author: Pitney, Ordinary.

text:
    In the matter of the probate of the will of Esther J. Cooper, deceased.
    [Decided January 2d, 1909.]
    1. An attorney, who had been the legal adviser of testatrix for some years, prepared her will and codicil, whereby he was appointed executor and received a specific legacj-, and a large share of the estate as residuary legatee. His son also was given a specific legacy by the will. The attorney also procured the witnesses to the will and codicil, and both were executed under his personal supervision.—Held, that there was a presumption of undue influence on his part, and the burden of proof that the will was the free act of testatrix was on him.
    2. In transactions inter vivos the presumption of undue influence is raised solely because of the dependent confidential relation existing ’between donor and donee; and the donee, to establish the gift, must show ■that independent advice was relied on by the donor.

      3. Where, in a testamentary transaction, the facts show the existence of a confidential relation between testatrix and a beneficiary, slight circumstances in addition to such relation will throw on the beneficiary the burden of showing that testatrix’s mind was not unduly influenced.
    4. In proceedings to probate a will and codicil, contested on the ground of undue influence, letters written by testatrix after the making of the will, and before and after the making of the codicil, are admissible as bearing on the mental condition of testatrix, but are not competent evidence of the facts stated in the letters.
    5. In proceedings to probate a will, contested on the ground of undue influence, evidence of the physical and mental condition of testatrix, of the reasonableness of the gifts made by the will as compared with a prior will, of her knowledge and appreciation of the testamentary disposition made, held to show absence of undue influence by the principal beneficiary occupying the confidential relation of attorney.
    0. In a proper case, part of a will may be set aside because of undue influence.
    7. Where it is impossible to determine to what extent specific legacies have been tainted by undue influence, the whole will, if at all, must be set aside on the ground of undue influence.
    8. The fact that testatrix was in possession of her will and codicil for a year and a half with opportunity during that time to cancel the same, is a strong indication that she was aware of their contents.
    9. Where a testatrix, after the execution of a will, drawn according to instructions given one who conveyed them to the draftsman, has the executed will in her possession a sufficient length of time, and opportunity and ability to acquaint herself with its contents, and she preserves it, it will be conclusively presumed that the will was prepared according to her instructions, especially when it followed her pronounced intentions, and provided for no unnatural disposition of her estate.
    10. The fact that testatrix executed a codicil, which in express terms confirms the will, but which makes changes therein, tends to prove that testatrix was acquainted with the will.
    11. Declarations of testatrix that she had made a will and remembered certain persons, and that she had thought a good deal about making the will, and that some people would not be satisfied, were admissible to show that she was aware of the contents of the will, contested on the ground of undue influence.
    12. Where the evidence showed that testatrix had fixed testamentary ideas as to the disposition of her estate, and gave instructions to the attorney who drew the will, and that he followed the instructions, there was evidence that she exercised independent judgment essential to sustain the will containing a gift to the attorney.
    13. The rule requiring- a person disposing of his property by will to exercise a judgment independent of the confidence induced by his confidential relationship with his legal adviser only requires that testator exercise his independent judgment, and does not require proof of proper independent advice.

      14. The testimony of a legatee, charged with having obtained the will by undue influence, cannot be arbitrarily disregarded, where such testimony is not contradicted by other credible testimony or discredited by its improbability.
    15. Every person competent to make a will has a right to the aid of any person he may think proper to select, when he desires to put his testamentary wishes in legal form; and, if he exercises this right without improper influence, though he selects the person he intends to make his beneficiary, that fact, in the absence of evidence showing an abuse of confidence, is no reason why probate should-be denied to the will.
    16. The contention that an attorney who sustained toward one the confidential relation of legal adviser should refuse to accept his testamentary bounty is one of professional ethics, and is not involved in proceedings to probate the will, making such attorney the principal beneficiary and executor.
    On appeal from a decree of the Morris county orphans court, admitting to probate certain paper-writings purporting to be the last will and testament of Esther J. Cooper, deceased.
    The following is the opinion deTvered by Judge Mills in the orphans court:
    Mills, J.
    This is a proceeding brought to test the validity of certain paper-writings purporting to be the last will and testament of Esther J. Cooper.
    The will is dated May 26th, 1900.
    The codicil accompanying the same is dated March 29th, 1904. A copy of each has been annexed to these conclusions.
    Testatrix was eighty-six years of age at the time of her death, which occurred on October 29th, 1906.
    She was the widow of James J. Cooper, who died about thirty years ago.
    The validity of the will has been challenged by Carrie L. G. Harrison, the caveator, who is a grandniece of testatrix. Ten other persons, grandnieces and grandnephews, have joined with her in protesting against the probate of the will. The attack is made on the ground that the will with its codicil is the product of undue influence exerted upon the testatrix by Charles F. Axtell, an attorney and counselor at law of this state.

      Both the will and codicil appear to have been properly executed.
    The attestation clauses are in proper form and all the formalities were duly observed at the time each paper was executed.
    It is not contended that the testatrix was mentally incapable of making a will, but that, owing to her advanced age, her mind was unable to resist the improper influence exerted by her friend and attorney, Charles F. Axtell.
    She was about eighty years of age in 1900.
    Axtell had been her sole legal adviser since January, 1898, and had acted for her in some matters before that time, beginning at least as early as 1888. He had known her well for many years, and intimately since 1883.
    She appears to have had great confidence in his judgment and integrity.
    He claims that, acting under instructions from her, he prepared the rough draft of the will executed in 1900 and that of the codicil executed in 1904.
    Each draft was copied bjr hand and prepared for execution by a young man named Griffith, who was employed by Axtell in a clerical capacity in 1900 and specially employed for the express purpose of copying the draft of the codicil in 1904.
    Under the will of 1900 Axtell receives a specific legacy of $500, and is the sole beneficiary under the clause disposing of the entire residue of the estate of testatrix receiving thereunder a large part of the whole estate, nearly two-thirds thereof.
    His son, Roland P., receives a legacy of $250.
    In addition, Axtell is the sole executor named in the will, Joseph H. Van Doren having been added as an executor under the codicil of 1904.
    Axtell also procured the witnesses to both the will and codicil and each document was executed under his personal advice and supervision.
    Under this statement of facts it is clear that the legal presumption of undue influence has been raised and that the burden of proving that the will is the spontaneous act of the decedent was thrown upon Axtell, her attorney and confidential .adviser.
    In so holding, I do not contend that the presumption of undue influence lias been raised solely because of the confidential relation existing between Mrs. Cooper and her legal adviser.
    I fully realize that the strict rules that control in the case of transactions inter vivos are not applied to those of a testamentary character.
    In transactions inter vivos the law is so jealous of the rights of the donor that the presumption of undue influence is at once raised solely because of the dependent confidential relation, and when once raised is very difficult to overcome, because of the rule (never applicable in testamentar}1- eases) requiring that independent advice must be shown.
    For example, had Mrs. Cooper made Axtell her beneficiary by voluntary irrevocable deed of conveyance instead of by will, the presumption of undue influence would have been at once raised solely because of the confidential relation existing between them and the burden would at once have been placed upon Axtell of overcoming that presumption by showing that she had the benefit of “proper independent advice.” See Post v. Hagan ((Tourt of Errors and Appeals, March 4th, 1907), 71 N. J. Eq. (1 Buck.) 284; Slack v. Bees, 86 N. J. Eq. (21 Dick.) 447.

    In a testamentary transaction, however, like the one now before me the facts showing the confidential relationship must be accompanied by other circumstances in order to raise the presumption of undue influence.
    In Sparks Case, 68 N. J. Eq. (18 Dick.) 242, it was held by the prerogative court that “the confidential relation existing between a testator and his spiritual as well as secular adviser, who was made residuary legatee, is not alone sufficient to raise a presumption of undue influence; the rule which raises such a presumption in transactions inter vivos does not apply to testamentary gifts.

    “Slight circumstances in addition to such relation will throw upon the beneficiary the burden of showing that the testator’s mind was not unduly influenced.” See, also, Wheeler v. Whipple, !f4 N. J. Eq. (17 Slew.) 141, 145.

    The “slight circumstances in addition” called for under the Sparks Case, are sufficiently shown in Axtell’s action in attending to the preparation of the will and codicil, in drafting the resicluary clause of the will in Ms own favor and in selecting the witnesses.
    In Farnum v. Boyd, 56 N. J. Eq. (11 Dick.) 766, it was held that “a lawyer, employed by a testatrix with unsettled testamentary notions as to the disposition of her entire estate, to draw her will, can participate in her bounty, in a material degree, only after a very clear exhibition that Ms conduct was fair and unobjectionable, and that the testatrix exercised, with relation to her bounty to Mm, a judgment independent of the confidence induced by his confidential relationship to her.”
    There is no question but that under the law as applied to the facts in this ease, Axtell must overcome the presumption of undue influence before he can benefit by the will of testatrix.
    The circumstances surrounding the execution of her will and codicil have made necessary the rigid and exhaustive investigation which has been made in this case.
    To relieve himself of the burden of showing that the will in question with its accompanying codicil resulted from the free and unconstrained action of the testatrix without any moral or physical coercion on his part, Axtell has placed a large number of witnesses on the stand and has introduced considerable documentary evidence.
    It is for this court to determine whether he has sustained the burden which has been thrust upon Mm.
    In my opinion he has done so. The reason for my conclusions I will give at length, but before discussing them I will briefly consider the law controlling the admission in evidence of statements and declarations made by the decedent.
    Great light has been thrown upon the mental attitude of testatrix toward her surroundings by the witnesses, who have testified to many declarations made by her with regard to her relatives and friends.
    A large number of letters written by her have also been introduced in evidence. They were almost all written after the making of the will and both before and after the making of the codicil.
    Counsel for the contestants strongly opposed the introduction of this kind of evidence.

      Its competency cannot be questioned.
    In Marx v. McGlynn, 88 N. Y. 374, Justice Earl held that diaries kept and letters written by a testator, either before or after the execution of the will, while proper evidence, as bearing upon the mental capacity and the condition of mind of the testator, with reference to the object of his bounty, are not competent evidence of the facts stated in them, or to prove fraud or undue influence.
    The court said: “They are in the nature of hearsay evidence, declarations of the deceased, which are incompetent for the purpose of defeating or destroying the will or any of its provisions. They are competent only as bearing upon the condition of the mind of the testator at the time of the execution of the will. Such memoranda or declarations, luhether made before or after the execution of the will, are competent as bearing upon the testator’s mental capacity.
    “They are also competent as bearing upon the condition of the testator’s mind with reference to the objects of his bounty.

    “They may be given in evidence for the purpose of showing his relations to the people around him, and to the persons named in the will as beneficiaries. They are, however, entitled to no weight in proving external acts, either of fraud or undue influence.”
    This interpretation of the law is viewed with approval in Hob-son v. Moorman, 3 L. It. A. {N. S.) 719; 90 S. W. Rep. 152 (:Tennessee Supreme Court, December, 1905), a case in which the question of the effect of the statements and declarations made by a testator is exhaustively treated. This construction is also in line with the decisions of this state. See Rusling v. Rusling, 36 N. J. Eq. {9 Slew.) 608, 607, 608; Pemberton’s Case, 40 N. J. Eq. {13 Stew.) 520, c&c.

    Before reaching my conclusions in this case I carefully considered
    I. The character and quality of the mind of testatrix, her physical condition and habits of life.
    II. The nature of her will, with special regard as to whether it is reasonable and natural in its treatment of the natural objects of her bounty and other relatives and friends and her mental attitude toward them.

      III. The amount of her property and her realization of its value.
    IV. Her knowledge and appreciation of the testamentaiy disposition she had made of her estate.

      Y. The question whether, in view of all the evidence, her principal beneficiary has succeeded in sustaining the burden placed upon him by his indiscreet conduct.
    I.
    Mrs. Cooper, considering her advanced age at the time she made her will and the subsequent codicil, was a woman of unusual mental plrysical vigor.
    She kept an active supervision over her affairs, had an intimate knowledge of her investments and saw that her interest was promptly collected. She was of a genial and kindly disposition and appreciated the little attentions shown to her by others. She generally had a relative staying with her, but kept control of her domestic establishment.
    There is not the slightest suspicion that she was mentally weak or unsound.
    Dr. A. A. Lewis, who had been her family physician for at least twenty years, testifies to her good mental condition during the time Ire' had known her.
    He says her mind remained clear “up to the last forty-eight hours” of her life.
    He also shows that she liked conversation and company.
    In speaking of his business 'relations with her he says “she was always very precise with me.”
    From all the evidence it is clear that she was a self-reliant woman, with considerable shrewdness and decision of character.
    She enjoyed traveling. During the w,inter of 1901 and 1902 she spent several months at West Palm Beach, Florida. Several times after the execution of the will of 1900 she visited her so-called adopted daughter, Mrs. Marks, at her home in New York State.
    She showed in many ways that life was very pleasant notwithstanding the burden of years.

      II.
    I will now review the evidence to determine whether the will and codicil in question are unnatural or unjust, and in that connection will first compare the treatment which the several beneficiaries received under the canceled will (which is said to have been executed by her on December 19th, 1888, and which has been offered in evidence) with that bestowed upon them by the will of May 26th, 1900, .and its codicil.
    (1) Mrs. Marks.
    By the earlier will Mrs. Marks (then unmarried and styled “my adopted daughter, Myra Kenward Cooper”) received $1,000 in cash and the household goods and furniture absolutely.
    She was also given the use of the homestead for life or “until she marries,” together with the use of the residuary estate for life “or until she marries!’

    Under the new will and codicil Mrs. Marks receives $1,000 in cash, but not the furniture and household goods. Mrs. Marks’s daughter, born since 1888, receives $500 under the codicil. Aside from the loss of the furniture and household goods Mrs. Marks receives the same amounts as she would have received under the will of 1888 had it now been admitted to probate, while her daughter also now receives the sum of $500.
    Myra married Rufus B. Marks in 1889.
    (2) Mrs. Lydia Wolfe.
    Under the earlier will she was left $1,000. Under the later will and codicil she will receive exactly the same amount, $1,000.
    (3) Mrs: Carrie Pruden, wife of Henry H. Pruden.
    The bequest to her remains identical with that in the earlier will.
    (1) The six children of Henry II. Pruden receive under the will of 1900 the same identical amounts left them under the will of 1888.
    (5) Clarence C. Pruden now receives the same amount left him under the will of 1888.
    In brief, every beneficiary under the will of 1888 receives under the will and codicil now before the court exactly the same amount of money as he or she would have received if the will of 1888 had now been admitted to probate, with the single exception of Henry H. Pruden, the half-brother of testatrix.
    Of the eleven beneficiaries under the will of 1888 he is the only one to suffer from the new will.
    Had the will of 1888 been probated at this time Henry H. Pruden would not only have been the executor, but he would, owing to the marriage of Myra, have received more than Charles E. Axtell can now receive under the will and codicil in question, because of the legacies now given to Edwin Pruden and Esther L. Marks.
    Under the will and codicil now offered for probate Henry H. Pruden receives the vacant lot of twenty-five acres, situated near Morristown, which is non-productive and of uncertain value, and which, I should judge from the evidence, is worth certainly under $5,000.
    It is well to note in this connection, however, that had Myra never married, Henry H. Pruden would not, aside from the executorship, have received any benefit under the will of 1888 until Myra’s death, showing that in 1888 Mrs. Cooper did not think it necessary to make special provision for her half-brother and was not particularly solicitous about his welfare.
    A comparison of the wills of 1888 and 1900, taken in connection with the testimony of the several witnesses and all the other evidence, shows pretty conclusively that Mrs. Marks, Mrs. Lydia Wolfe, Clarence Pruden, Henry H. Pruden and his six children were the persons of whom testatrix was especially fond. They were the persons with whom she was thrown in contact and with whom she was in constant intercourse.
    Mrs. Marks, to be sure, was not a relative nor even a legally-adopted daughter. She is, however, called her adopted daughter in both wills and in the codicil. She lived with Mrs. Cooper from the age of five years until she was married, at the age of twenty-one, and was apparently nearer and dearer to her than anyone else.
    Without any child of her own the affections of testatrix were centered upon Mrs. Marks and those of her relatives who lived near her, and who had in many ways become endeared to her.
    These nine relatives (Lydia Wolfe, Clarence Pruden, Henry H. Pruden and his children), together with Mrs. Marks and the wife of Henry H. Pruden, were the only persons remembered in the will of 1888, and are also the only persons mentioned in the will of 1900 and the codicil excepting Stephen H. Pruden, Edwin Pruden and the daughter of Mrs. Marks and the Axtells.
    I have attached to these conclusions a memorandum showing the several persons named as relatives of Mrs. Cooper in the petition for probate.
    It appears that the great majority of these relatives did not live in Morristown.
    The testimony shows that testatrix had seen some of them at rare intervals and that many of them she had never seen at all. It is in evidence that she once told Lydia Pruden that “she had not remembered the Guerins in her will,” that “they were amply provided for without any of her money.”
    I am convinced that the persons of whom she was especially fond, and who might properly be called the natural objects of her bounty, were Mrs. Marks and the nine relatives whom I have enumerated, namely, Mrs. Wolfe, Clarence Pruden, Henry II. Pruden and his six children, Lydia, Minnie, David, Harry L., Emma and Gertrude. ■
    Curiously enough not a single one of these persons is objecting to the probate of the will and codicil now in question.
    How would these persons in whom Mrs. Cooper was especially interested be benefited if the will is set aside?
    If testatrix can be held to have died intestate Mrs. Marks and her daughter would receive nothing.
    Henry II. Pruden being of the half-blood would have no interest in any of the real estate, and his share of the personal estate would probably prove to be no more valuable, if as valuable, as the real estate devised to him in the will now presented for probate.
    The six children of Henry H. Pruden who receive $3,600 in all, under will of 1900, would receive absolutely nothing, as their father is still living.
    Mrs. Wolfe might receive a trifle more, for while she would receive less cash she would have a small interest in the real estate which might a little more than offset the loss in cash.

      Clarence Pruden would, unquestionably, be benefited if "the will should be broken, but he is the only one of those who may be considered the natural objects of the bounty of testatrix who would be substantially benefited.
    With regard to the suggestion of counsel that this court has power to set aside that part of the will under which the Axtells benefit and should exercise that power, I will state that, aside from the fact that I do not believe that any fraud or undue influence was exercised as to any part of the will or codicil, I feel certain that in no view of this case would it be proper to permit the partial intestacy that would result from such action.
    It would be impossible to determine to what extent the specific legacies, and in particular the devise to Henry II. Pruden, had been tainted and improperly reduced.
    In GuUiber Ison’s Appeal, 97 Pa. St. 163 (at p. 173), Chief - Justice Sharswood, speaking for the supreme court of Pennsylvania, says:
    “There may be a case where the alleged undue influence is applicable only to a single independent provision in a will, and that provision may fail, leaving the .rest of the will to stand. It is certainly not this case, where the clause objected to is a residue, and that residue made up or largely increased by alterations made, as a jury may conclude, under the same influence for that purpose.”
    . I do not doubt but that in a proper case part of a will can be set aside because of undne influence. This has been frequently held in the English and American courts. See W Am. & Eng. Encycl. L. (8d e-d.) 1Ü8.

    So far as I am aware, the question has never been passed upon in this state. See, however, the comment made in Harris v. Vanderveer, 81. N. J. Eq. (<6 G. E. Gr.) SOI, S7S.

    If Mrs. Cooper’s will had been tainted by fraud or undue influence, all of it would have to be set aside.
    To my mind, a division of the estate of testatrix under the statutes of descent and distribution, would be more unnatural and inequitable than if made pursuant to the will and codicil in question.
    The removal from the operation of the bounty of testatrix of those in whom she was particularly interested, on the ground that her provisions for them had not been sufficiently ample would, in effect, give the bulk of her property to relatives for whom she did not care, in whom she took no interest, and many of whom she had never seen, and would work great injustice.
    It is true that by so cloing we would defeat her provisions for Axtell and his son. But is there anything unnatural in those provisions?
    Mrs. Cooper was a very warm friend of Axtell and his wife.
    She had become acquainted with Mrs. Axtell in 1883, and had known her husband much longer.
    In more thkn twenty-five of the numerous letters from Mrs. Cooper to Axtell she refers in affectionate terms to Mrs. Axtell.
    In some of these letters she expresses her appreciation of little acts of kindness extended to her by Mrs. Axtell.
    It appears from the evidence of Dr. Lewis that Mrs. Cooper was very fond of Mrs. Axtell, and displayed great sympathy at the time Mrs. Axtell was threatened with blindness.
    Minnie Pruden testifies 'that testatrix would frequently go and see Mrs. Axtell.
    The letters also show the high esteem in which Mr. Axtell was held.
    In one of them she addresses him as “my very dearest friend.”
    They also show that her lonely life was brightened through her association with the Axtell family.
    Considering the relations of Mrs. Cooper with the Axtells the provision for the head of that family can hardly be called unnatural; however, we may question the wisdom of its bountiful character.
    It is not unnatural that she should have wished to substantially remember a dear friend with whom apparently her business relations had always been satisfactory and to whose wife and family she had become greatly attached by pleasant, social intercourse extending over many 3'-ears.
    The only reason that this court has-considered at length the question as to whether the will is natural or unnatural is for the purpose of ascertaining whether its provisions sprang from the natural impulse of the testatrix or resulted from coercion.

      Except from that standpoint this court is not concerned in its reasonableness or justice, as anyone having mental capacity and acting freely on his own initiative and without coercion has a right to make an unjust will.
    The possibility of establishing the will of 1888 on the ground that it was canceled through fraud or undue influence will not be considered by me, because I feel certain it was not so canceled, and further, because the question as to its cancellation is one in which the parties to this proceeding are not interested.
    Not one of the eleven contestants and neither of the two proponents would be in any way benefited by its probate.
    III.
    Mrs. Cooper was possessed of a sufficient income and estate to support her in comfort.
    She was a woman of simple tastes, very economical in her mode of life and very thrifty.
    She had the life use of the income from the estate of her husband who died in about the year 1877.
    The evidence shows that estate to have been worth in the neighborhood of $29,000.
    After the death of J. C. Youngblood in 1897 some partial settlement and distribution of the James J. Cooper estate was made so that its amount was reduced to about $18,000.
    It does not appear what amount of cash Mrs. Cooper received through the settlement and distribution.
    Mrs. Cooper at the time of her death had personal property, consisting principally of bonds and mortgages, which has since been inventoried at $21,692.39.
    This amount included the value of her furniture and household goods appraised at $186.23.
    The inventoried value of her personal estate will be considerably decreased by the expenses of administration and other charges.
    No evidence has been presented to me, in this proceeding, showing what the indebtedness and other charges against her estate would amount to.

      ■ She owned a house and lot on High street, Morristown, worth $5,500 or $6,000, and a vacant piece of land consisting of about twenty-five acres on the north side of the Baskingridge road, near Morristown.
    What this twenty-five-acre piece is worth does not appear.
    Testatrix valued it at $5,000, but that valuation, in view of other evidence, is probably somewhat excessive.
    Testatrix kept close track of her investments.
    In her letter to Rufus B. Marks, dated May 28th, 1900, she enclosed a statement showing that she then thought she was worth $13,800 aside from her real estate.
    Axtell testifies that two or three years ago testatrix gave a thousand-dollar bond to her niece, Lydia Pruden.
    This would seem to have been a proper recognition of the devoted service rendered to her by a favorite niece who resided with her a good many years and whose fixed compensation was extremely meagre.
    What appears to have been an advantageous conversion of some of her real estate into personalty was made in 1902 when she sold her land on the south side of the Baskingridge road to her nephew, Harry Pruden, for $5,000, subject to a mortgage of $3,360. •
    In this waj' she apparently obtained $1,640 cash available for investment, got rid of a mortgage liability, and retained the tract to the north of the Baskingridge road (devised to Henry H. Pruden) free and clear of all mortgage encumbrance.
    Axtell states that at one time testatrix told him she was saving from $800 to $1,000 a year, but it does not appear over what period she believed she was saving in that manner.
    She apparently thought that she had increased her estate through her habits of economy and thrift.
    I am unable to determine from the evidence just what Mrs. Cooper was worth in 1900 or prior to that time.
    Her written and oral statements in that regard are only competent as they tend to show us her point of view.
    In that respect they are extremely valuable, but they cannot, as above shown, be received as substantive evidence of the facts stated.

      Enough has been developed in this case to show that testatrix was a shrewd, capable manager, and though very careful of her expenditures was exact and just in her dealings with others.
    If she believed that her estate was increased through her own care and economical management she may for that reason have felt that the increase was peculiarly her own, and that no one of her relatives could complain if she acted in accordance with her own wishes and judgment and made Axtell a large beneficiary under her will.
    She may also have looked upon that increase as a fund upon which she could make heavy drafts, in case she was obliged to live the life of an invalid for any considerable period before her death.
    There is no doubt in my mind but that she was fully acquainted with the character of her property and realized its value.
    IV.
    I will next consider whether Mrs. Cooper fully understood the nature of her will.
    The contention that she did not realize the effect of the residuary clause and that she really believed that her brother Henry was the principal recipient of her bounty strikes me as being absolutely without force.
    It is claimed that the specific legacy of $500 to Axtell tends to prove that Mrs. Cooper did not appreciate the value of her estate and thought the residue after the payment of the specific legacies would be small.
    As a matter of fact, two days after the execution of the will, in her letter to Mr. Marks, above referred to, she enclosed a list of her securities showing that she believed that she had a considerable estate.
    That letter certainly shows a secretive mind, and it may be that she did not object to .having Marks believe that his wife would receive some considerable portion.of her estate.
    While the letter shows a lack of frankness it does not show that she was ignorant of what she had done with her estate.
    I feel certain that she knew the contents of her will and codicil and the effect of their provisions.

      Axtell says tbe will was read over'to her in. her presence at the time of its execution.
    Witte, one of the attesting witnesses to the will, says, “she said she had read over the will and knew what was in it.”
    So far as the codicil is concerned, Axtell says that at the time of its execution he read it over to testatrix.
    He further says that he delivered the will to her on the day of its execution and did not see it again until he drew the codicil, and that after the codicil was drawn Mrs. Cooper retained both will and codicil.
    Even if the will was in the safe deposit box for one year, as it is claimed and I have no doubt but that such was the fact, she had equal control over it with Axtell.'
    Axtell’s statement that both will and codicil were left with Mrs. Cooper at the time the codicil was executed is corroborated by other evidence.
    It appears that both will and codicil were in her possession about a year and a half before her death, as she then handed to Mrs. J. H. Van Doren an envelope containing both documents; and Mrs. Van Doren pursuant to instructions from testatrix immediately handed it to her husband, the executor appointed under the codicil to serve with Axtell.
    For the one and a half years that the will and codicil were in the custody of Mr. Van Doren they were, of course, under the control of testatrix and could have been canceled and replaced at any time without the knowledge or consent of Axtell.
    The possession of the will and codicil by testatrix taken in connection with opportunity to cancel them which she had, over a long period of time, is strong indication that she was aware of their contents.
    It has been recently held in the prerogative court of this state that “Where a testatrix, after the execution of a will, drawn according to instructions given one who conveyed them to the draftsman, has the executed will in her possession a sufficient length of time, and with the opportunity and ability to acquaint herself with its contents and she then preserves it, it will be conclusively presumed that the will was prepared according to her instructions, especially when it followed her pronounced intentions, and provides for no unnatural disposition of her estate.”

      In re Catharine McLaughlin’s Case, 69 N. J. Bq. (8 Robb.) 179.

    See, also, Bride v. Bride, lfi¡. N. J. Bq. (17 Siew.) B8%, where it was held that “if a will is shown to -have been in a testatrix’s possession long enough for her to read it the proponent need not prove that anyone saw her read it or heard it read to her or in her presence because if she had the intelligence and capacity to read it herself the law will presume, if the. opportunity was afforded her, that she was acquainted with its contents.”
    The existence of the codicil, drawn in 1904, which, in express terms, confirms the will, tends to prove that testatrix was well acquainted with the provisions of the will, as she would not have been likely to have made changes in it without familiarizing herself with its contents.
    Her statement to Minnie Pruden that “she had made a will and remembered us, she had thought a good deal about making 'her will, and she thought some people would not be satisfied,” also indicates that she was aware of its contents.
    V.
    The question whether Axteil has sustained the burden placed upon him by his indiscreet conduct in the matter of drawing and attending to the execution of the will and codicil presented for probate has been answered by the evidence.
    He placed himself in a very indelicate and highly improper position which made it necessary for him to produce voluminous testimony before this court. " '
    I am satisfied by the documentary and oral proofs (without regard to Axtell’s testimony and his emphatic statements that he in no way influenced testatrix) that at the time the will was drawn as well as at the time the codicil was drawn, Mrs. Cooper had fixed testamentary ideas as to the disposition of her estate.
    She knew what she wanted, gave her instructions to Axteil and he followed them.
    In this respect this case is different from Farnum v. Boyd■
      above cited, where the testatrix had “unsettled testamentary notions.”
    The “independent judgment” required under Farnum v. Boyd has also been exercised by testatrix in this case.
    AJ] the evidence points to that conclusion.
    In particular it is indicated by the statements and actions of testatrix in regard to the custody of her will and her statement to Minnie Pruden, above quoted, that she had given much thought to its making.
    The rule requiring that a person disposing of his property by will, must exercise a judgment independent of the confidence induced by his confidential relationship with his legal adviser, must not be confused with the rule requiring “proper independent advice,” which is applicable in the case of a person who makes a voluntary deed to take effect in his own lifetime to one upon whom he is dependent for advice.
    The law guards with peculiar care a person of advanced years, who, like King Lear, voluntarily deprives himself of his means of support in his old age, but is not so strict in the case of' a person giving away his property by an instrument taking effect at his death when he no longer has any use for it himself.
    In the former case, it must be shown that the donor liad “proper independent advice.”
    In the latter case, it need only be shown that the testator exercised his “independent judgment.”
    Mrs. Cooper has been shown to have displayed independent judgment, and to have been free from that improper and undue influence which has been defined to consist “in the exercise of sufficient control over the person, the validity of whose act is brought in question to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised.” Bennett v. Bennett, SO N. J. Eq. (5 Dick.) 'Ip3&.

    Axtell has supplemented the other evidence by repeatedly and emphatically denying ever having directly or indirectly influenced Mrs. Cooper as to the disposition of her property.
    His testimony in this regard is entitled to respect. ‘Vice-Ordinary Reed, speaking for the prerogative court in the Sparks Qase, >63 N. J. Eq. (18 Dick.) >81$, 8Jf9, says:

      “The absence of any influence, which can be regarded as undue, must, in the main o£ necessity, be proved by the legatee himself. The testimony of the legatee, unless contradicted by some other credible testimony or discredited by its improbability, cannot be arbitrarily disregarded.”
    The evidence clearly shows that the case now before me is within the established rule laid down in Bennett v. Bennett, above cited, that “every person competent to make a will has a right to the aid of any person he may think proper to select, when he desires to put his testamentary wishes in form to have legal efficacy and if he exercises this right without improper influence or control, though he selects the person he intends to make'his principal beneficiary, that fact, in the absence of evidence showing an abuse of confidence, constitutes no reason why probate should be denied to his will.”
    The proofs produced before me stand uncontradicted by any evidence produced by the contestants.
    It has been shown to my satisfaction that Axtell did not abuse the confidence of testatrix.
    The contention that he should, under the circumstances, have refused to accept her bounty is a question of ethics with which this court is not concerned.
    I am fully convinced that the will and codicil in question are untainted by fraud or undue influence.
    They represent the testamentary wishes of a woman of good mental capacity acting free from all moral and physical coercion and have been drawn strictly in accordance with her directions.
    Her wishes must control this court.
    An order will be made admitting them to probate as the last will and testament of Esther J. Cooper.

      Messrs. Yreeland, King, Wilson & Lindabury, for. the appellants Carrie L. G. Harrison, Helen Huff, Grace Guerin and and Johanna Guerin.

      Mr. John M. Mills, for the appellants Isaac N. Pruden, Kate C. Briant, Georgianna Mandridge, Geneva M. Groendyke, Albert T. Pruden, Minnie M. Simonson and Mercy P. Mullen.

      Mr. Willard W. Cutler, for the respondents Charles E. Axtell and Joseph EL Van Doren, executors.

      Mr. Charlton A. Reed, guardian at litem, respondent pro se.

   Pitney, Ordinary.

Counsel for the appellants do not controvert the principle of law adopted by the court below as applicable to the case. The contention is that the learned judge erred in his conclusions of fact.

My examination of the case convinces me that those conclusions are fully supported by the evidence, and that the respondent Axtell fairly sustained the burden of showing that the will was the product not of undue influence, but of the free and independent judgment of the testatrix.

The decree under review will be affirmed.


source: Caselaw Access Project

author: Walker, Vice-Ordinary.

license: Public Domain

text:
    In the matter of the application of Patrick Degnan for letters of administration on the estate of Nellie Moran, deceased.
    [Decided December 7th, 1908.]
    1. The husband of a married woman dying intestate is entitled to administration upon her estate, but if he be dead, or does not apply, then the grant of letters must be to her next of kin, unless there be some personally disqualifying objection to the applicant, and the probate court has no discretion in the matter and cannot ignore the claims of the persons mentioned, their right to administer in the respective cases being paramount.
    2. Choses in action left by a wife dying intestate pass to her administrator, who may be her husband, but if another shall administer such administrator will hold her choses in action as well as her personalty in specie, after the payment of her debts, in trust for the benefit of her husband if he be living, ojj for his representative if he be dead; the rule being that the right of the husband to the personal property left by the wife upon her death intestate does not depend upon his conversion or reduction of the same to his own use or possession after her death.

      On appeal from the Hudson county orphans court on an application for letters of administration on the estate of Nellie Moran, deceased.

      Mr. Edward Kenny, for the appellant.
    ilir. Joseph M. Branegan, for the respondent.
   Walker, Vice-Ordinary.

This is an appeal from an order of the Hudson county orphans court made on June 12th, 1908, in which it was decreed that the title and interest in certain shares of a building and loan association are part of the assets of the estate of John Moran, deceased, and that the association shall pay or cause to be paid, or credit the sum due upon them, to the executors of the estate of the late John Moran.

The facts of the case are these: On January 13th, 1908, Patrick Degnan presented a verified petition to the surrogate of the county of Hudson, in which he showed that he was a brother of Nellie Moran, who departed this life intestate September 19th, 1907; that she left her surviving her husband, John Moran, and the petitioner, and no other relatives; that John Moran died December 22d, 1907; that he never took out letters of administration on the estate of his wife and never reduced her property into his possession; that the only property of which she died possessed was five shares of the capital stock of the People’s Building and Loan Association of the town of Harrison, which were of the value of $800 as nearly as he could ascertain, and therefore he applied for administration of her estate.

On January 29th, 1908, the Rev. Thomas A. Conroy, presented a verified petition to the surrogate of the county of Hudson, in which he showed that Nellie Moran departed this life intestate as set forth in her brother’s petition, and left her surviving John Moran, her husband, who died December 22d, 1907, and that he, the petitioner, was the executor of the last will and testament of John Moran, appointed as such on January 8th, 1908; that the intestate (Nellie Moran) was possessed of personal property to the value of $800 as nearly as he could ascertain, and therefore he applied for letters of administration of her estate.

On February 5th, 1908, a citation was issued out of the Hudson county orphans court directed to the Rev. Thomas A. Conroy and Patrick Degnan, commanding them to appear before that court on February 21st, then instant, to answer unto the applications for letters of administration on the estate of Nellie Moran, deceased. This process was not in proper form. It required each applicant to answer to 1ns own as well as his rival claimant’s petition for administration. It should have recited that a dispute having arisen as to the right of administration upon the estate of Nellie Moran, deceased, the parties were cited and warned to appear before the Hudson county orphans court on the date named, at which time and place the court would hear and determine the matter in controversy. See Kocher's Orph. Ct. Pr. 451 form 183. However, this is merely formal, and no objection was made on this score in the court below, nor is it urged here, nor could it very well be made the subject of objection.

On April 24th, 1908, a memorandum was filed in the Hudson county orphans court by Judge Blair, as follows: “Administration will be given to the next of kin of Nellie Moran, Patrick Degnan.”

On June 12th, 1908, the order appealed from was entered. It entirely ignores (while setting aside) the memorandum of April 24th, 1908. The order is in the following words and figures :

“Application being made for letters of administration on the estate of Nellie Moran, deceased, and it appearing that Nellie Moran died September IS, 1907, leaving her surviving her husband, John Moran, who died December 25th, 1907, leaving a will which was admitted to probate by the Hudson county surrogate on the eighth day of January 190S, and it appearing that Ellen Moran was the holder of pass book No. 6660 in the Peoples Building & Loan Association of Harrison, and that after her death until the death of John Moran he had paid the premiums on the said shares and then (thus) indicated a determination to reduce same to his possession. It is on this twelfth day of June, 1908, ordered and decreed that the said right, title and interest in the Building & Loan shares, as evidenced by pass book No. 6660 is part of the assets of the estate of John Moran, deceased, and that the Building & Loan Association upon the presentation of a certified coiw of this order shall pay or cause to be paid or credit with the sum now due to the Executor of the estate of John Moran.”

Keturned with the transcript from the orphans court in this matter is an agreed state of facts which reads as follows:

"Nellie Degnan Moran was married to John Moran Sept. 18, 18S7, died in Sept. 19, 1907. She had in her own name five shares of the Peoples Building Loan Association of Harrison, New Jersey, which were issued to her Sept. 19, 1889. Those shares are now worth the sum of $616.40, of which $500 is the amount paid for them, and the balance is the accrued interest, viz: $116.40.
“Her husband John died January 23, 1907. He never .applied for nor took out letters of administration on the estate of his wife. Pie never reduced her chose in action to possession.
“She left her surviving at the time of her death no children, no father nor mother, no brother or sister except her brother Patrick Degnan of East Newark. New Jersey; and she left surviving her no child of any deceased brother or sister.
“There were no children born of her marriage with John Moran. During the time of her marriage she worked at dressmaking and earned considerable money in that occupation.”

The day after the making of the order above recited by the Hudson county orphans court, Patrick Degnan, the brother and next of kin of Nellie Moran, deceased, appealed therefrom to this court and prayed that the order of the orphans court might be set aside and that letters of administration upon the estate of the decedent might be ordered to be granted to him, and for further or other relief.

The order appealed from is erroneous in two particulars— first, because it makes no grant of administration upon the estate of Nellie Moran, deceased, and second, because the orphans court was without power to adjudicate as to the ownership of the building loan shares and order paid or credited to the executor of the estate of John Moran the amount or value of those shares.

It is to be observed that each of the parties before the orphans court of the county of Hudson prayed for a grant of administration upon the estate of Nellie Moran, deceased. The Orphans Court act (Revision of 1898; P. L. 1898 p. 715 § 27) provides that if any person die intestate administration of the goods, chattels and credits of such intestate shall be admitted or granted to the widow or the next of kin of such intestate, or to some one of them, if they or any of them will accept the same, and if none of them will accept thereof, then to such other proper person or persons as will accept the same. In Donnington v. Mitchell, 2 N. J. Eq. (1 Gr. Ch.) 243, 247, it was held that the husband is entitled to administration because he is entitled to the wife’s estate, not as her next of kin, for he is not, strictly speaking, of kin to his wife at all. See, also, Dick. Prob. Ct. Pr. 38, 39; Kocher’s Orph. Ct. Pr. 61. This was so under the probate practice of England, and is expressly recognized by our Orphans Court act. P. L. 1898 p. 715 § 170.

In Fielder v. Hanger, 3 Hagg. Ec. 770, the prerogative court of Canterbury granted administration de lonis non of a feme covert to the representative of the husband, who had taken out administration and died without fully administering, and remarked that the same grant would have been made if the husband had not taken out administration unless it could be shown that he had not the interest, but that the property belonged to the wife’s next of kin. This practice appears never to have obtained with us, although the rule that a residuary legatee will be appointed in preference to the next of kin has so obtained, notwithstanding the statute. In re Will of Kirkpatrick, 22 N. J. Eq. (7 C. E. Gr.) 463, 466; Booraem’s Case, 55 N. J. Eq. (10 Dick.) 759.

The right of the husband to administration of his wife’s estate first arose under the statute of 31 Edw. III. c. 11, “as the next and most lawful friend” of the deceased, which right, as well as the right to the propertjq the husband has under the statute of 29 Car. II. c. 3 § 25, notwithstanding the statute of distributions. 22 and 23 Car. II. c. 10.

This whole subject is ably and interestingly reviewed in 2 Hagg. Ec. Appendix 170, in a note by the reporter, but a discussion of the English practice is here unnecessary, because our statute is entirely controlling.

As already remarked, our Orphans Court act gives the husband the right to administer, and, in the absence of a surviving husband, administration must be granted to the next of kin whose right is paramount unless there be some personally disqualifying objection to the applicant. Donahay v. Hall, 45 N. J. Eq. (18 Stew.) 720, 722; Cramer v. Sharp, 49 N. J. Eq. (4 Dick.) 558. Where there is no husband or widow, administration must be granted to the next of kin, if any of them are fit and competent and will accept. Sayre v. Sayre, 48 N. J. Eq. (3 Dick.) 267.

Upon application to the surrogate of Hudson county for administration upon the estate of Nellie Moran, which was the question before the Hudson county orphans court, the only order which should have been, properly made was one granting administration to the next of kin of Nellie Moran, namely, her brother, Patrick Degnan, the appellant, and that should have been the order of the court. The administrator, however, when appointed will be considered in equity, with the respect to the residue of the estate, after payment of debts, as trustee for the husband’s representative. This was expressly decided in Donnington v. Mitchell, ubi supra, upon the authority of several cases cited in 2 N. J. Eq. (1 Gr. Ch.) 247, and the same doctrine has been held to in this state ever since.

In Nelson v. Nelson, 57 N. J. Eq. (12 Dick.) 118, the wife devised and bequeathed all of her real and personal estate to her husband, and after his death with remainder in certain realty to certain persons, and she therefore died intestate as to the remainder of her personalty. In a contest over the same between the next of kin of both husband and wife, Vice-Chancellor Emery held (at p. 122) that the right of the husband to the wife’s personal property, undisposed of by her will, does not depend upon his actual conversion of her estate after her death to his own use, and so far as the same has not been administered or converted by him, the administrator de bonis non of the wife’s estate will hold the'estate in trust to pajr over to the husband’s administrator after paying the debts of the wife’s estate.

It is to be observed that the Hudson orphans court, in the order appealed from, adjudged that the deceased husband had done certain acts which indicated a determination to reduce to his possession the dioses in action (for such they were) which were left by his deceased wife. It was not necessary for John Moran to have reduced these dioses into possession to entitle his estate to, the beneficial interest in them, nor does such beneficial interest give his personal representative the right to administer upon the estate of Nellie Moran as against her next of kin, much less does it afford the orphans court any power to make an order that the People’s Building and Loan Association of Harrison should pay or cause to be paid to John Moran’s executor the sum due upon the shares of which Nellie Moran died possessed. The building association was not before the orphans court and the decree as to it was clearly comm non judies. Besides, I cannot understand how the Hudson county orphans court could have found that the husband had reduced the choses into possession before he died, which is practically what was decided in that regard, in the face of the agreed state of facts, which says that he did not do so.

In Stoutenburg y. Hopkins, 43 N. J. Eq. (16 Stew.) 577, Chancellor McGill, as ordinary, said in the prerogative court (at p. 580) (speaking to the question of the validity of a will), that if the will shall not be established, the husband will be entitled jure mariti to the wife’s entire personal estate; citing Donnington v. Mitchell, 1 Gr. Ch. 243. This case was affirmed in 45 N. J. Eq. (18 Stew.) 890, on the opinion of the ordinary in the prerogative court.

In Folwell’s Case, in the prerogative court, 67 N. J. Eq. (1 Robb.) 570, Chancellor Magie, as ordinary (at p. 572), remarked that, if Mrs. Folwell had died intestate her husband would have been entitled to all her personal property, the jus mariti in this respect having been recognized and preserved by section 170 of the Orphans Court act. P. L. 1898 p. 870. This case was reversed (see Folwell’s Case, 68 N. J. Eq. (2 Robb.) 728), but upon the sole question whether or not the last will and testament of Mrs. Folwell bequeathed her personal estate to her daughter absolutely, and it remains an authority' for the view which I take, to the full extent.

In Wright v. Leupp, 70 N. J. Eq. (4 Robb.) 130, Vice-Chancellor Pitney remarked (at p. 133) that by' the common law which prevails in New Jersey', the husband is not only entitled to administration of his wife’s estate lying in this state, but whoever may administer it, he is entitled to her whole net personalty. Hence, any' fund which might come to the hands of the complainant’s administrator must after paying her debts go to the husband.

Counsel for the appellant contends that because Mr. Moran did not reduce his wife’s choses in action into possession during his lifetime that the beneficial interest in those choses has passed to the next of kin of his deceased wife; but this position, as already shown, is not tenable. Counsel relies upon Bacon v. Devinney, 55 N. J. Eq. (10 Dick.) 449, in which it was held that when a husband and wife both make payments to meet the dues of building association stock standing in the name of the wife, the presumption is that his payments were gifts to her. Even so, there is nothing in this view which militates against the husband’s right to have his wife’s personal property after her death, and, in fact, in that case, Vice-Chancellor Grey held (at p. 454), that the husband had a right to the ownership of the stock subject to the pledge made of it for the debt of the wife created in her lifetime. This is but a reaffirmance of the doctrine that the wife’s personal property is subject to her debts and her surviving husband takes only the net surplusage o£ her personalty, and this, too, in effect, is decided in Bacon v. Devinney (at p. 456).

On behalf of the appellant reliance is also placed upon Vreeland v. Ryno, 26 N. J. Eq. (11 C. E. Gr.) 160, in which Chancellor Runyon said (at p. 162), referring to the common law, that the husband had an interest in the choses in action of the wife which he could reduce to possession, and when so reduced, they became his absolutely, and on his death went to his representatives, but that such of them as had not been reduced to possession by him at his death, still remain hers, and at her death went to her representatives and not to his. But this case is in entire harmony with the eases in this state which hold that the beneficial interest in the deceased wife’s property pass to the husband’s representative after his death. In that case and in Complon v. Pierson, 28 N. J. Eq. (1 Stew.) 229, 232, Chancellor Runyon simply adverted to the common law rule that the choses in action of the wife not reduced into possession by the husband in Ms lifetime went to her representatives at her death and not to his, and this where .the wife survived the husband, and in both cases he referred to the fact that after the death of the wife the husband, as her administrator, might reduce her choses in action into his possession and hold them jure mariti.

It must be conceded that choses in action belonging to the wife pass at her death to her representative. That representative may be the husband if he survives her, and, if he fails to take out administration, her administrator, after the payment of her debts, holds her personalty in trust for her husband if he be living, or for his representative if he be dead. There is no conflict between the cases; they are all in harmony and in entire accord.

The result is that the decree of the Hudson county orphans court must be reversed, and the record remitted to that court with instruction to grant administration on the estate of the late Nellie Moran to the appellant, who is her only surviving brother and next of kin.


author: AYalker, Vice-Ordinary.

text:
    In the matter of the probate of the will of Howard P. Frothingham, deceased.
    [Decided December 18th, 1908.]
    1. Pencil erasures on the face of a will are as effectual to cancel the portion obliterated as if done with ink.
    2. In case of pencil erasures on the face of a will, the question is whether the erasures were intended to be the testator’s final act, or whether they were dependent relative revocation, not final; intention with which the marks were made being the test.
    3. The presence of pencil marks on the draft of a new will, found in a drawer of testator’s desk after his death, is prima facie evidence that the marks were made by him. and indicate that he was still in a state of dubiety as to the disposition of his property.
    4. That certain gifts made by a testator are inoperative because of his altered circumstances cannot be urged as a reason for holding that erasures on his will were made animo revocandi.

    5. If a will is shown to have been canceled for the purpose of making a fresh will, the original is not revoked if no fresh will is made.
    6. That a testator makes an unnatural will, or allows a will to stand which, by reason of changed circumstances, would be unnatural if made at the particular time, is not a reason for overthrowing it.

      7. Irrespective of intention testaments can only be revoked according to the formula prescribed by statute.
    On appeal from the Monmouth county orphans court granting-probate of the last will and testament of Howard P. Frothing-ham, deceased.

      Messrs. McDermott ■& Fish, and Messrs. Bigham •& Wagner (of the New York bar), for the appellants, Meredith S. Frothingham and Grace Bleecker MacSjonon.

      Mr. Benjamin P. Morris and Mr. Fdmund Wilson, for the respondents, Maud LeGrand Frothingham, Beatrice Maud Frothingham and James P. Dodd.

      Mr. Clinton E. Fish, for the respondent, Lillian Low.
   AYalker, Vice-Ordinary.

The Monmouth county orphans court on May 29th, 1907, made an order admitting- to probate the last will and testament of Howard P. Frothingham, late of the county of Monmouth, deceased, omitting from the probate thereof, however, the second, third, fourth and fifth clauses of the will, through which lead pencil lines by way of erasure had been drawn by the testator and another in his presence and with his approbation, and which erasures, it was adjudged, were cancellations made by Mr. Frothingham animo revocandi.

In the clauses of the will thus erased, and said to have been canceled with intent to revoke the parts of the testament obliterated, Mr. .Frothingham made provisions as follows: Second, to his daughters, Lillian Low and Beatrice Maud Frothingham, each an annuity of $150 per month for life, and to his sister, Grace Bleecker MacSymon, and his brother, Meredith S. Frothingham, each an annuity of $100 per month for life, such annuities to be a charge against his residuary estate; third, to his friend, James P. Dodd, his business of negotiating loans in New York City; fourth, to his daughter, Lillian Low, a house and land in East Orange, together with the contents of the house, and fifth, to his wife, Maud LeGrand Frothingham, a house and land in New York City; also a house and grounds at Deal Beach, Monmouth county, and the contents of the house; also his onelialf interest in a large tract of land located in the counties of Passaic and Bergen.

The pertinent facts concerning the cancellations referred to are .these: James P. Dodd, the person to whom Mr. Frothing-ham in the third item of his will bequeathed his business, testifies that he was employed b3r Mr. Frothingham at his office in New York; that a week or so after the will had been executed Mr. Frothingham brought it to the office to put in his safe and it then had no pencil marks upon it. On a da3r in December, 1906, Mr. Frothingham had a talk with the witness about his financial situation and said to the witness that he had almost no estate left outside of what real estate he had and that he thought he ought to change his will, because he had provided in it for annuities and there was no money out of which to pay them and he was worried about what would become of his wife; he wanted her to get all she could out of the estate which was very little, and he told the witness to call his attention to the matter the next day so he could get the will out of the safe and make the changes. The next day he himself asked for the will and the witness got it out for him and he made the pencil marks upon it in the presence of the witness, with the exception of the marks through the names of the witness and of John Olney and John J. Edwards, which marks were made by the witness in Mr. Frothingham’s presence. The word “sold,” written in lead pencil on the fifth item of the will, was made by Mr. Frothingham, and the tract so marked sold was in fact sold between the date of the will and the day of the drawing the lead pencil mark to which reference is made. The witness then asked Mr. Frothingham if he wanted him to send the will over to his lawyer, and he said: “No, send it to.the man who engrossed it and have him make a draft of it according to the directions.” This was done and the draft came back, and there was a clause in it that did not suit Mr. Frothingham and he threw it aside and put the old will in the safe. The new draft he put in his desk; that on the day before the changes rvere made and during the talk about them lie suggested that inasmuch as Mr. Frothingham thought his family would get hardly anything out of the estate that it would be a good thing to let Mrs. Frothingham share in the business, if he thought there was anything in it; and they also talked about taking his son-in-law in the office, and Mr. Frothingham asked the witness’s opinion upon the matter and he told him he thought it would be a very good thing inasmuch as Mr. Frothingham was going away for some time and it probably would be better to have some representative of his family in the office, and he gave the witness instructions to have the business go to Mr. Low instead'of to himself as provided in the original will. Mr. Frothingham said nothing about the business on the day the changes were made. It was the day before when they had the long talk that the instructions were given. In pursuance of this conversation the witness, Mr. Dodd, gave the draftsman instructions to substitute the name of Mr. Low for himself in the will.

George J. Ennis testified that he was a clerk for Mr. Frothingham and was present in his office in December, 1906, with Mr. Frothingham and Mr. Dodd, and saw the will on Mr. Frothingham’s desk and he saw Mr. Frothingham make the pencil marks on the will and heard him say that he had some changes to make.

The only other persons sworn were the subscribing witnesses to the will, who proved its due execution.

It is settled that pencil erasures made upon the face of a will are as effectual to cancel the portions obliterated as if done with ink. Hilyard v. Wood, 71 N. J. Eq. (1 Buch.) 214. The question, however, is whether the erasures were intended to be the final act of the testator by way of canceling portions of his will, or whether they were, what is called in the law, dependent relative revocation, which, of course, is not final.

The intention with which the testator makes the marks upon his will is the crucial test as to whether or not cancellation is intended. Vice-Ordinary Bergen, in Hilyard v. Wood, supra (at p. 9), said that the manner in which the erasure is made, whether in ink or pencil, the extent of it, and its effect upon other uncanceled portions of the will, may prevent the presumption of finality. Now, in the case under consideration, if it be conceded that omitting the parts of the will said to have been canceled does not render the remaining portions ambiguous (which is true assuming the testator meant to cancel the last line of the second item which is untouched by the pencil mark), the other tests as to finality, namely, the manner in which the erasures were made, and the extent of them, certainly make against the presumption of finality. Especially is this so, when the acts of the testator are considered in conjunction with his declarations.

Let me say at this juncture that in Hilyard v. Wood, supra, the character of the erasures made upon the will were such as to lead most strongly to the conclusion that the act was deliberate on the part of the testator and made with intent to obliterate the portions marked, for there were three or more lines drawn through each part of the will intended to be eliminated. Not so in the case of the will under consideration.

In the will of Mr. Frothingham the second item is composed of seventeen lines on the first page and one line on the second page. Through the seventeen lines on the first page are drawn two pencil marks obliquely crossing each other, while the eighteenth line of the second item, which is the first line on the second page, is without cancellation. Through the third item, in which the bequest of his business is made by Mr. Frothingham to his friend, Mr. Dodd, is drawn a single and practically vertical lead pencil mark through the first fourteen lines, leaving two lines at the conclusión of the item untouched by the vertical mark. These two lines are canceled by four oblique lines running through portions of them, two of which extend up into the body above. My reading of the testimony leads me to believe that the mark made by the testator upon this third item is the single vertical pencil mark to which I have referred. The testimony of the witness, Dodd, is somewhat ambiguous upon this point. He says that Mr. Frothingham made all of the pencil erasures with the exception of the mark through his own name in the second line of the third item, and, to use his own language, “the mark through Mames P. Dodd’ was made by myself in his presence. The mark through ‘John Olney’ and ‘John J. Edwards’ was also made by me in his presence.” In the answer from which the foregoing is quoted he mentions obliterating his own name twice, and in the testimony thus literally copied I take it that his mention of his name refers to the second time his name appears in that item. It should be stated in this connection that the vertical pencil mark through the third item runs through the initial letters of the names of Dodd and Edwards. This line was drawn by the testator unless he stopped above the fifth line from the end of the item, in which event that line was continued by the witness Dodd. An inspection of the line both with the naked eye and under the microscope clearly indicates that it is a continuous line drawn by the same hand at the same time, and, if it were efficacious to cancel all parts of the item through which it was drawn; or, for that matter, the whole item, the names of James P. Dodd, John Olney and John J. Edwards were effectually canceled by that mark. Now, if Mr. Dodd drew the lines through his own name and the names of Olney and Edwards, he did it by making a practically horizontal line through his own name in both places where it occurs in the item, and by drawing an oblique line through the name of John J. Edwards, which line extends for a considerable distance through the item, and by drawing several other irregular lines through the end of the item where the three names occur. The following is a copy of the third item, line for line, with straight marks in ink drawn through it, which marks closely approximate the pencil marks upon the face of the item:

THIRD.—I give and be queath to my friend JrAM-HS Ik DOb/> my business of negotiating' time and/call loans, established in 1881, conducted at No. 2 Wall Street, New York City.iincluding' my furniture and furnishings? connected therewith, and I autliorize/him to continue the said business and/direct that the income derived therefrom shall go to his own right, hereby' request to retain JOHN him absolutely and if It 'in" my wwh-nnd' the 1 m*Bi J. EDWARDS now in

The fourth item is obliterated by an oblique pencil mark drawn entirely through the item, as shown approximately in the subjoined copy of that item, marked in ink:

(Page 2.)
FOURTH. I give, deviseyfi.ad bequeath fo my beloved daughter UJJHIAN LOW, the house and band lm#wn and designated as No. 84 Cfj^deton Street, East Orange, New JeySey, together with all the contents^? said house absolutely and in hePown right.—

The fifth- item was canceled by vertical pencil marks drawn clear through the item from top to bottom, and in that item, in the last paragraph, in addition to the vertical pencil line the word “sold”' is written in pencil, so that some part of the pencil-writing extends over the last four lines of the item, which is a bequest to the testator’s wife of a half interest in a tract of land located in Passaic and Bergen counties, in this state. The following is a eop3r of the fifth item, showing approximately how it is marked:

age 2.>
EE GRAND FR( IINGIIAM, the house and land known and d jnated as No. 20 West , to my beloved at devoted wife MAUD' FIFTH:—I g: devise and bequeath
(Page 3.)
ilfy-onli Mindred (2100) neioiamfies of Passaic SfCV °f New Jersey, mil being owned by ,v Tork City.— pe-halfvl/2) inter-id UakeAdract of land

Mr. Frothingham was undoubtedly a man of affairs and one who seems to have been precise about the form in which his will should exist. He appeared to be unwilling that his testamentary acts should repose in any poorly written or even typewritten form, but had his will engrossed by one who was a professional scrivener, a man who wrote what is called a “court hand.” After the emendations referred to were made upon the face of his will, he directed Mr. Dodd to take it to the man who engrossed it, and to use his own language, “have him (the scrivener) make a draft of it according to the directions.” “Make a draft of it,” to my mind, means make a draft of a will for execution by the testator. The “directions” referred to could be nothing more than the erasures upon the face of the will plus the verbal declarations of Mr. Frothingham to Mr. Dodd. It is a singular thing that upon receiving the will with the marks of cancellation upon it and hearing the verbal directions from Mr. Dodd, the scrivener should have made a new draft containing as the third item, a devise and bequest to the testator’s daughter, Mrs. Low, of the house and its contents which were devised and bequeathed to her in the fourth item of the original will, and through the entirety of which item in the original will a lead pencil mark was obliquely drawn. What occurred then was this: The will with the obliterations upon it was sent to the scrivener with request to make a new draft according to directions, and the directions, aside from those that the marked will would naturally indicate, were disclosed by Mr. Dodd, and the draft of a new will, when sent over to Mr. Frothingham, gave the business to Mr. Low and the house, No. 84 Carleton street, East Orange, to Mrs. Low, coupled with a devise and bequest of all the testator’s residuary estate to his wife, whom he appointed his executrix, with power of sale of his real estate. Mr. Dodd says that when the draft came back there was a clause in it that did not suit Mr. Frothingham, and that he threw it aside and put the old will in the safe, and the draft was found after his death in a drawer in his desk, with erasures upon it made by lead pencil marks. The lead pencil marks on this draft are drawn practically perpendicularly through the first, second and third items. The first item directs his executrix to pay his debts; the second bequeaths the business to his son-in-law, Low, and the third de- ' vises and bequeaths the house and contents to his daughter, Mrs. Low. One line of the third item is left untouched on the second page, and the fourth item is a gift of the residue of his estate to his wife; the fifth authorizes the executrix to sell real estate, and the sixth constitutes his wife executrix. Mr. Dodd says that one clause in the draft did not suit Mr. Erothingham; which one we are not informed, but when the' draft is produced we find three items erased.

Let us look again at the language used by the testator at the time he made the pencil marks upon his will. Mr. Dodd says that in a conversation with him the testator said that he had almost no estate left, and thought he ought to change his will, and asked the witness to call his attention to the matter the next day so he could get the will out of the safe and make the changes. These expressions read, in connection with the testator’s direction to the witness, to take the will to the scrivener to make a new draft according to directions, one direction admittedly being that the third item, which was more effectually canceled by pencil marks than any of the other provisions, should be incorporated into the new draft, leads my mind to the conclusion that the pencil marks upon the will were not made animo revocandi, but were made as a guide and by way of instruction to the scrivener, concerning the drawing of a new will which the testator proposed to execute in substitution for the one upon which he had made the marks. My judgment is that there was a verbal direction given to the scrivener which Mr. Dodd forgot to tell about when he was examined as a witness, and that was concerning the fourth item of the original will which devised and bequeathed a house and lot to Mrs. Low. Although effectually canceled by a lead pencil mark, if canceled at all, this item appears in the new draft as item third. In my opinion, the scrivener was instructed by Mr. Dodd to rewrite this item into the new draft or it would not have appeared in it. Without directions to incorporate that item in the new draft, the scrivener could hardly have made the mistake of renumbering and rewriting it, for, as he copied it word for word and line for line from the old will into the new draft, his eyes would have beheld at every glance the mark of obliteration. He must have been instructed to rewrite that item notwithstanding the erasure. I am aware that there is no direct testimony to the effect that the testator sent word to the scrivener to re-embody the fourth item of the will into the draft notwithstanding the pencil erasure mark upon it, but it is reasonably to be presumed that such instruction was sent. In no other way can I account for the presence of item three in the new draft.

It is perfectly obvious that the testator again determined upon changes, for the draft of a new will when produced shows an obliteration by the same character of marks across the bequest of his business to his son-in-law and the gift of a house and its' contents to his daughter, as appears on the original will. The draft being found in the drawer of his desk after his death with the pencil marks upon it, is prima facie evidence that the marks were made by him (Hilyard v. Wood, ubi supra), and would indicate that he was still in a state of dubiety as to what disposition he would make o£ his property.

If anything were wanting to show the inconclusive character of the marks made upon the face of the original will it is supplied by the testimony of Mr. Dodd, who said that the will was to be redrawn on the lines as he had proposed to make the changes and as indicated by the lead pencil marks, and those lead pencil marks were for the instruction of the draftsman as well as the ones put on by him. Now, according to this testimony, the testator did not change, but proposed to make changes in Ms will, and the pencil marks made both by the testator and the witness were intended for the draftsman; and those pencil marks, and nothing more, would have indicated that the draftsman was to omit entirely from the new draft the third item which contained a bequest of the business, but, when the draft came back, it contained the clause giving the business to Mr. Low instead of Mr. Dodd, just as Mr. Dodd says Mr. Erothingham intended. This shows conclusively that that intent, with reference to the second item, was to be gathered from the pencil marks plus the verbal instructions, and, therefore, there was no cancellation of the second item by the drawing of the pencil marks upon it because of a want of intent on the part of the testator thereby to revoke that portion of his will.

The testimony shows that the tract in Passaic and Bergen counties, devised to his wife, had been sold by the testator between the date of making his will and the time of making the lead pencil marks upon it. The testimony does not disclose any sale of the property in East Orange, which he bequeathed to his daughter. The learned judge in the court below stated that although not in proof it was stated by counsel at the hearing that the real estate devised by the testator to his daughter, Lillian Low, in the fourth item of his will, and to his wife in the fifth item of his will, had been sold prior to making the pencil marks in December. If this be so it is somewhat singular that he should have written the word “sold” only upon the description of the tract in the counties of Passaic and Bergen, and not upon the description of the house and land on West Seventy-seventh street, New York, and the house and land at Deal Beach, New Jersey, which tracts he devised to his wife in the fifth item, and that he should not have so written the word “sold” upon the description of the East Orange property given to his daughter. In other words, if all of these properties had been sold at the time he made the pencil marks upon the will, and if the word “sold” was written with any idea of significance at all, it would seem that it would have been written upon the descriptions of all the properties similarly situated. Surely, the word “sold” written alone across the description of one of the properties would indicate that it alone had been sold and the rest still remained to the testator. Assuming that the.statement of counsel just adverted to has the same force as evidence, the facts stated can have no controlling effect. On this score, the remarks of Skillman, surrogate, In the matter of Raisbeck, 52 N. Y. Misc. 279 (at p. 284). are pertinent. He said that' some point was made that certain provisions of the paper propounded as a will in that case were invalid, and that others were impossible of execution, but he remarked that with those questions he had no concern when dealing with the sole question as to what was in the testator’s mind when he made the pencil marks upon the will.- The application of this observation is, that although certain gifts made by Mr. Erothingham are inoperative because of his altered circumstances, that cannot be urged as a reason for holding that the erasures on his will were made animo revocandi. I do not say that the fact cannot be considered with other facts as indicative of such intention, but I do say that, standing alone, it is entirely without controlling effect.

Now, as the new draft contained a devise of the East Orange house to his daughter, the same as in the original will, it may be that the reason the testator drew the pencil mark through that item of the new draft was that he had sold the East Orange property between the date of making erasures upon the face of the original will and his examination of the new draft. In the absence of a precise statement by counsel giving the dates of the sales of his various tracts of land by the testator, and the exact dates of the markings upon the original will and upon the new draft, it may be presumed that the sale of the East Orange property was effected during the interval just mentioned.

In the matter of the will of Kirkpatrick, 22 N. J. Eq. (7 C. E. Gr.) 463, two legacies were canceled by lines drawn by the pen across and upon the words. Besides this there were memoranda in the margin, one opposite each canceled part signed by the testatrix in the one case and by her initials in the other, stating she wished to erase those parts. The canceling was clearly done bjr her, and there was no evidence to overcome the presumption that the cancellations were made animo revocandi.

In Theob. Wills (6th ed.) 44, it is laid down that if a will is shown to have been canceled for the purpose of making a fresh will, the original will is not revoked if no fresh will is made.

In the goods of Appellee, 1 Hagg. Ec. 143, the deceased delivered his will to his executor and requested him to make certain alterations in it which he did in pencil, drawing it through the signature at the bottom of the will. The deceased expressed his approbation of the alterations and said he would make a copy of the instrument and execute it. He afterwards wrote a paper in substance the same as the will, but did not execute it. The court held that the signature on the will being struck through was to be regarded as preparatory to the deceased making a new will, which he did not do, and that must be construed as only a conditional cancellation, and consequently not a revocation. If, as held in the case just mentioned, the cancellation of an entire will will not be established when the signature of the testator is struck out, because the cancellation was only done with a view to the substitution of a new testament to be executed, then, surely, the striking out of only parts of a will made with the same intention to substitute for the document a new testament will not, in the absence of the execution of such new testament, operate as a revocation of the parts of the will which are thus tentatively canceled.

In Powell v. Powell, 14 L. T. Rep. 800, the question was whether a will made in 1862 was revived by the destruction of a will made in 1864, which revoked the first one. The deceased intended by the destruction of the second will to revive the first, but the second will was probated, as it was revoked only with intent to revive the first, which it was inefficacious to do. A draft of the second will was admitted to probate as and for the testament which had been destroyed. Speaking to the doctrine of dependent relative revocation, the court said that if the act of destruction be done with the sole intention of setting up and establishing some other testamentary paper for which the destruction of the paper in question was only designed to make way, it was clear that in such case the animo revocamdi had only a conditional existence, the condition being the validity of the paper intended to be substituted. ITpon principle the doctrine of this case is pertinently applicable to the case in hand, for, just as surely as a prior will is not revoked by the destruction of a later will which in terms revokes the first one, erasures made upon the face of an existing will when made with a view to the execution of a new testament to give effect to the intentions of the testator as expressed in the original will modified to the extent of the erasures made, will not operate as a cancellation of the clauses in the will thus obliterated, and especially is this so when, as in this case, the erasures upon the will do not discover all of the testator’s intentions with reference to alterations, part of which reside in parol instructions to the scrivener.

The case under consideration, as I view it, is essentially a fact case. There can be no doubt but that revocation can be made of part of a will or of an entire will by lead pencil erasures made upon its face animo revocandi. Every case of a will thus obliterated in whole or in part must be determined upon the facts of that case as to the intention with which the marks were made.

The learned judge in the court below lajrs great stress upon the fact that the testator realized that he had sustained great losses since the execution of his will and had provided for annuities which his estate could not pay, and was naturally worried about what would become of his wife and wanted her to have all she could, get out of the estate. The condition of the testator at the time of making the erasures on his will was such as undoubtedly impelled him to change his testament so as effectually to protect his yvife to the extent that his estate yvould protect her, but, in order to do what he intended, his intention must have been given expression according to the forms of law. That a man makes an unnatural will, or allows a yvill to stand which, by reason of changed circumstances, would be an unnatural one if made at the particular time, is not a reason to overthrow the testament. Hundreds of men fail, through neglect, to alter wills, as their own circumstances and those of the natural objects of their bounty undergo a change, and thousands of men, for the same reason, entirely fail to make wills at all yvhen every sense of duty and responsibility indicate that they should do so. We have a statute knoyvn as the statute of wills, and testaments can only be validly made according to the formula prescribed by that statute, and those testaments when made can only be revoked according to the provision of that statute. Failing either in the due execution or revocation of testaments, the act of the deceased, no matter how well intended, fails utterly to accomplish his purpose.

Convinced that the testator intended to change his will, but equally convinced that he never carried his intention into’ effect, I am constrained to hold that the order of the Monmouth county orphans court admitting the will to probate in an abbreviated form should be modified, and that court directed to admit the will to probate in its entirety. This leads to a reversal. The costs of all parties yvill be ordered to be paid out of the estate.