2 N.J. Eq. 8 | N.J. Super. Ct. App. Div. | 1838
The principles of law applicable to cases of this character have become well settled, and it is very important to adhere to those rules which long experience iras fully tested to be wise, in considering so important a question as that of the capacity of-a testator. The following general rules and principles (and which are all that are necessary to be ascertained 'for the purposes of this cause) may, 1 think, be considered as well settled. In fact, upon the hearing there seemed to be no difference among tire counsel as to the general principles of law, but the case turned mainly on the evidence. The first principle is, that the presumption of law is in favor of capacity, and that he who insists on tire contrary has tire burden of proof, except where insanity in the testator has been shown to exist at a time previous to the execution of the will; in that case the onus is shifted, and the party offering the will is bound to show that it was executed at a lucid interval. 2. That the time of the execution of the will is tire material period to which tire court must look, to ascertain the state of mind of the testator; that although it is competent evidence to show the testator’s mind at any time previous or subsequent to the execution of the will, yet such proof is always liable to be overcome if it be satisfactorily shown that the testator, at the time he executed the writing, had the possession of his faculties. 3. That of all the witnesses the testamentary witnesses, and their opinions, and tire facts they state as occurring at the time, are to be particularly regarded by the court. They -are placed around the testator for the very purpose of attesting, after his death, to the circumstances under which so solemn an instrument is executed. 4. That the opinions of
These principles will be found to be fully supported, and more .at large, in the following cases 4 Washington Cir. Ct. Reports, 262, 9; 11 Vesey, 11; 5 Cond. Eccles. Rep. 411; 1 Ibid, 47; 2 Ibid, 371; 1 Swinb. 122; 5 John. Ch. 158-9 ; 2 Phillips on Evidence, 191; 8 Mass. 371.
Holding myself bound by these rules, and which must approve themselves to the judgment of every man, I come to consider the main question in the cause : Was the testator, at the time-he executed the two codicils in question, of sound and disposing mind and memory ? , -
The first .witness whose evidence I shall consider, is Nicholas Williamson. He is a witness to both the codicils, and a neighbor of the testator. He says the testator executed the first and second codicils in his presence, and in the presence of the other subscribing witnesses,; that he frequently called to see the testator as a neighbor, and never perceived his mind failed him. He cannot
The next witness is Albert Saums; who states, that he saw ■testator execute the first codicil; that it was done in his presence, ¡and in that of the other subscribing witnesses, and at the time it purports to have been executed. The three witnesses were present at the time. He was asked by Mr. Williamson (the last witness) to witness the will. The testator said that one of his executors would not do business for him when he was alive. Witness was there about half an hour. Testator published and pronounced ¡the writing to be his codicil. Witness says he worked on the
Those are the only witnesses examined to the first codicil. They are both agreed in their testimony, and dear as to capacity. They state many facts, and give a rational account of the manner of its execution. The third witness, Barney Rynearson, was not produced as a witness, and by the papers no reason is assigned for his not being produced, though something was said on that subject by counsel on tire argument. It was insisted by the caveators that this codicil could not be proved without the production of all the witnesses. 1 cannot think it indispensable to produce all the witnesses, provided those produced make out a due and legal execution of the will. It would certainly have been open to the caveators to have produced him, could they have varied the case by so doing. It was also contended,, that the witnesses must attest the will at the request of the testator. This is certainly true; but it is not necessary to make out that request, that the testator should openly make the request.. Jf it. be done by his cheerful acquiescence when the witnesses are called in. for that purpose, as in this case, by the friend of the testator, who had first completed the writing, and was himself a witness, it is sufficient.
John Atkinson is a witness with Nicholas Williamson (whoso evidence has already been considered) to the second codicil. lie-
Cornelius M’Colm. This is the third witness to second codicil. This witness sustains the other witnesses as to the execution’of this'codicil. He was called there by Joseph, but Joseph did not remain in the room at the time of the execution.- He was there about half an hour. Pías known testator thirty years, having lived all that time about one and a half miles from him. Says he, has been afflicted at times, as long as he'has known him,-with the asthma. At intervals he would be quite smart. Witness considers testator, at the time of executing this codicil, ,as capable of making a will and disposing of his property as he ever was. The witness stated a number of families Joseph must have passed by in coming for the witness, living between his house and testator’s. ■
These are the subscribing witnesses to the second codicil with
In further support of the two codicils, Benjamin Young is produced as a witness. He says lie knew the testator eleven years; saw him and had frequent conversations with him the last four years of his life — sometimes once or twice a week. When he talked with him, he appeared to have his mind. This witness gives a particular account of borrowing money of testator, and all that passed in July, 1835. showing a complete understanding in him of the whole business, and of the different standing of hanks. Ho speaks of his sou renting a farm of testator, and many things that were said at the time, and the conversation about the terms that took place. This was in the spring of 1834. That testator gave directions how the farm should be worked. That he insisted on it as the bast plan in making fence, to have the bark on the rails. He relates a conversation between testator and Urias Stryker, his son-in-law, in which they disputed about the loan of money. He says his son-iu-law, on that occasion, called the testator, for not letting him have more money, a liar, and a damned liar. Ho speaks confidently of testator’s capacity, and says he never discovered that testator’s mind failed him. The witness states that the conversation took place about the money, when Urias Stryker abused testator, in presence of John Huff, John Miner, and others, in the evening, at the testator’s house. He further states, that he since spoke to Mr. Miner about that conversation, and lie remembered it. He further states, that he was at testator’s funeral, and that Mrs. Voorhies, the testator’s daughter, made an attempt to burn the will, and Urias Stryker said, burn it up; but it was finally rescued by Mrs. Henry Whitonack.
Nothing could be more confirmatory of the testator’s capacity than the whole of this witness’s testimony. It is very portico
Samuel B. Updyke, another witness in support of the will, speaks of being present at the loaning of fifteen hundred dollars by the testator, in which he spoke of the security he must have, preferring personal security to bonds and mortgages, as they were taxed; but as this witness states no time when this took place, much of its force is lost.
Samuel Saums, another witness, says he has known the testator for twenty years, and has lived within three-quarters of a mile from him. He occupied testator’s distillery. This witness relates some conversations of ordinary character that he had from
Abraham D. Baird testifies, that he has lived within a mile of testator for the last sixteen years, and during the last six years of his life had frequent conversations with him. Says testator was a singular sort of man. In 1832 he paid off a note to testator, who counted the money as accurately as any body. Has heard him speak of his family with tenderness. He considers testator competent to make a will, except under very severe spells of the asthma. This witness also speaks of the occurrence at the funeral, in the attempt to burn the will. He was present at the time the second codicil was written, and said it was not right, and he would not have it put to his will. He said he meant to have an additional codicil, and gave as a reason that if his sons-in-law spent money as they did in his life-time, what would they do when he was dead.
William Gray testifies, that in 1835 he lived in the house with testator, and had conversations with testator, though not a great deal. He lived there eight months, and saw him two or three times a doy. This witness never considered him a man without his reason.
George A. Vroom testifies, that lie saw testator four or five times after the first inquisition, and conversed with him each time. He drew the second codicil. On the 8th of August, 1835, he went to testator’s and got his instructions for drawing it. W hen he came in he asked testator if he knew him. He said he did not. When he mentioned his name, he asked him if he was a nephew of old colonel Vroom. Witness said he was his grand-sort. Testator said ho knew colonel Vroom very well. He then talked about altering Iris will. Said he wished to fix it so that his grand-children could have an equal share of their mothers’ property. Testator gave him instructions for drawing the codicil. Said lie wished his property out of the hands of his sons-in-law. Witness asked testator if he had any money out at Somerville.
This closes the testimony in support of the codicils, and a stronger case, standing by itself, I confess can hardly be made. All the testamentary witnesses (five in number) that have been examined, concurring in testator’s capacity at the time, sustained by so many others who were his neighbors, and relating facts showing a rational mind, and those witnesses unimpeached except as to Benjamin Young.
I now proceed to examine the evidence in opposition to the codicils. There has been a mass of evidence taken, of which I shall feel bound to notice here only so much as bears on the question of capacity.
The first witness is James I). Stryker. This gentleman drew the original will in 1830, and was named one of the executors. He is very clear as to testator’s capacity at that time. He uses this strong language: — “ I don’t think that I entertained the least doubt of his testamentary capacity at the time the will was executed.” He says he complained much about his children, which was a habit with him. The testator’s difficulty seemed to be to reconcile matters between his two sons. Sometime after writing the will, the witness went to take testator’s examination upon an application for a pension. Then his memory, he says, appeared to be entirely gone. He complained of his want of memory. He thinks then he was not capable of doing business
It is moot manifest, that this witness places himself mainly on want of memory in the testator: for by the very conversation he had with him, his complaining of his want of memory, all prove he had reason and understanding. In fact, the witness expressly says, the incapacity he speaks of arose from want of memory. This witness, it seems, at the very time of which he speaks, must have administered the oaths to him on his application for a pension. lie speaks of “ taking his examination.” "Would a witness of the high character of this gentleman, administer an oath toa man not understanding the subject? I have too high an opinion of his character to entertain any such belief. Besides, this very witness, on the first day of February, 1834, writes a letter to testator, which is made an exhibit in this cause, treating him as a man of understanding and capacity. "Would he write such a letter to one without his reason ? ] think not. In fact, the witness in his examination says, that when he went to testator’s to transact the business stated in that letter, the testator understood well enough what he was about.
Mrs. Catharine Tan Arsdale. This lady relates many strange occurrences during the period of Abraham’s (testator’s son’s) sickisess. That he would get up in the night, come to witness’s bed, sometimes two or three times of a night, and say the millennium had come. That the devil had him chained to the floor and was heaping hay on him. That the world was on fire. Seemed distressed and alarmed. He talked about witches. That Ann (his daughter-in-law) was a witch, and had come in through a small place in the window. That it rained fire and brimstone. He said there was a dreadful noise, and bid (rer listen : she did so, and there was no noise. She further states, that she was at testator’s after the will had been sent for from judge Stryker’s. Testator told her, Joseph had sent old Nicholas Williamson to judge
The. impression is very clear from the evidence of this witness, that at times the testator’s mind was out of order, wholly unfit to transact business. Nothing could more fully show it, than some of his conduct as related by this witness. His feeble health, old age, the dreadful disease with which he was afflicted, and his immediate affliction in the sickness and death of his son Abraham, with whom he lived, seemed to overpower his faculties, and for a time, it is most manifest, prostrated his reason. I cannot think this is shown by this witness to have been any thing more than temporary. It is quite obvious, that the opinions of this witness are quite too sanguine. She considers testator incompetent to make a will, or do any business, for ten years before the will of 1830, and yet that will has been sustained, acquiesced in by all parties, and upon clear testimony.
Mary Saums speaks of testator in 1834. Sometimes he appeared more rational than at others. He said it was no use for him to eat any more : that he should not live above a day or two. He after this ate very heartily. He stated as a reason why he should die. that he was very dry.
Joseph Whitenack says, Joseph told him he meant to get judge Stryker out of the will. Testator is represented as a man in the habit of running down his children, and complaining of their spending money. This witness is unwilling, clearly, to say whether in his opinion testator was competent in 1831, 1832 and 1833, to transact business. He says it’s a hard question. He should not hardly think him competent. He was forgetful; sometimes he appeared rational, and then he would forget. He places his objection on the ground of his forgetfulness, in his best, days he says testator had a curious way with him.
The whole of this witness’s testimony is rather equivocal as to his opinion about, testator’s capacity. He either really doubts himself, or is unwilling to be committed on the subject.
Henry Y. Staats says, he has lived since 1822 within a quarter of a mile of testator. The first he observed the oíd man’s mind to fail was in 1830, or the fall before. Prom 1829 to 1834 did not think him competent to make a will disposing of his extensive property. At Abraham’s sickness his mind was gone. He would come out of the house with a night-cap and apron on, and this was one reason he thought him incompetent. He would say his children cursed him. He thinks the old man knew1 what property he had, but did not know the value of it. He valued it too low.
This witness never had dealings with testator, nor was present when he dealt with others after 1830.
Henry Hurder had known testator forty years. Speaks of seeing him once, but at what time he does not say, at Kelly’s mills, when he said his family used him ill, and said he had ruined them all. Witness thought he had failed, but not altogether lost his reason. He appeared to have lost his resolution. The old man, on another occasion, appeared to be under a delusion,
This witness very clearly shows a wandering at times in testator’s mind. He mentions many facts. At Abraham’s death he says he did not appear to be himself.
Abraham J. Van Doren knew testator thirty-five years. In 1833, being the assessor, he called on testator for his property to assess, and he said he had none. His evidence is confined principally to one fact. I understand, from the whole case, that the old man had before this put out his property, and that his sons and sons-in-law occupied it. He meant they should pay the taxes. I cannot think this evidence bears on the case as much as counsel seemed to suppose. The testator evidently meant to get clear of the tax if he could.
William W. Hall speaks of setting up four or five nights with testator in 1832 or 1833. He talked about his property. That he wished each to have an equal share. Said he was not comfortable, and asked him if he could not get some aged woman to come and take care of him.
The whole conversation of this witness, as-related by him, instead of making against the testator’s capacity, in my opinion makes directly in its favor. It seems rational, and just such as a man circumstanced as testator was, would make.
John Huff knew testator for thirty years, and lived within, three-quarters of a mile from him. He complained of his children, that they did not do well. Said his property would be
It is very evident that this witness believed testator incompetent. to make a will; but, his reasons for that opinion are based on no very satisfactory foundation, so far as they are stated in Ids evidence.
Abraham Q,uick speaks of his being at testator’s in 1832, during Abraham’s sickness. He then complained that every thing was going wrong. Ho refers to some papers respecting a road, which he requested him to take charge of. This witness says, “ I don’t pretend to say that the old man was or was not capable of disposing of and managing his property.”
Jacob R. Schenck. This witness is much relied on by the caveators. He relates a conversation wish testator during Abraham’s sickness, from which he inferred his mind had failed him. He said that he was exhausted from old age. That he held but little conversation with him. for the íeason that he considered him incapable of holding one. Says testator talked much about his property being spent,, and complained of the extravagance of his son’s wife. He says he never saw him commit any ridiculous or extravagant action. His test, he says, of testator, was pretty much confined to one conversation: he made up his mind from what he then saw and heard.
This witness evidently made up his mind at once against testator's capacity, and after that gave himself no further thought
William T, Davis made shoes for the family. ' Latterly he observed testator was not as rational as formerly. From being a politician he turned to complaining of his family. .In 1833, the old man was quite childish by spells. , Talked strange. He relates a course of conversation at this time, clearly showing that his mitid wandered. 'He spoke of Prime as the proprietor of the farm. He fretted about every thing, going wrongcalled the stills balloons, and said they were building, castles in the air. At times, he says, he would talk quite rational. From 1832 till his death,, he would not think him capable of doing any business of importance. .He does not think that testator was crazy, but that his health and age- and family affairs had destroyed his mind. He knew his farms',' and where they lay, ,and complained that Joséph could not make a living off the farm he was on. He thinks he knew the nature- of the relationship between the different members of his family. He would answer questions sometimes correctly, and sometimes not.
No evidénee more clearly than this, shows that testator was very different in the state of .his mind at different times.
There are several other witnesses on the payt of the caveators, but they are by no means as- full or circumstantial as the above,, horado Í perceive that they at all vary the general complexion of the case. They establish, beyond all doubt, from the year 1830, periods when the testator’s' mind, from the tenor of his conversation, was wandering, and at other times rational.
After the most, careful examination of all the evidence on the part of. the caveators, I can come to no other conclusion, than that the testator was, during the last years of his life, from 1830, at times affected in- his mind; and' I am equally clear, from the same evidence, that during the' same time- he had Lucid intervals. Many.of the witnesses speak of his talking at times rationally, and for an hour together: that he was in ail especial manner
Taking this view of the evidence on the part of the caveators, in connexion with the very decided character of that on the part of the executors, I can bring my mind to no other conclusion, than that the weight of evidence is in favor of the capacity of the testator at the times he executed the first and second -codicils. No witness meets the direct proof of capacity at the time, except it be by general opinion.
Another ground was taken by the counsel for the caveators; that the testator made these codicils under an improper influence. I can see no just ground in the evidence, for this charge. It is lawful, and every way proper, for a son to advise with, and influence by lair argument and reason, a father. It, is natural that they should hove more or less influence with him. I cannot see any threats made by the sons towards the father, to induce the making of these codicils. Joseph and Abraham both went, at different times, after persons to write the papers, but I observe they did not even remain in the room at the times they were dictated or executed. If the testator had been unfit to dispose of his property, or do any business, as some of the witnesses suppose, how is it possible he could have dictated these wills ? And would these sons, if they had had the entire control of him, have left him at the very moment when it was most, essential for them to be present ? I should be very far from supposing the testator to be a man likely to be controlled. I should, from the evidence, rather suppose he was obstinate and self-willed. At all events, there is no sufficient evidence to sustain the ground of improper influence.
From looking into the will and codicils themselves, there seems to be no great motive for the sons to have used this influence to obtain the provisions made by the two codicils. The great ob
In the view which I have thus taken of this case, I am met ■by two inquisitions which have been taken in reference' to this very testator, on commissions issued out of the court of chancery, one bearing date the 30th day of May, 1834, and the other the 1st day of January, 1836. By the first, the testator was found at the time of taking the same, a lunatic enjoying lucid intervals, and that he had been so for thirty months prior thereto. By the second, the testator was found to be of unsound mind, and mentally incapable of managing his affairs, and that he had been of unsound mind since December, 1832. These inquisitions are not pretended to be conclusive on the case; but it is claimed for them, that they are entitled to all that respect which is due to the opinions, thus expressed, of so large a number of the most respectable citizens of the county of Somerset. This is perfectly correct. They are entitled to all the respect which any men acting on the subject before them, could possiby have. Some of the jurors I know, and I respect no men among us more. Their business and mine is very different. They have decided, from the general character of the testator, that he was incompetent to manage his business: it is my duty to decide whether, at the times he executed two instruments of writing, he was of sound mind. With the first inquisition I am fully agreed. That affirms that the testator had lucid intervals. In truth, it is not quite certain that the jurors on the last inquisition would have been willing, from a view of the whole evidence, to have said the testator had no lucid intervals. I should have very little doubt that these very jurors would, one and all, upon this evidence, agree with me, that this testator was, at times, disordered in his mind during the last years of his life, and at times perfectly rational
I therefore reverse the judgment of the orphan’s court of the county of Somerset, so far as it rejects the first and second codicils, and direct probate of the same to be made; and affirm it, so far as it directs the costs to be paid out of the testator’s estate.
Considering this a case of some doubt, and well worthy of receiving a full investigation and decision, I direct the costs of this appeal, with reasonable counsel fees on the hearing before this court, to be taxed by the clerk, to be paid out of the testator’s estate.