15 N.J. Eq. 367 | N.J. Super. Ct. App. Div. | 1862
This case comes before the court upon an appeal from a decree of the Orphans Court of the county of Bergen, refusing to admit a paper writing to probate as the will of Eliza Moore.
The factum of the will is fully established. The instrument was executed and attested with all the formalities prescribed by the statute.
Nor is there any sufficient ground to question the testamentary capacity of the testatrix. There are, indeed, one or two witnesses, on the part of the caveator, who entertain a contrary opinion, and state circumstances tending strongly to corroborate that opinion. But the weight of evidence is very decidedly in favor of testamentary capacity. The evidence of the family physician of the testatrix, and of the pastor of the church of which she was a member, is clear and decisive. Upon this point I entertain no doubt.
The ground relied upon by the caveator is, that the will was procured by undue influence.
What constitutes undue influence can never he precisely defined. It must necessarily depend, in each case, upon the means of coercion or influence possessed by one party over the other; upon the power, authority, or control of the one, the age, the sex, the temper, the mental and physical condition, and the dependence of the other. Whatever destroys the free agency of the testator constitutes undue influence. Whether that object be effected by physical force or men
In considering the question of undue influence, therefore, it becomes essential to ascertain, as far as practicable, the power of coercion upon the one hand, and the liability to its influence upon the other..
The testatrix, Eliza Moore, at the date of the will, had been nearly seventeen years a widow, her husband, Lewis Moore, having died in June, 1843. She had been the mother of thirteen children, of whom nine survived, and one of those deceased had left sons who were the objects of her bounty. Her children had all attained mature age. Three of them, a son and two daughters who remained unmarried, resided with her in the homestead at Hackensack. Her precise age does not appear by the evidence. Hone of her children speak of it. Her pastor, the Eev. Mr. Warner, thinks she was about seventy-five or seventy-six when she died. In this he was doubtless in error. Her son states that she was married in 1798, when she could have been, according to this estimate, but thirteen or fourteen years of age. It is safe to assume that at the date of the will she was about eighty years of age. She had been in the vigor of her days, as all the evidence shows, a woman of remarkable energy and decision of character. One of the witnesses describes her as a woman of strong, earnest, and decided will; another, who knew her well, says she was a woman of great energy, strong purpose, and clear foresight. She was very deliberate, a woman of good judgment, and when her judgment was once formed nothing could shake it. She was perfectly self-reliant, and not subject to be influenced by others. Another witness considered her a woman of firm mind, unusual deter
At the date of the will her physical and mental powers had become impaired by age, disease, and care. She was totally blind. She required constant attendance and nursing. She was helpless, and confined almost entirely to her bed. She suffered from extreme nervous irritability, and was often in a state of high nervous excitement, resulting from family troubles. Within a year preceding the date of the will, she had been greatly shocked by the death of a daughter. Her physician testifies that “ there were times when she would not have been capable of directing her attention to the matter of making a will. The whole powers of her mind would be overwhelmed, apparently, by the intensity of her suffering. The symptoms of her nervous morbid irritability exhibited themselves in a very remarkable degree. I gave her nervines and tonics, and for the rest depended upon kind nursing and freedom from excitement as much as practicable. Powerful and frequent anodynes were used, and she was kept to some extent under their influence. The highly morbid irritable state of the nerves under which she labored is very frequently the precursor of insanity, and it was to enable the brain to recuperate its energies and powers that I employed these remedies to prevent that unfortunate 'result. In the nervous condition in which the testatrix was, anything that excites the mind greatly makes it •temporarily in a condition approaching insanity, and may very easily produce insanity. The morbidly sensitive nervous state in which the testatrix was about the time of making the will would materially diminish her powers of resisting urgent and continual importunities of those about her to change her will. To the question, whether the testatrix would certainly have yielded to any continued urgency by the united importunity of the children that were about her, he says, I cannot answer differently from what I did to the
I deem this testimony of her physician especially worthy of notice, not only from the fact, that he had the best opportunities of forming a correct opinion, having been for a long period in close attendance upon the testatrix, but also from his high professional standing and intelligence, and because he is one of the executors who offer the will for probate, and can have no inducement, from feeling or otherwise, to give color to the case adverse to the validity of the will.
Many years previous to the date of the will, Doct. Blauvelt, a son-in-law of the testatrix, the husband of her daughter Eliza, the caveator in this cause, died leaving an infant daughter. Upon his death-bed the testatrix had promised him that she would treat his child as one of her own children. This promise she appears to have regarded as sacredly binding. She had at different times made her will, giving to this granddaughter a share of her estate as one of her own children. The last of these wills is an exhibit in the cause. It is dated on the eighth of September, 1854, and at the time of the execution of the will in question was in the hands of her counsel, by whom it was drawn, and who was appointed one of the executors. This arrangement in favor of the granddaughter was known to her children, and was regarded by several of them as partial and unjust. The testatrix had been urged by them to alter it, but she had steadfastly refused, and had declared that while she retained her senses it should never be done. Four of the children are represented to have been particularly dissatisfied with the arrangement, and desirous to have it altered, viz. John, Louisa, wife of-Fair, Charles, and Mary, the two latter residing with their mother. They remonstrated with the mother against her giving to the grandchild, as well as to its mother, who was still living, the share of a child. This state of things in the family was no secret, but seems to have been well known in the neighborhood. It is spoken of by the Rev,
Louisa Moore, a daughter of the testatrix, who left home a few days before the execution of the will, gives this account of some of the circumstances preceding its execution: “ The opposition of the children, opposed to the will as it had been executed, was manifested by their arguing and reasoning with ma, and trying to convince her that what she had done was wrong. The influences were more especially exerted upon her mind for the last two years. She was talked to frequently, sometimes for an hour or two at a time. There was a great deal of trouble about the will, and they told ma that they wished her to write a codicil, because, they said, she had left Eliza Zabriskie what she had no right to leave her, and that was a share in the homestead, and then they said she must alter that. I left home on account of the trouble about the will, and I left her very much distressed, and as I thought completely under the control of those who were dissatisfied with the will. From what I saw of my mother, and of the influences that were brought to bear upon her, she would not have made this will if left to herself. She was not in a fit state of mind to resist the influences they brought against her to have her make this will. From
Much of this testimony is but matter of opinion, and is entitled to consideration only so far as it is sustained by facts.
Alice H. Kelk, after stating the disposition which the testatrix informed her she had made of her property under the old will, testifies: I believe Mr. John, Miss Mary, Mrs. Fair, and Mr. Charles first suggested to her a change in that will, or the making a new one. First, she was requested to add a codicil to the will, and the doctor and minister being asked as to her capability to do it, when they said they thought she was capable, then her children told her, if she was able to prepare a codicil she was able to write a will. This might have been a few weeks or a few days before the making of the new will. When Mrs. Fair had come up to see her, after being in New York, Miss Mary told her that John was coming up the next day. She then asked Mrs. Fair what John was coming for. Mrs. Fair answered, he was coming on business, saying you have got to make a just will, and you have no right to leave a dollar to any but your children. The next day Mr. John came up, and it was talked over and arranged to have it done the next day. In the morning, the person she wished to have to make the will was away. Then she took hold of that as an excuse for not doing anything then. After that Mr. John Moore came up to her, and hid her good-bye, saying he should not see her again, or words to that effect. Then Mr. Charles took hold of the subject, saying she had done it now, that it would be worse than ever — the affair or the property would be worse than ever. Finally she seemed to think that it would be best to do the thing. The whole of this was under this excitement, and she consented to do it. Then another gentleman was fixed upon to draw the will. After it was done, she was constantly uneasy, and several times requested to have it destroyed. Finally she sent for Mr. Zabriskie, and I suppose said a dozen times each way, “ destroy it,” and “ don’t de
The credibility of these two material witnesses, the nurse- and the daughter, are not seriously impeached. It is said, indeed, that the one is a partizan or friend of the caveator, and the other is not of very strong mind, but nothing is suggested unfavorable to their character for veracity. Let us see, then, how far their testimony is incidentally sustained by admitted facts or by the direct testimony of other witnesses. It is clearly proved, as stated by Miss Louisa Moore, that she was absent from home at the time the will was executed. Charles and Mary were at home. The will was executed on Friday, the fourth of February. On Thursday, the day previous, John arrived from New York> Mrs. Fair came on Wednesday. On the day of the execution of the will, and on the day previous, John, Charles, Mrs. Fair, and -Mary were in the house with their mother alone. Ho other member of the family was present, and no one else but the nurse, whose testimony we have. On the afternoon of Thursday, the contents of that will and who should be the executors were discussed and settled. In the language of
The only question is, whether that change of views was induced by undue influence? Was it induced by persistent importunity, which she was too weak to resist? Was she harassed into submission by excessive importunity? Was it assented to for the sake of peace ?
We have, at the outset of this inquiry, not only the direct testimony of two witnesses, but the significant fact, that although this importunity had continued for years, while the testatrix retained her health and vigor of mind, she successfully and utterly refused to yield to the importunity or to alter her will. The importunity was successful only when the powers of her mind and body had been weakened by age and infirmity, when she was bed-ridden, blind, racked by disease, and utterly dependent upon her children. We have the further significant fact, that after the new will was executed, the testatrix was dissatisfied, and sought to destroy it. Doct. Hasbrouck testifies, that on the seventh of Eobruary, three days after its execution, she spoke to him of destroying the will. He does not give us her language in full, but it is manifest, from his reply, that she was dissatisfied with the will. “I said to her,” is his testimony, “as your property, Mrs. Moore, is your own, you have a perfect right to do with it as you please; and if you have not made such a will as you think you ought to make, all you have to do is to destroy it.” The witness inferred, from the reply of the testatrix to this statement, that she was not dissatisfied. Her reply was, “ as to that, doctor, I don’t think I can better it.” The language is certainly equivocal, and admits of two very different interpretations. The testatrix has put her own interpretation upon her language, for within a day or two afterwards she acted upon the doctor’s suggestion — sent to the scrivener, and requested him to destroy the will. We have the scrivener’s account of this transaction, and of the
False representations were also made to the testatrix of the contents of the former will, in order to induce her to make the new one. The title to the homestead lot, upon which the testatrix resided, she had derived from her father, Michael Price. She believed that she had title to those premises for life only, and that on her death they belonged to her children. It would seem, from the evidence, that she had been advised by her counsel that she had a legal title to those promises in fee. nevertheless, by her will, she directed that her daughters might remain in possession of the homestead for one year only after her death, and that it should then descend to her heirs-at-law, as if she had died intestate. Representations were made to the testatrix, that by this will
The material circumstances relating to the procurement and execution of the will are, that the children, not the testatrix, were dissatisfied with the old will; that its contents were well known to the family, had long been the subject of complaint upon their part, and of urgent entreaty that an alteration should be made; that as long as the testatrix was in health this was resisted; it was yielded to only when the testatrix was enfeebled in mind and body by age and disease; that the children wore the active agents in the procurement of the will. They met at the house of the testatrix for the purpose of having it executed without the previous request or knowledge of the testatrix; they made application to the persons intended to act as executors, and called in the scrivener, summoned the witnesses, gave directions to the scrivener for the preparation of the entire will before he had seen the testatrix; were present when the instructions were received by the scrivener from the testatrix, took an active part in giving those instructions, (so much so as to prompt the suggestion, by one of the sisters to the scrivener, that it was the will of her mother, not of her brothers, that he was preparing); importuned the testatrix not to revoke the will after it was executed — interfered to prevent the scrivener from destroying it, in compliance with the instructions of the testatrix — were present whén the testatrix ordered the scrivener to destroy it, and by intimidation prevented her from having the order carried into execution. A total absence of all evidence that the testatrix ever before, or at, or after the execution of the new will in the absence of the children, by whose influence the will was
There is evidence, also, that the testatrix was threatened, as well as importuned to alter her will. Her fears were directly appealed to, fears not of personal violence, but of family discord and litigation among her children. Louisa Moore testifies, that after her mother was taken sick, those that influenced her threatened her to put all the property in law, if she did not do as they told her, and they told her the world said it was an unjust will. Again she says, I heard them threaten her to put all her property in law if she did not alter her will. I heard Mrs. Fair say that it would all be put in law if she did not alter her will, and I heard Charles tell her so too. To see the full force of this evidence, and the probable effect of these threats upon the mind of the testatrix, it is necessary to revert to the testimony of John L. Moore. He testifies, that after his father’s death there were law suits between him and one of his brothers respecting the father’s estate. It was against the views of the mother, and she sent him word that if the suits were not stopped she would disinherit him. He believes she did disinherit him at one time, but he was afterwards reinstated in her will the same as the other children. In consequence of these difficulties, upon more than one occasion, the mother and son were not upon speaking terms. For years the son did not enter his mother’s house or speak to her. How many years this continued the son does not state. But
The evidence satisfactorily establishes the fact, that the writing offered for probate was procured from the testatrix •by undue influence, and is not her last will and testament.
• The decree of the Orphans Court must be affirmed with costs.