26 N.J. Eq. 523 | N.J. Super. Ct. App. Div. | 1875
The Ordinary.
John Gleespin, then of Bloomington, in the county of Somerset, died on the 27th of June, 1873, in his own house at that place, leaving a last will and testament, executed by him with all the requisite formalities, on the 13th of May preceding. By it, after directing payment of his debts and funeral expenses, he gave and devised to his son-in-law, Patrick Shea, to be held by him for the use of his granddaughter, Annie Shea, the house and lot where the testator then lived, to have and use the same for his own use until his said granddaughter should arrive at the age of twenty-one years, at which time he gave and devised that property to his said granddaughter, to have and to hold the same to her and her heirs and assigns forever. In case of her death before attaining to the age of twenty-one years, he gave the house and.
The testator’s estate consisted of a house and two lots of land, on which he lived, and two other houses and lots, of the value, all together, of from §2500 to §3000. He was an old man. His age was over seventy. He had had two daughters. One married Patrick Shea. She was the mother of Annie, and died on the 9th of January, 1865. The other married Samuel Aird. She died on the 28th of March, 1873, leaving three children : one an infant, another aged about three years, and the other also of tender years, at the time of Mrs. Aird’s death. The testator had opposed the marriage of both of his daughters. He was opposed to Shea, because of his then intemperate habits, and to Aird, because he was a protestant. The testator was a firm Roman Catholic. After the testator’s death, Patrick Shea propounded the will for probate. After a protracted trial it was, by the decree of the Orphans Court of Somerset county, admitted to probate. Erom that decree an appeal was taken to this court.
It is insisted, on the part of the caveatrix, Sarah Aird, one •of Samuel Aird’s children, that the testator had not testamentary capacity at the time of making the will, and that the will was the result of undue influence upon the testator on 'the part of Patrick Shea.
The evidence fails to show any want of testamentary capacity. The testatór appears to have made two wills before •that under consideration; one in 1870, and the other in 1871. By the former, he gave the house where he lived to Annie -Shea, and the rest of his property to the German Catholic 'Church. By the latter, he divided his property equally
The charge of undue influence rests on the fact that Patrick Shea, his son-in-law, who, immediately after the death of Mrs. Aird, removed with his family from Cranford, in Union county, where he had been residing, to the house of the testator, where he continued to live up to the time of the testator’s death, a very short time before the will in question in this suit was made, consulted with the priest at Plainfield, as to how he should get from Judge Co wen - hoven, of Hew Brunswick, the will which the testator had made in 1871, and which had been left with Judge Cowenhoven, who drew it; that he subsequently went to that, gentleman and asked for the will, and on his request being denied, had the will read to him; that he afterwards brought the testator to Judge Cowenhoven’s office, and the will then was delivered to the testator; that he went to Plainfield and got the priest there to go to the testator, stating that the latter was very ill and requested his religious offices, and that the same day he got Mr. Coward, the lawyer who drew the will, to go to the testator’s house to draw the will, and that Shea and his family, after they came to live at the testator’s house, were unwilling that the testator’s friends should see him.
The testator, as before stated, purchased some real estate on the 1st of March, 1873, on which he paid a deposit of $100, at the conclusion of the sale, and was to pay the balance, $900, on the 1st day of April following. He had provided the money, and had given it to Mrs. Aird for safe keeping. She had given it to her husband, and he had deposited it in his own name, in a bank in New Brunswick. On the day after his wife’s death, he and Foley went to New Brunswick, and drew the money from the bank, and he then insisted on retaining $100 of it, to pay the expenses of his wife’s funeral. To this, the testator objected, because he had to pay the money for the property on the 1st of April. It was suggested that he should give his note for $100, on account of the balance of the purchase money. He finally gave Aird the $100, and the understanding was, that Shea was to go to Cranford, the next day, and borrow that sum for the testator. Matthew McNally heard the conversation. He says he saw Aird, the old man, and Foley, talking about the $100 ; that the old man did not want to let the money go out of his hands ; that he said he thought Aird must be a poor man, to come so far (from Kansas), and not have money enough to bury his wife. Shea had not then gone to live with the testator. It is very clear, that there was ill feeling on the part of the testator toward Aird. This appears to have been increased by the fact that the latter not only “ gave away,” as the testator termed it, his infant child, but gave it to a protestant woman, at which the testator expressed his indignation. There can be no doubt, that Aird •did give the custody of that child to a Mrs. Wheelan, a .protestant, on an understanding between them, that she was to adopt it as her own. Such a state of feeling thus engen
The decree of the Orphans Court will be affirmed.