20 N.J. Eq. 463 | N.J. Super. Ct. App. Div. | 1869
In this case, the fact of the execution of the will is clearly proved by three witnesses, the two subscribing witnesses, Haylor and Wight, and E. E. Cornell, the executor, who offers it for probate. They also prove the testamentary
There is no proof of either the possession of influence over him by Mr. Cornell, or any undue exercise of it, such as to affect the validity of this will. In fact, there is no proof up to this time of any influence or any attempt to exercise it over him by Cornell.
Where a testator is blind, as in effect he was, it must be shown that he knew the contents of the will before it was executed by him. This is shown positively by Wight, who drew the will; he testifies that before he committed to writing each provision of it, he stated such provision distinctly to the testator; and by Wight and Cornell, who both state that before Uaylor came, the will was read over in testator’s presence.
The real difficulty in the case arises from the fact that important parts of the provisions of the will differ from what was his well known and often declared intentions, before and at the time of dictating the will, and which there is reason to believe he retained afterwards, and are contrary to his settled views and peculiar notions about his property.
The will in question gives all the estate, real and personal, to E. E. Cornell, the executor, as trustee, during the life of Lawrence Vanderveer, who is about thirty-five years of age, and vras never married, with power to expend any part or the whole of the income of all the estate, in improving Van
By this, neither the title nor the possession of the property can be in any one of the blood or name of Vanderveer,. as long as Lawrence, the only one of the name provided for, shall live, that is, according to the usual probabilities of life, for about thirty years; and the amount of income which he may receive depends upon the discretion or fancy of the trustee in improving. A gift of the homestead, and the
Mr. Wight is a lawyer, and has practiced as such in the city of New York for several years, and has resided at Somerville for three years. Idis profession is a respectable ono, and although there may be members of it in the city where he practices, of bad character for integrity, yet a large proportion of them are men of high character. If he had been wanting in character, something might have been shown which would have affected his credit, and enabled the court to give only such weight to his testimony as it might deserve.
Mr. Cornell, the other witness, is a native of the state, and has spent much of his life in Somerset county, where he is •well known. He is, and has been for years, a clergyman of good repute in two most respectable denominations of similar creed and character; he is the son of a clergyman, and has brothers and brothers-in-law who are clergymen, and he is descended from a family well known in the state, whose name has, for generations, been regarded as a guaranty of pure and elevated character. Had he, in such a position, fallen from this standard, it would have been marked against him, and might have been brought to bear upon his credibility in this cause. •
It is difficult to disregard the clear and positive evidence of twro such witnesses, uncontradicted, solely upon what ap
There are some contradictions of both, by other witnesses, in collateral matters, that go to shake either their credibility, or the accuracy or credibility of these witnesses who prove them. ■ But I do not think, on the whole, that they are sufficient to affect their credibility seriously.
There is more, in my opinion, in the story which each of them has told about his dislike of the position in which he is placed in this will, to create distrust, than in the contradictions of others. Mr. Cornell says that he was dissatisfied with the position in which he was placed in the will, on the ground that the relatives of the testator showed ill feeling, and with the position of his son, because it would be demoralizing for a child to grow up with the idea of being made rich by another’s death. It is difficult to believe in the truthfulness of the reason as to his own position, as he must have known, when he assented to become executor in such a will as this, that almost all the testator’s relatives would be dissatisfied; and his extreme haste and eagerness, after testator’s death, to prove the will, in violation of the usual regard shown to the funeral rites, and of the delay required by law, showed that he had but little regard to public opinion, or the dissatisfaction of any of the disappointed. The fear for a child growing up seems misplaced for a counselor-at-law of twenty-five, engaged in practice, and largely in other business of a mercantile nature, especially in a father of a large family, growing up with the knowledge that at his death, or that of their mother, each would come to a large estate. He must have been inured to the anxiety, and should have reflected that the mature mind of his oldest son could have borne the prospect of a fortune contingent in itself, and which could never devolve upon him, except at-the end of a life, the probable duration of which was thirty years. The honesty or sincerity of this pretence, suggested to the testator, cannot be believed. Wight says, too, that he felt the great injustice and hardship of a position by him
Those pretences of these witnesses, which I cannot but regard as insincere and untruthful, have somewhat impaired their standing, in my view. But yet, men often gloss over and apologize for their conduct, in certain cases, with excuses devised for the purpose, and which they half believe, who would not, under oath, testify to a direct untruth.
It is difficult to adopt any theory by which this will, or any part of it, can be rejected, which does not involve the veracity and character of these two witnesses.
Besides, if this will is rejected, a part of what is the clearly established testamentary intention of the testator, which he supposed that he had provided for, and which this will will carry into effect, would be thereby defeated. He, without doubt, intended to make provision for Lawrence during his life, out of the income; this will will give effect to that intention, at least to a great extent, for the seemingly unlimited power to expend the whole in improvements, and in employing agencies if he should attempt to exercise it, may be restrained within proper limits by the courts. And the gift of the whole on the death of Lawrence to his male issue, is, beyond doubt, one of the long cherished intentions of the testator. If the whole will is rejected, and the testator declared to have died intestate, this result must follow. And I am not prepared, in a case where there is so much doubt
Lord Chancellor Cowper, in Plume v. Beale, 1 P. W. 388, refused relief against a legacy of £100, interlined in the will of the testatrix, by Mrs. Beale, while watching the corpse in the room where the will was, and placed his refusal on the ground that the spiritual or probate court had power to prove the will, with a reservation of this legacy. Sir George Hay, in Barton v. Robins, 3 Phil. 442, note b, admitted part of a will, and rejected the residue; his judgment was affirmed in the Court of Delegates, in 1769. Sir John Nicholl, in Billinghurst v. Vickers, 1 Phil. 187, pursued the same course. Surrogate Bradford, of New York, in the case of Burger v. Hill, 1 Bradf. 360, approved and acted upon the same doctrine, and sustains it by many precedents. One of his predecessors, Surrogate Campbell, .a judge of reputation on testamentary matters, in 1833, in the case of the will of Catharine O. Young, in an opinion which is not preserved or reported, but which I have read, admitted part of the will to probate on evidence like that in this case, showing that the part retained was according to her well known intentions declared to her family, and on proof that the part rejected differed from such intentions and was, at the instance of those by whom she was surrounded, put in a will executed in extreme illness when there was some reason to doubt her capacity to change her cherished intention. And, although in a subsequent decision, upon the same will in this court, by P. Dickerson, ordinary, the whole will was admitted to probate, it was because the court did not reach the same conclusion from the evidence, and not because of a different view of the power
I have had great doubt whether I ought not to adopt this course with regard to this will. But notwithstanding all those considerations, and the great difficulty I have in really believing that the testator, understanding^, could have executed a will like this, I do not feel at liberty to disregard the evidence of two unimpeached and respectable witnesses, who clearly and positively testify to the facts necessary to establish this will. Courts and jurors must be cautions in rejecting positive testimony, and should never disregard it simply because of their own theories of its probability or improbability. And fraud should not he inferred, because we see it was possible or even rather probable; hut it should he shown by positive proof or circumstances of such force as not to permit of serious doubt.
Eor these reasons I have been constrained to como to the conclusion to admit this will to prohato entire. And if I should err in this result to which I have arrived, not without groat distrust of its correctness, I am relieved by the fact that since this cause came into court, an act has been passed giving an appeal to a court composed of judges whose learning and ability will give relief from any errors into which I may have fallen, and whoso numbers will give authority to, and confidence in their decision. And if they should differ from me in tlieir view of the facts, their authority will finally settle the practice to be pursued in such
In this case, as there were clearly reasonable grounds for the action of the caveators in contesting this will to the full extent in which it has been done, their costs and expenses, including proper counsel fees, must be paid out of the estate.