40 N.J. Eq. 520 | N.J. Super. Ct. App. Div. | 1885
Two of these appeals are by John P. Pemberton and Henry H. Pemberton respectively, from the decree of the orphans court .admitting to probate a paper purporting to be the will of their mother, Caroline Pemberton, deceased, and the other is by Caroline H. Pemberton, their sister, the proponent, from an order made, according to its recital, on consent of her proctor and counsel, directing that the administrator pendente lite pay the counsel fees, and costs and expenses of the litigation, which the court had decreed should be paid out of the estate. Motion is made to dismiss that appeal.
That the testatrix was competent to make a will when the instrument in question which is propounded as her last will and testament was executed, there can be no doubt. Indeed, her capacity is not questioned, but the caveators, her two sons, insist that the proponent (who is her only daughter) procured the will by the exercise of undue influence over her. The will was made -on the 16th of August, 1880, at Asbury Park, where the testatrix was then living with her daughter, who was keeping a boarding-house there. The testatrix died in London, England, November 20th, 1882, over two years afterwards. She went from New York on a visit of pleasure to Europe, October 28th, 1882, And died ten or twelve days after her arrival in London. She was accompanied on the visit by the proponent, and Henry, one •of her sons. Both of the sons were and are physicians. Up to the time of her death they were not aware that she had made this will. According to their testimony, both of them were desirous that she should make a will before she sailed, and spoke to her ■on the subject, and it appears, by Henry’s testimony, that he was ■desirous that she should do so up to the time of her death. By the will, she gave to John mortgages to the amount of $1,200 (of principal) • to Henry mortgages to the amount of $1,962 (of
The attempt made to discredit it by endeavoring to show that the name of one of the three witnesses was added after the execution, and that alterations were made in the instrument after it was signed, by correcting sundry mistakes in the Christian name-of the proponent and adding a note that those alterations and another were made before execution, was unsuccessful. The testatrix herself gave the instructions for the will to the lawyer by whom it was drawn, either on the same day on which it was executed or the day before, at his offiee, to which she went alone for the purpose, and she also brought to him, at his request, her deeds and mortgages, the former in order that from them he might describe the real estate to be devised, and the latter that he-might describe them in the will. She told him that she wanted him to be very particular about the will because her sons, both of them, had threatened that if she ever made a will they would contest it; that she did not know on what grounds they intended to contest it except that one of them had told her that she was-not capable of making a will, and that he would “ fight it ” on that ground. She was therefore desirous that the witnesses-should be persons competent to testify to her competency, and, at her suggestion, two physicians were got. One was Dr. Mitchell, of Aábury Park, whom she herself suggested because he was the physcian employed at her daughter’s boarding-house, where she lived. The lawyer proposed to get as another Dr. Johnson, also-of AsburyPark, but she objected to him on the ground that she-thought that he and her sons were intimate friends, and she did not want to cause hard feeling between him and them. The lawyer-then selected Dr. Kinmouth, of Asbury Park, and Drs. Mitchell and Kinmouth and Mr. Stout, the lawyer, witnessed her execution
As before stated, the caveators insist that the will was the result of undue influence exerted over the testatrix by the proponent,, with whom she lived for the last years of her life. The testatrix was a widow (her husband died in 1875), and when the will-was made she was about seventy years old. Her son Henry was a bachelor, and her other son was married and had a family. It was quite natural that she should live with her daughter, who, though she had been married, had married unfortunately and had been divorced -from her husband. By him she had had one-child, the son before mentioned. It is not surprising that in disposing of her property by will the testatrix should give the greater part of it to her daughter, who was dependent for her support on her own labor and kept a boarding-house as a means-of gaining a livelihood.
Between the mother and the daughter the most affectionate-
“ Mamma, you ought to make a will; indeed, mamma, you ought io make.a will.”
She says the testatrix replied:
“ Carrie, don’t bother me so about it; don’t worry so much about the will.”'
And again she says she heard the proponent say to one of her boarders that she had been at her mother to make a will and that “ mamma did not seem to want to do it.” It will be seen that in all this there is no evidence of any effort on the part of the proponent to induce her mother to make her will in any particular way, but only to make a will; and it would appear’ that her mother was quite able to determine for herself what she ought to do in the matter, and resisted her importunities. Georgianna Lucas, who also was a servant of the proponent in the summer of 1880, says that she heard the proponent say that she had often been at her mother to make a will, for she did not know what might happen. She also says that she heard the testatrix say that the proponent was always worrying her about the will, but she adds that the testatrix said nothing more. John P. Pemberton (one of the caveators) and his wife testify that the-testatrix said that the proponent wanted her to make a will to-protect her against her brothers. Catharine Johns says that the-testatrix told her on the 10th of August, 1880, that the proponent was in a dreadful state of mind; that she threatened to drown herself in the ocean if the testatrix did not make a will in her-favor. She also says that the testatrix said that in order to have-peace she would have to make a will in favor of the proponent, until the matter (in regard to Charles’s departure) had blown-over, and then she could or would destroy it. She says that after-wards she talked to the testatrix again on the subject, and that the testatrix, in reply to a question from her, told her that she had made-a will but very much against her will or wishes. The witness says that she (the witness) then remarked that she (the testatrix) could destroy it as she liked; to which the testatrix replied no; that.
There is evidence in the testimony of Daniel H. "Webster, .another witness on the part of the caveators, that the testatrix deliberately designed, in making what she considered a just disposition among her three children, to give to the proponent the real property devised to her by the will, the giving of which to her makes the greater part of the inequality complained of by the caveators. He says that the testatrix said about two weeks after Charles’s flight, in -the presence of Mrs. Schreeve and himself, that she expected to divide equally among her three children what little she had accumulated; that she expected to see them all righted; that the property on the corner of Chelsea and Third avenues would be enough for Carrie so long as she lived; and that her, the testatrix’s son, John had been wronged in the property (this is said to refer to the disposition of his father’s estate), .and she wanted to see him righted. It does not appear how her purpose to do justice to John as between him and his brother and
John also got a note of $600 from her at the same time, for which he obtained the money to pay the expenses of his daughter’s then contemplated trip to Europe with her. Henry and his brother regarded her as having testamentary caj>acity up to the time when she left for Europe, and the former seems to have considered her competent to make a will up to the very hour of her death. Apart from what is testified to by the witnesses Schreeve and Johns (and that testimony which consists of her declarations, is, as before stated, not competent), there is no evidence of undue influence, and, according to their testimony, the testatrix was quite able to resist any influence which the proponent attempted to bring to bear upon her. Not only does it not appear that the proponent in fact influenced the testatrix against her sons, but it appears that the feelings of the testatrix were kindly towards them up to the last. She paid Henry’s expenses of the trip to Europe, and lent her note to John to raise money to pay his daughter’s expenses of that trip. The daughter, however, was prevented from going by the propo
The decree admitting the will to probate should be affirmed. There will be an allowance of $100 to the counsel of each of the caveators and of a like fee to the counsel of the proponent, for their services in this coux’t, payable out of the estate, and the costs of this appeal on both sides will also be paid out of the estate.
The appeal of the proponent from the oi’der directing the admiixistrator pendente lite to pay the counsel fees and costs, and expenses in the orphans court, will be dismissed, with costs. It