans court the order of the surrogate was reversed a.nd probate denied because, as recited in the order (no opinion was tiled), the paper-writing offered for probate was not duly executed; that the deceased was hot- competent to execute the same, and that it was not the last will and testament of the deceased. From the reversing order this appeal is taken. The undisputed facts in the case are these: Annie Eatley lived in Metuchen, New Jersejq until the death of her husband in December, 1911. She was then in delicate health, suffering from diabetes, which illness had reduced her weight from two hundred and fifty pounds to one hundred and twenty-one pounds. From that time on, until her death, she made her home with her brother and sister, Albert A. Miller and Marne Stephens, at Wilkesbarre, Pennsylvania. Although ill in body, she was apparently sound in mind until shortly before her death, which occurred on the morning of May 8th, 1913. She was in her normal condition of health until about eleven o’clock in the morning of May 7th, when she took to her bed. The attending physician was then called; her brothers and sisters were hastily summoned, and a lawyer was sent for, who drew her will, in which the sister Marne Stephens was made the sole beneficiary and executrix. The deceased left surviving her a daughter, Eva Pittack, her father, two sisters and five brothers. The estate consisted of $100 in cash and a house and lot at Metuchen.
Two other and disinterested witnesses were called, who gave testimony as to the condition of the mind of the testatrix on the dajr she made her will. Mrs. Butz says she called upon her between eleven and twelve o’clock in' the forenoon. This was before the will was drawn. She held intelligent conversation with the testatrix. Nellie Hand, a nurse, called about four forty-five in the afternoon, after the will was executed, and stayed some time with the deceased. She took her respiration and pulse; the latter she found very strong. Her testimony indicates that the deceased at that time was mentally alert.
The evidence satisfies me that the paper-writing offered for probate was executed as wills are required to be; that the testatrix was competent to make the will; that she had full knowledge of its contents; that it was fairly read and explained to her, and that she executed it understandingly and with an appreciation of its legal effect.
It was pointed out in the argument, as of significance, that the attorney inserted the name of the beneficiary as the execu
Mrs. Eatley was about fifty years of age, widowed, alone and fatally ill, when she sought a home with her brother and. the sister, the beneficiary, who lived together as one household. In this she became and was treated as a Welcome member. Her physical condition naturally invited the kindly ministrations of her sister, who sometimes nursed her, helped her to dress and with her toilet; accompanied her while visiting and wrote her letters. Her friends called upon her and she mingled with them at her pleasure. She was on intimate terms- and visited the families of her brothers and sister, who were at enmity with the beneficiary. Her’s was a free agency to go and come as fancy led. These circumstances do not establish a confidential relation such as is illustrated in the opinions in Sparks Case, 63 N. J. Eq. (18 Dick.) 242, and In re Cooper’s Will, 75 N. J. Eq. (5 Buch.) 177, which, with “other slight circumstances,” casts upon the proponent the burden of showing that the will was untrammeled by undue influence. This is not seriously controverted, but it is urged that because of the dependency in those of her affairs to which I have just alluded, it ought to be assumed that when the deceased was nearing dissolution, the beneficiary took advantage of her helplessness to wring from her this testamentary disposition. This is entirely too visionary for thoughtful submission by counsel or consideration by the court. Nothing in the intercourse between the beneficiary and the deceased offers the slightest ground for such speculation and conjecture. Furthermore, this fact stands boldly in refutation: When it was surmised that death was approaching, the family differences were laid aside and the brothers were sent for, and in the presence of one of them, who was especially antagonistic, the will was executed. Now, is it likely, is it reasonable that if the beneficiary had importuned and cajoled the deceased for self-gain, as we are asked to believe she did, she would have summoned them to perhaps bear witness to her infamy? Frauds of this character are usually conducted hiddenly, and it is incredible that one who had had abundant opportunity to contrive in secret, should so audaciously flirt with probable exposure or as brazenly challenge detection.
It is claimed that the beneficiary suppressed the will, and it is argued that this supplies the “'other slight circumstance” (presupposing that a confidential relation has been established) to cast upon the proponent the obligation of overcoming the presumption of undue influence. The record discloses nothing but absolutely normal conduct on the part of the beneficiary until after the death of the testatrix. Then Mrs. Stephens failed to telegraph to the daughter informing her of her mother’s death, until the day following, and later on, in a letter to the daughter, did not mention the will, and the will itself was not offered for probate until nearly two months after it was made.
Mr. McLaughlin, the attorne)', took possession of the will after it was executed. It was a matter of common, knowledge in the Miller family that the will had been made. There was no effort made to conceal it from them, and it is a fair presumption that they knew its contents. John P. Miller, the unfriendly brother, did, and it is not at all unlikely that he discussed it with the other members of the family. The explanation of the beneficiary on cross-examination, as fo why she did not promptly communicate the death to the daughter, and why she withheld information as to the execution of the will, is not as frank and satisfactory as the circumstances permitted and as she could have given. She pleaded distress and commotion in the household as a reason for not immediately notifying the daughter that her mother had passed away, and says in response to repeated prodding of the eross-examiner, that “'she did not know” why she did not inform her of the will. The witness was apparently laboring under great excitement occasioned by a vigorous! and
But if I should accept, as it is argued, that the circumstances, unfavorable to the beneficiary, taken in the concrete, make a case which raises the presumption of undue influence, it will not affect the result. The beneficiary, and her brother, with whom the deceased lived, and who were hex intimate associates, both emphatically deny that they influenced the testatxix. The denial of the beneficiary, standing alone, if otherwise credible, and not challenged by other facts, is sufficient to overcome the legal presumption. Sparks Case, supra. We need, however, not stand on this narrow margin. Taking into consideration all of the circumstances of the case surrounding the making of the will, they utterly rout the presumption and convince me that the will was initiated by the deceased and expresses her testamentary design. The only acts of the beneficiary which might be regarded as having influenced the testatrix were those born of kindness and love and affectionate devotion, which at no time and nowhere have been denominated in the law as undue, nor has their recognition in testamentary dispositions ever been held to be evidence of undue influence or even a suspicious circumstance in the absence of positive proof. Howell v. Taylor, 50 N. J. Eq. (5 Dick.) 428; Trumbull v. Gibbons, 22 N. J. Law (2 Zab.) 117; In re Gleespin, 26 N. J. Eq. (11 C. E. Gr.) 523. “The burden of establishing the influence which is ‘undue’ rests on those who assert it. Mere possession of influence and opportunity, and motive to exert it, will not suffice. It must appear either directly or by justifiable inference from facts proved that
So much of the decree as reverses the order of the surrogate granting probate and letters testamentary will be reversed.
.Appeal was also taken from so much of the decree below as granted .counsel fee and costs to the contestant. In view of the court’s judgment that the will Avas invalid, it followed as a necessary sequence that it also found that the contestant had reasonable cause for contest and properly made the allowance. 3 Comp. Stat. p. 3885 § 197. This feature of the deoree is affirmed.