(Essex Co. Orphans' Court, Jan. 12, 1922).
_Probate of Will--Signing Will "for Sake of Peace"--Burden of Undue
Influence--Facts Considered_.
In the matter of the probate of a certain paper writing purporting to be
the last will and testament of Elizabeth Marion, deceased. On caveat.
Mr. Edwin B. Goodell and Mr. Philip Goodell for Proponent.
Mr. Paul M. Fischer for Caveator.
STICKEL, Jr., J: I was satisfied at the conclusion of the hearings in
this matter that the paper writing purporting to be the will of the
decedent had been properly executed, and I was also satisfied that she
was capable of making a will; in other words, that she had testamentary
capacity; but I had some doubt whether the decedent had not consented to
the making of the document in question and signed the same for the sake
of peace. Being thus in doubt I asked counsel to submit briefs on that
point alone, and counsel for the proponent have submitted a brief.
Counsel for the caveator has not submitted a brief, and, as I understand
it, does not intend to submit one.
The decedent was a woman between fifty and sixty years old. She had
several children, two or three sons and two daughters, as I recall it,
and one of the daughters, Mrs. Appleton, resided, together with her
three children, with the decedent, and had done so for sometime prior to
the execution of the document in question. The decedent and her husband
had lived apart for some years, and the whereabouts of the husband of
Mrs. Appleton were unknown, so that both the decedent and the daughter
daily went out to work.
The decedent had never made a will. She was not on unfriendly relations
with her children, although there is some suggestion that she disagreed
with all of them at different times. So far as the testimony shows, she
had not indicated definitely to anyone at any time prior to the making
of the document in question what she intended to do with her estate.
She executed the papers purporting to be her will between five and six
o'clock, P. M., on the 21st day of December, 1920. She died about one A.
M., the succeeding day. She received the last rites at eleven o'clock in
the morning of the day she made the will. At three o'clock in the
afternoon, two or three hours before she made her will, she inquired of
her daughter where certain insurance papers were, and, being told that
they were in possession of the daughter and that the insurance had been
paid, she seemed relieved and said she did not want any trouble over her
affairs. The daughter then asked her whether she had a will and received
a reply in the negative. The daughter, Mrs. Appleton, followed this with
an inquiry whether the decedent wanted to have things fixed up, and the
decedent did not answer her. The daughter, nevertheless, thinking, as
she said, that the employer and friend of her mother, Mrs. Hill, had a
will, called up Mrs. Hill and, apparently, either told Mrs. Hill that
the decedent wanted a lawyer to make a will, or that she had no will and
was dying, for, in any event, Mrs. Hill, shortly after the telephone
call, came to the decedent's house with Mr. Edwin B. Goodell, a lawyer
of Montclair, to prepare a will for the decedent. The decedent was not
asked whether she wanted to make a will prior to this time, and did not
in anyway, so far as the testimony shows, request the attendance of Mr.
Goodell or anyone else to make a will. When Mr. Goodell acquainted the
decedent with the reason for his attendance, she said she did not want
to make a will "tonight," or words to that effect; indicating, as Mr.
Goodell put it, that she would prefer not to make a will that night.
At that time there were in the room with the decedent, who was in bed,
very sick, a Mrs. Fischer, Mrs. Wickham, who was holding her up or
propping her up in bed, Mrs. Appleton, the daughter, Mrs. Hill and Mr.
Goodell. In an adjoining room was a son of the decedent with his child
or children.
Someone of the persons in the room--the testimony does not agree as to
who it was, and it may be that it was more than one--urged and
encouraged the decedent to make a will after her remark that she did not
want to make one that night. Mr. Goodell says he did not, although he
felt that the decedent wanted to make a will, and that if she did not
make it that night she would never make it, because he thought she would
die before morning. In any event, a short time after she said that she
did not want to make a will that night, Mr. Goodell inquired of her what
she wanted to do with her property, and someone in the room, he thinks
it was Mrs. Wickham--but Mrs. Wickham says it was not, although all seem
to agree that it was not Mrs. Appleton--suggested that she wanted to
leave her house, the one in which she was then living with her daughter
and grandchildren, to the three grandchildren. The decedent assented to
this. But Mr. Goodell took the precaution to ask her directly whether
she wanted her house to go that way and reminded her it would tie up the
sale of the property, because the children were minors. The decedent, in
replying to this, said that was what she wanted to do; she wanted it so
that it could not be "spent." Mrs. Hill and Mr. Goodell agree as to this
testimony, and Mrs. Wickham, the only other person in the room, who was
interrogated on this point, said that she had no recollection one way or
the other. Then Mr. Goodell inquired of the decedent what she wanted to
do with the residue of her estate, and again someone volunteered that
she wanted it to go equally among her children. Whereupon Mr. Goodell,
having interrogated the decedent, she replied that she wanted the
residue to go in that way.
Mr. Goodell's recollection is that the decedent nominated the executor,
herself, although he said it is possible that someone else in the room
suggested it and that the decedent assented thereto.
Thereupon, the will having been read, paragraph by paragraph, the
decedent and the witnesses duly executed it.
The burden of proving undue influence, of course, rests upon the person
or persons charging undue influence, and, as was said in the case of
Schuchhart v. Schuchhart, in the fourth syllabi, 62 Eq. 710, 49 Atl.
485: "When undue influence is claimed to be established by inference
from certain facts proved, and, upon all the facts proved, an equally
justifiable inference may be drawn that the will executed was what
testator would have made under the circumstances, the burden on
contestants is not supported." See also In re Richter's Will, 89 N. J.
Eq. 162.
The inference which the contestants would have the Court draw from the
facts is that the decedent intended to die intestate, so that her
property would go to her children equally, and that her objection to
making a will that night indicated her desire to die intestate, for she
knew that her end was near and believed that if the making of the will
were put off until the next day she would be dead and dead intestate.
This is an inference which may be drawn from the facts, but an equally
justifiable inference is that the decedent had the all-too-common
disinclination to draw a will; that she sought to shirk the
responsibility of deciding what disposition to make of her property, to
avoid making and executing a will; that when brought face to face with
her responsibility she yielded to the advice and suggestions of her
friends, and, although originally preferring not to make the will,
determined to discharge her responsibility and make the will. In no
other way can the statement of the decedent that she wanted to tie up
the house, so the children could not spend it, be reconciled. That
remark indicated that the decedent had aroused herself to the task of
making her will, had overcome her disinclination, determined to perform
the duty of making a will and had considered the question of the
disposition of her property.
It is true that others made the suggestion as to what the decedent
wanted to do with the property, and I am inclined to think that everyone
in the room knew from talking with the decedent that she wanted to leave
her property as she actually did leave it, although there is no direct
testimony on this point, but the remark about preventing the children
from spending the property was the product of the decedent's own mind;
she initiated the remark, and thereby revealed her state of mind, both
as to the matter of making a will at all and as to how she wanted her
property to go. And it is not strange that she wanted the property to go
in this way, for she knew it was her grandchildren's home (and we all
know the wonderful love that grandparents have for grandchildren); she
knew that they could not depend upon a father for support and upbringing
and that their mother was the breadearner. Her own children were grown
up, married, most of them, and so far as the record shows not to need of
assistance. That the devise of the house to the grandchildren is a
natural, normal one, is emphasized by her disposition of the residue of
her estate, for, having taken care of her grandchildren, assured them of
a home during their minority at least, she proceeded to give to her
children everything else that she had; and I am inclined to think she
believed that the residue of the estate would be much larger than it
actually is; that the return she would get from the estate of Timothy
Arnold would be larger than it actually was.
It is undoubtedly true that, except for the presence of the lawyer,
which was brought about by Mrs. Hill and Mrs. Appleton, and except for
the advice and encouragement to make a will and at once by those in the
room to the decedent, she would have died without a will. But, instead
of the presence of the lawyer and the said advice and encouragement
dominating the deceased and destroying her free agency, it seems only to
have served to arouse in her the necessity for making a will, if she
would protect her grandchildren, to re-awaken and revive her apparently
dormant and pre-existing desire to provide a home for her grandchildren,
to do this and to give her the opportunity to carry out such desire or
intention, which opportunity she seized and made the best of, for how
else can her response to Mr. Goodell, that she wanted to tie up the
house so that it could not be "spent," "That is what I want to do," be
accounted for? Certainly acts which produce such a result cannot be said
to be acts of undue influence. Stewart v. Jordon, 50 N. J. Eq. 733-741.
And it is well settled that it is not the exercise of undue influence to
advise, encourage, or urge the making of a will. In re Barber's Will, 49
Atl. 826; In the matter of Seagrist, 1 N. Y. App. Div. 615; 37 N. Y.
Supp. 496; Aff. 153 N. Y. 682; 43 N. E. 1107.
Mr. Goodell, who drew the will, is a reputable and careful lawyer, and I
feel sure that he would not have prepared this will or permitted the
decedent to execute it except he felt it represented her real wishes.
Nor do I think he would have permitted her to have executed this
document if he for one moment conceived that she was making it for the
sake of peace or to be rid of her visitors. That fact must also be
considered in determining the question in hand.
It seems to me, therefore, that the more probable inference to be drawn
from the facts in this case is one which requires the upholding of the
document as the will of the decedent and that the contestants have not
sustained the burden of proving undue influence.
The paper writing purporting to be the will of Elizabeth Marion is
consequently admitted to probate.