27 N.J. Eq. 463 | N.J. Super. Ct. App. Div. | 1876
Thomas Alexander, late of the city of Newark, in this state, ■died there in December, 1873. On the 2d of January, 1872, lie executed, at the office of Messrs. Frelinghuysen and Kirkpatrick, in the presence of two witnesses, one of them the first named of those gentlemen, a paper purporting to be his last will and testament. This document had been drawn for him by the other member of the firm, who is named therein as one of the executors. By it he gave to his brother Reverdy $300, and to his sister Margaret, $600. He also gave to his nephew, Stewart B. Linthicum, $1000, and to his niece, Eliza Kerr, $500, to be held in trust for them respectively, by the executors, until they should respectively have attained the age of twenty-one years, and then to be paid to them, with all accumulations. These two legacies were to lapse and fall into the residue of his estate, in case of the death of the legatees in his lifetime or before attaining the age of twenty-one years. To Allen Griffith he gave a chest of tools, which belonged to him, the testator, before the death of his father, Thomas S. Alexander. All the rest of his property he gave to his sister Mary, now Mrs. Bingham. Erom the decree of the Orphans Court of Essex county, admitting this document to probate as his. last will and testament, this appeal was taken.
The testator, though at the time of executing the instrument in question, was of mature years, being then thirty-night years old, was, as he had been from his childhood, of a very low grade of intellect. His boyhood and youth had been spent in Maryland, where his father long practiced the legal profession, of which he was a distinguished member. In 1866, the latter removed to Newark, bringing the testator with him as one of his family, and the testator resided with him there .until his father’s death, which occurred on' the 4th of December, 1871. His father, by his will and the codicil thereto, after certain specific legacies and a small pecuniary one, gave .all the residue of his estate to his four children and his granddaughter, the child of his deceased daughter. As to Thomas’ share, which was one-sixth of'the residue, he made the 'follow
The view which I take of this case, however, renders it unnecessary to pass upon the question of the testator’s capacity, except as connected with the question of undue influence. That he was of a facile disposition and liable to be imposed upon, is evident from all the testimony. His father, vested a large discretion in his executors as to the testator’s share of his estate, expressly because of the facility of the latter’s disposition, and to protect him against the practices of designing men; and he limited the ■exercise of the power of testamentary disposition. The testimony shows unmistakable evidence of undue influence over the testator by his sister Mat'y, the principal legatee, .to whom he gave almost all of his estate. That she design
The testimony in the cause leads to the conclusion that the paper in question is not the will of the testator, but that by undue influence on the part of the principal legatee, his free agency was virtually overborne. The testator was, according to the- testimony of the physicians whom she employed to certify to his condition, a semi-imbecile. He was subject to her control and influence, and she is shown to have exerted a malign influence over him, against his sister, who had equal claims with her to> his estate. She appears to have greatly interested herself in the making of the will, as is evidenced by her declaration that she had “ made him make a will,” and she appears to have provided herself in advance with the means,, as she supposed, of sustaining the will against the objection of incompetency, which was obviously to be expected, by obtaining the certificates of physicians on that head. The' testator resided with her from the death of their father, in December, 1871, until February, 1873, when she married and left Newark, and went to reside in Philadelphia. From the time when she left Newark up to his death,, which occurred in December following, she was in constant correspondence with him. She says she received, on an average, two or three letters a week, and various postal cards, and that he visited her in Philadelphia twice in that time, and would have paid her more frequent visits, but that she was called away from that city. She appears to have kept up constant communication with him, and her influence over him seems not to have diminished. Her testimony, instead of relieving her from the imputation of undue influence, only makes it the more clear that she, in fact, did exert it. The instrument ought not, under the circumstances, to be admitted to probate as his will. The law secures the right of testamentary disposition, neither hedging it about, with