26 N.J. Eq. 513 | N.J. Super. Ct. App. Div. | 1875
The Oedihaev.
Dr. Gideon Humphrey, then of Beverly, in the county of Burlington, made his will on the 28th of August, 1866. By it he directed that his debts and funeral expenses be paid, and that his real estate be sold by his executors. He gave to his son Henry certain articles by way of specific legacy : and to his grandson, Gideon Moore, certain other articles, in like manner. He gave to Rachel Cavis, his housekeeper, $300, and certain articles of household furniture. To his daughter, Adelaide Josephine Hardcastle, he gave one of his portraits of himself, and household furniture not before disposed of. To his two grandsons, David Hays Humphrey and George M. Humphrey, he gave $300 each, to be paid to them respectively, on their attaining to the age of twenty-five years, with the interest accruing-thereon from the time the money should come to the hands of his executors. If either of his said grandsons should die before attaining to that age, the survivor was to take his share; and if both should die under that age, the legacies bequeathed to them were to be equally divided between the testator’s two daughters, Eliza L. Moore and Adelaide J. Hardcastle. To his granddaughter, Kate Hardcastle, he gave $1000. The residue of his estate he directed to be equally divided between his two daughters above mentioned, to be held by them independent of the control of their respective husbands. In case of the death of either of his daughters, her children were to take her share. He states that hé has not given much of his property to his son Henry, because of the latter’s being possessed of a competency, and that Henry’s sisters, therefore, had more need of the testator’s
On the 31st of January, 1867, he executed a codicil to the will, by which he revoked the gift to his daughter Adelaide, (who was then dead,) of the half of the residue of his estate, and gave the half given to her by the will, to her daughters, Rate Hardcastle, Belle Hardcastle, Adelaide Kedenburg, Lavinia Jenkins, and Anna Pennock, their heirs and assigns forever.
On the 2d of March, 1869, he executed another codicil, substituting his son Henry as executor, in place of Mr. Deacon.
On the 3d of June, 1872, he made another codicil, as follows : “ All that is contained in my said will relating to my daughter, Adelaide Josephine Hardcastle, and children, and also all that is contained in my first codicil thereto, dated January thirty-first, A. d. one thousand eight hundred and sixty-seven, relating to the same, I do hereby revoke and declare null and void. After the payment of all my just debts and funeral expenses, and all the legacies mentioned in said will not hereby revoked, the residue of my estate, real, personal, or mixed, I bequeath to my daughter, Eliza D. Moore, for her use and disposal, in whatever manner she may think best. The last item of my said will, appointing James Sterling and John C. Deacon my executors, I hereby revoke, and in their stead, nominate and appoint my only son, Henry M. Humphrey, of Stamford, in the State of Connecticut, my sole executor.”
The controversy is in regard to this last or third codicil. The testator died on the 3d of August, 1872. The will and codicils were admitted to probate by the surrogate of Burlington county, on the 21st of August, 1872. Henry M. Humphrey, the executor named in the second and third codicils, having renounced the execution of the will and codicils, letters of administration cum testamento annexo were granted to Peter Powell on the last mentioned day. The testator’s estate in Hew Jersey was inventoried at §6871.90. It appears by the final account of the administrator, filed in October, 1873, that
The last codicil was executed on the 3d of June, 1872, two months before the testator’s death. It is insisted, on behalf of the appellant, in the Orphans Court, that- the testator, at the time when that codicil was executed, was not possessed of' testamentary capacity, and that it was. the result of undue influence on the part of Mrs. Moore. Though the testator was a very old man, his age, at the time of his death, having been about ninety-four years, he appears to have retained to a remarkable degree, his mental faculties and characteristics, among which wore firmness, independence and decision. He was blind.
Of his two daughters, Mrs. Hardcastle resided with him for the greater part of the time from the death of her husband, about the year 1859 or 1860, until her death, which occurred in or about the yeai\ 1867. She had. six children, five of whom were daughters, ' Some of them the’testator brought up. After the death of Mrs. Hardcastle, none of her children remained with him, except for short periods, except Kate, who had lived with him from the time when she was about three and a-half years old. She married in the early part of the fall of 1871, and left him and went to Europe to live. Her last visit to him was the last of August or first of Septem
.Before Christmas, 1871, and before Mrs. Moore came to-live with him, he sent for the scrivener, Mr. Powell. Rachel Cavis, the housekeeper, says, that the testator sent her for Powell before Christmas, and said he was going to “ make a
Powell further says, that on that visit, he took a draft of what he had prepared, and read it to the testator; that the draft left the $1000 stand valid; that the testator objected to that. He says there was no one in the room with them at this visit; that the testator was sitting up ; that he then returned home and made another copy ; that he drafted another codicil when he got home, and drafted it according to the testator’s direction, and returned to him, he does not know whether on the same or the next day, and took the draft with him and read it to the testator, and he said it was right—it was what he wanted; and he says he then went home and copied it on the paper which was executed. He says there was no one in the room with them on that visit; that he returned the next day, by appointment, to have it executed ; that the appointment was made when he read the last copy to the testator; that he does not remember that any arrangement was made as to the witnesses then ; that when he returned at the time appointed, which was four o’clock in the afternoon, he was told, he thinks, by the testator, that they expected to have John Thomason and James D. Bennett as witnesses to the codicil; that he does not remember that the testator said he had sent for them, but he did send for them ; that he sent a colored boy; that they did not come ; that the boy brought word that they were not at home; that the testator then sent the same boy for Ezra C. Tompkins and Mr. Pritchett, the latter of whom was a stranger to the witness ; that, on that visit, and before the witnesses came, he read the codicil to the testator; that the testator and he had no talk about it, further than to ascertain that it was the testator’s mind, and that the testator said it was what he wanted. The witness details the formalities of the execution, from which it appears that the codicil was duly-executed. He testifies that the testator was “decidedly” of sound and disposing mind, memory, and understanding when the codicil was executed. The witnesses both testify’ that they'
The charge that the codicil was the result of undue influence on the part of Mrs. Moore, seems to be wholly unsupported. She does not appear to have done or said anything to induce the testator to make that codicil. She spoke reproachfully in his presence, of the fact that the daughters of Mrs. Hardcastle paid so little attention to him. It appears, also, that she and the testator both complained of like inattention on the part of the Gregorys, who lived in Beverly. This is, according to the evidence, the extent of her influence. Such expressions are not enough to justify the conclusion that the codicil was the result of undue influence. She neither bad the will, nor interested herself, as far as appears, in any alteration of it. The will was kept by the housekeeper, who, in taking charge of it and producing it, acted under the directions of the testator himself.
It is said there was a feud between Mrs. Moore and her nieces. The evidence shows only that she spoke reproachfully of them in regard to their neglect of their grandfather, and, according to one witness, spoke of them as liars—not, however, in the testator’s presence.
Whether, in any given case, there was undue influence, must be determined from the facts. It is not a presumption, but a conclusion. Mrs. Moore may have disliked her nieces; she may have spoken reproachfully of them for neglecting to visit their grandfather ; she may have said to the witness referred to, that they were liars. She, indeed, lived in the same house with the testator, and was in daily and nightly attend
The testator seems, at no time, to have contemplated an equal division of his property, even among his children. His will, which no attempt is made to impeach, gives nothing of consequence to his- son Henry; and to the sons of his son Washington, it gives only $300 apiece. By the first codicil he gave the half of the residue he had given to his daughter Adelaide, to her daughters alone—giving nothing to her son. A discrimination made by a man of the testator’s age, and in his condition, in disposing of his estate by will, in favor of his only daughter, (who, in this case, may be presumed to have been advanced in years,) who has given him her whole time, and with assiduous attention ministered to his wants when he most needed care and sympathy, can neither be regarded as evidence of incapacity or of undue influence. Especially is this so when the discrimination is in her favor, against granddaughters, who, having been brought up by him, in his family, have married and left him. There is evidence that the testator considered, also, that he had ■ done his full duty towards these granddaughters, without leaving them any portion of his estate ; for, in his conversation with the scrivener, in regard to the last codicil, he said that, if it. had not been for his grandchildren, he might have had something worth leaving.
The decree of the Orphans Court will, so far as the third codicil is concerned, be reversed. Complaint is made of the-allowance made by that court for counsel fees, $1000 to the counsel of each side. The taking of the testimony occupied five days only. Under the circumstances, the amount awarded is excessive. The decree will be reversed in that respect,, also. A counsel fee of $300 will be allowed to the counsel of the appellants, and the like sum to the counsel of the respondents, in the Orphans Court. A like counsel fee will be ordered to be paid out of the estate to the counsel of the appellants and respondents respectively, in this court.