87 N.J. Eq. 638 | N.J. | 1917
The opinion of the court was delivered by
The question involved is one of probate under tbe statute, pure and simple, and not one either of construction or of reformation.
A will so executed, under these circumstances, is entitled to probate unless it be the result of fraud or of undue influence or (within certain limitations) of mistake. Fraud (and this involves bad faith on the part of its perpetrator) willfully deceives free agency; undue influence over-masters it; while mistake, whether self-induced or the result of the innocent error of another, misleads free agency, without bad faith or domination on the part of anyone.
Where a testator, in addition to complete testamentary mental capaeitj1, is in full enjoyment of average physical and educational faculties, it would seem that in the absence of fraud or of undue influence, a mistake, in order to defeat probate of his entire will, must in substance or effect really amount to one of identity of the instrument executed; as, for instance, where two sisters, in one case, or a husband and wife, in another, prepared their respective wills for simultaneous execution, and through pure error one executed the other’s, and vico versa. Anon. 14 Jur. 402; Re Hunt, L. R. 3 P. & D. 250; Nelson v. McDonald, 61 Hun (N. Y.) 406.
Short of this, however, or of something amounting, in effect, to the same thing, it is against sound public policy to permit a pure mistake to defeat the duly solemnized and completely competent testamentary act. It is more important that the probate of the wills of dead people be effectively shielded from the attacks of a multitude of fictitious mistakes than that it be purged of wills containing a few real ones. The latter a testator may, bj' due care, avoid in his lifetime. Against the former he would be helpless.
Most- frequently where a physical or educational disability of this character exists, contested will cases are founded upon fraud or upon undue influence.
In the present case, however, the learned trial judge of the orphans court of Hudson county before whom the issue was tried, and the learned vice-ordinary who heard it on appeal to the prerogative court, were both of the opinion that neither fraud nor undue influence entered into the making of this will. A careful examination of the. evidence leaves us in entire and emphatic accord with this view.
Both of these judges, however, were convinced that, by reason of what they thought was an error on the part of the lawyer who drew the will in misinterpreting the testator’s intentions, and also in advising testator of the legal effect of one of its provisions, the will as executed did not, in at least one very important respect, carry out the intention of the testator, and that it was not, in this respect, understood by him when he executed it. For this reason probate was refused. We think this was error.
. While we agree that a situation arose under the evidence (by reason of testator being unable to read the English language, taken in connection with the testimony tending to show a state of mind or intention on his part inconsistent with that indicated by the will as executed) which put the burden upon
The contrary view of the learned trial judges below seems in reality to have been based upon two uncontrolling elements, namely—first, what they thought was a variance between the will as executed and the instructions from which it was prepared, and secondwhat, if it existed, amounted to a pure mistake upon the part of the testator (whether self-induced or resulting from erroneous legal- advice of his lawyer) as to the practical effect of a provision of the will which he knew it contained and thoroughly understood.
As to the first of these, it is quite immaterial whether the will did or did not correctly embody the instructions, if in point of fact the testator, when he executed it, was made acquainted with and understood its contents. As was said by Vice-Ordinary Beecl, in In re Livingston’s Will, 37 Atl. Rep. 770: “It is said that her instructions were not followed in drafting the will; * * * and that the will as drafted does hot carry into effect that wish. * * * But, whether it does or not, if she was capable of making a will, and there was no fraud practiced upon her by which she was misled into signing what she did not wish to sign (and there is no proof of fraud in this case), it would not matter what variation there might be between the instructions and the executed instrument.
As to the second: Assuming that the lawyer’s assurance that the “such-sum-or-sums-as-may-be-necessary” clause would permit the executors to pay over the entire income after the debts were satisfied, was intended and understood as legal advice upon the construction of this clause, and that it was legally unsound (which, under the circumstances, we think it was not), that, also, in the absence of fraud or of undue influence, is insufficient to defeat probate of the will. It is no new thing for provisions in wills to turn out, under the established rulings of the courts, to have a very different meaning from that which the testators themselves, under the honest but mistaken advice of counsel,. thought they had when the wills were
So, in this case, the testator was made acquainted with and understood the fact that the will which he was about to execute provided that his wife should get, during her lifetime, from the executors, out of the income, $40-per week and such additional sums as should be necessary. Knowing and understanding that, hes knew and understood exactly what he would have known and understood, if he could have read the English language with average intelligence and understanding and had read this will himself instead of its being read to him. We think, therefore, that the honest legal advice (if it was legal advice) given him as to what the executors could legally do under the clause in question, can, even if legally unsound, have no more effect in preventing probate of the will in the one case than in the other, which is none at all.
This brings us to the one material question in the case, which is:. Did the testator when he executed, this will know and understand its provisions to the same extent that he would have done had he been able to read and understand written English with average facility and comprehension, and had he read the will himself instead of having it read to him? We think this question must be answered in the affirmative. He was a keen business man, in full possession of his faculties, and
We think, therefore, that proponents have sustained the burden of showing that testator knew and understood the contents of the will when he executed it, and that it should be admitted to probate.
We may say in this connection also that we are not at all certain that there was any mistake whatsoever made by anybody in the preparation of this will or in what was said as to the practical effect of the provision in question. When the testator’s personality was withdrawn by death, it left this heavily-involved estate in a most precarious condition, and no one understood better than the testator when he made his will that this would be so. He knew that his estate, consisting, as it did, exclusively of one hundred small houses, worth maybe $200,000, but subject to over $100,000 of mortgages and also to shrinkage in rental and market value from deterioration and obsession, not to mention the cost of constant repairs'and renewals, with $10,000 of unpaid taxes in arrear, and upwards of $25,000 of floating debt, was a leaky ship in a stormy sea,
But be this as it may, we are quite satisfied that for the other reasons herein stated the will should receive’ probate and the order of'the prerogative court affirming the order of the orphans court denying probate is, therefore, hereby reversed and the matter remanded to the prerogative court in order that an order may be duty made admitting the will to probate. The costs will be paid out of the corpus of the estate.