Stroming v. StromingStroming v. Stroming
Appellant, Gilbert Stroming, filed a caveat against the probate of a codicil to the will of his mother. Mary V. Stroming. The Passaic County Court, Probate Division, after hearing, entered judgment on
Appellant‘s brief argues that the trial judge “developed a prejudice against the caveator” which “of necessity influenced his subsequent rulings to the detriment of the contestant,” that this hostility was “perhaps precipitated by argument of (caveator‘s) counsel, who sought to preserve and protect the interests of a client” and, further, “It required more than a perfectly controlled temper on the part of trial counsel to cope with the actions, arguments, criticisms and dictates of the trial court, especially where it was felt that there was no reason or provocation for such conduct.” The charge is based upon a number of sharp exchanges with counsel concerned with rulings upon objections to questions put to witnesses by appellant‘s counsel and upon the vigor and nature of the examination of appellant made by the trial judge. Many of the exchanges with counsel and the court‘s examination of appellant display the use by the judge of a regrettable acerbity of language and an impatience of attitude toward the appellant which should have been avoided despite their provocation in many instances by the unwarranted persistence of appellant‘s counsel in pressing his position after adverse rulings. “It must be borne in mind that, in the effectual maintenance of a strong аnd independent court system, the appearance as well as the actuality of fair and impartial judicial administration must at all times be sought.” State v. Illario, 10 N.J. Super. 475 (App. Div. 1950). The judge and counsel, as officers of the court, share the responsibility for the faithful and meticulous performance of this high duty.
We have, in the circumstances, exercised our discretiоnary power under Rule 1:2-20 (see Rules 4:2-6 and 3:81-13) and have made an independent finding of the facts. We are satisfied that the codicil was properly admitted to probate. We perceive no prejudicial error in the rulings on questions of evidence. Counsel for appellant conceded at the oral argument that the record includеd all evidence he sought to adduce except that he argues he was not permitted sufficiently to develop, particularly on cross-examination of witnesses, evidence
Mary V. Stroming died January 27, 1950, at the age of 58, survived by Gilbert and another son, the defendant executor, Russel F. Stroming. Her husband and the sons’ father, Frederick, died in January, 1940. He had operated the corporate business of Goodyear Sundries & Mechanical Co., Inc., in New York City. After his death his widow acquired 51 per cent of the capital stock of the company and Russel acquired the remaining 49 per cent. Mrs. Stroming, as president, and Russel, as secretary, thereupon undertook the active management of the business. They prospered from 1942 to 1948 sufficiently to receive salaries of $300 per week each. When business fell off, Russel and his mother both advanced sums for working capital which were recorded on the company‘s books as loans and which at the end of 1948 amounted to $5,250 as to each. Mrs. Stroming‘s salary was reduced to $200 per week and remained at that figure until her death. Russel‘s salary was reduced also, but not so much, and the reduction was substantially restored when his mother‘s illness forced her to stop work in April, 1949, and Russel assumed the full burden of running the business.
In January, 1949, the business was in need of more assistance and Mrs. Stroming advanced $10,000 for which she received 32 company notes in the amount of $300 each and one note for $400. Russel had just bought a home and could not contribute to the financing. None of the notes was paid before testatrix’ death.
The will bequeathed Mrs. Stroming‘s 51 per cent stock interest in the company to Russel, and gave the residue of her estate to Gilbert.
Cоnsistent with her testamentary plan, testatrix made gifts to Gilbert of $9,000 in 1947 when he purchased his home, and $12,000 on or about October 25, 1949, when she sold her residence. In April, 1949, before being hospitalized for a second operation for a cancerous condition, she entrusted the company notes to Gilbert. He does not claim that she intended to make a gift to him of the notes at the time but only that he understood they were to be his upon her death as part of what he was to receive under her will.
In October, 1949, about the time of the $12,000 gift to Gilbert, Russel was required to advance $3,500 to the business. He told his mother about it and she offered to advance a like amount to keep thеir positions “equal.” Russel suggested that she cancel $3,500 of the notes instead. She asked Gilbert to return the notes and he refused. Gilbert denies that this happened, but we do not credit his denial. Mrs. Stroming not only told Russel about it but she also told her sister, Mrs. Chesebrough, and her attorney, Mr. Kalfus. Testatrix was concerned about Gilbert‘s attitude because she fеared he might “make trouble” for Russel. On November 22, 1949, Mr. Kalfus paid her a social call when he had occasion to be in New Jersey on company business. She asked his advice. He assured her Gilbert could do nothing with the notes as they had not been endorsed and that the notes in any event would probably be paid off in her lifetime as business improved. She told him “* * * the business as it was on November 22nd was not the business it was when she drew her original will, that in the meantime she had given plenty of money, she told me, to Gilbert. She told me she had sold her house not long before,
Testatrix enjoined Russel and Russel‘s wife, Elinor, to whom she gave the executed codicil for safekeeping, Mr. Kalfus and her sister, Mrs. Chesebrough, to say nothing about the codicil. Gilbert never learned of its existence until after his mother‘s death when he and Russel went to the Passaic County Surrogate‘s office to probate thе will and Russel produced the codicil.
Gilbert has abandoned the contentions made below that his mother lacked testamentary capacity when the codicil was executed and that he affirmatively proved that Russel had actually exercised undue influence upon their mother to execute the codicil. His sole reliance on the appeal is upon the argument that the proofs established the existence of a confidential relation between Russel and his mother, throwing upon Russel the burden of proof to show the absence of such influence, which burden, Gilbert argues, Russel did not meet.
Normally the person asserting undue influence has the burden to prove clearly its existence, that is, in this case, convincingly to show that the testatrix’ “free agency” was destroyed by the exercise of improper influence constraining her to do what she otherwise would not have done in modifying the disposition made by her will. See In re Gotchel, 10 N.J. Super. 208 (App. Div. 1950); In re Neuman, 133 N.J. Eq. 532 (E. & A. 1943). The beneficiary, however, has the burden
There are innumerable cases involving confidential relationship, but the courts have not been able precisely to define what it is. See Foster v. Medela, 9 N.J. Super. 195 (App. Div. 1950); In re Fulper, 99 N.J. Eq. 293 (Prerog. 1926). A confidential relation is not confined to any specific association of the parties; “Its essentials are a reposed confidence and the dominant and controlling position of the beneficiary of the transaction.” Foster v. Medela, supra. “It is clear that the dominance must be of the mind, and the dependence must be upon the mind rather than upon the hands and feet of the donee.” Chandler v. Hardgrove, 124 N.J. Eq. 516 (Ch. 1938). It exists when the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed. It dоes not exist where the parties deal on terms of equality, although, as here, they are at the same time mother and son and business associates. See Croker v. Clegg, 123 N.J. Eq. 332 (E. & A. 1938).
The testatrix was undoubtedly very ill at the time the codicil was executed. She did not, however, know how ill she was, because on the advice of her physician her family faithfully kept the truth from her. They encouraged her in her belief that she had jaundice and that recovery would be slow but nevertheless certain. Her first operation was performed in March, 1948, and following her convalescence she returned to work, traveling from Passaic to New York and spending at least four full days each week at the offiсe until April, 1949. After her second operation she sold her home and lived with Gilbert and his wife about six weeks and then took her own apartment in Barry Gardens, Passaic, in early November, 1949, and lived there alone, attended only during the day by
Appellant makes a particular point that she was constantly taking drugs to relieve her pain, but his argument that she was in a state of continuing narcosis is not supported in the evidence. Her doctor prescribed sedatives to be taken at times of her choice and these, he sаid, when taken “kept her quiet, drowsy and sleeping part of the time,” but otherwise she was “wide awake” and “she certainly didn‘t lose her mental faculties but they certainly were lessened,” “she talked sensibly.” She managed her household affairs, paid her own bills, and manifested throughout a determination to maintain her own independence.
Gilbert sаw his mother almost daily both before and after the codicil was executed. There was no evidence of any attempt to exclude him from his mother‘s society. As late as Christmas Day Gilbert‘s wife, Irene, had a conversation with testatrix about the disposition of her property. Irene testified that testatrix told her again what she had previously said on occasions in October and November, that she meant Russel to have the business as his own, “he had worked hard for it,” and since Irene and Russel‘s wife, Elinor, “weren‘t exactly on friendly terms, she thought it would be better if she left Russel the business and my husband (Gilbert) the residue of her estate. She mentioned that to me several times.”
The essentials of a confidential relationship in the specific sense which makes applicable the doctrine relied on by appellant do not appear. Further, we are not persuaded that Russel was, as appellant suggests, the author of the plan to have his mother execute the codicil. Testatrix had made known her worry and distress because of Gilbert‘s refusal to
Nor do we find any indication of an evil plan or design in the fact that the codicil was witnessed by Russel‘s wife, Elinor, and twо other witnesses brought to the apartment by her. That was done on instructions of the testatrix given by telephone to Elinor. One of the witnesses, Mr. Lioy, had witnessed the original will, and the other, Mr. Dewey, who was Elinor‘s uncle, was a friend of long standing of the testatrix. There is no reason suggested by appellant to discredit their testimony of what occurred. Bоth said that upon their arrival and after exchanging greetings, testatrix asked them to excuse her while she read the codicil, which Elinor had brought. She called them back to her room after an interval and explained that she was executing a “codicil” or “addition” to her will, and thereupon she signed it and they and Elinor witnessed it. Testatrix foldеd it carefully, before they signed, in such manner that they could not read its contents, and after its execution she gave it to Elinor with the request that Elinor take care of it. They talked a while longer in a general vein and then left.
Everything surrounding the execution of the codicil and the subsequent secrecy about it on the part of testatrix and Russеl and his wife is entirely consistent with Mrs. Stroming‘s determination
The judgment allowed a counsel fee to the attorneys for the executor and directed that such fee, together with costs, be paid from the residuary estate. An allowance оf counsel fee to counsel for the appellant was denied. Gilbert challenges these aspects of the judgment and also the amount of the counsel fee allowed the attorneys for the executor as excessive. The applications were addressed to the trial court‘s discretion and we find no error in its exercise in the circumstances of this case.
Affirmed.