author: Stevenson, V. C.

text:
    Austin H. Watson et al. v. Edward H. Rowley et al.
    [Filed May 10th, 1902.]
    1. Under the Chattel Mortgage act, declaring chattel mortgages, where the mortgagor retains possession of the property, absolutely void, unless accompanied by an affidavit made by the holder of the mortgage or his agent stating the true consideration for the mortgage, it must appear in the affidavit that the affiant is the holder of the mortgage or his agent or attorney.
    2. A valid affidavit cannot be made by the holder’s agent or attorney unless the agency and power to represent the holder relate to the holding of the mortgage.
    3. The mortgagor cannot act as the agent of the holder, at least as long as the former retains his interest in the property.
    4. Under P. L. of 1899 oh. 51f § 15, a chattel mortgage given by the assignor, and void as against creditors for failure of the holder of the mortgage to make the affidavit required by the Chattel Mortgage act. is void as against the assignee.

      5. Where a bill to foreclose a chattel mortgage joined tne mortgagor’s assignee for benefit of creditors, who moved to dismiss as to him because the bill showed the mortgage to be void as to him, the fact that the mortgage was valid as to the mortgagor was no ground for denial of the assignee’s motion, the validity of the mortgage as to him being the only question before the court.
    C. A chattel mortgagee filed a foreclosure bill making the mortgagor’s assignee .for the benefit of creditors a party. It appeared from the bill that the mortgage was void as to the assignee, but there was no allegation as to whether or not the mortgaged property was needed for the payment of the other creditors.—Held, that in the absence of any allegation that the other property was sufficient to satisfy the claims of other creditors, the assignee’s motion to dismiss as to him would not be denied, because it did not affirmatively appear from the bill that the mortgaged property was needed to satisfy the other claims.
    On motion to dismiss bill.

      Mr. William H. Speer, Jr., pro se, for the motion.

      Mr. Edward A. Day, contra.

   Stevenson, V. C.

The bill is filed to foreclose a chattel mortgage and if necessary to reform the same. The defendant, who, on this motion objects to the sufficiency of the bill as against him, is the general assignee of the mortgagors for the benefit of their creditors. His insistment is that the mortgage is shown by the bill to be void as against him because of the insufficiency of the affidavit accompanying the same.

The claim of the complainants that, in case the affidavit should be adjudged to be defective by reason of its failure to comply with the requirements of the statute, the mortgage could now be reformed by the addition of a new affidavit, does not seem to call for extended discussion. The chattel mortgage, once absolutely void as against creditors or purchasers cannot be made valid without to a large extent abolishing the Chattel Mortgage act. The point seems to be directly ruled upon by Mr. Justice Magie, the present chancellor, speaking for the entire court of errors and appeals in Magowan v. Baird, 8 Dick. Ch. Rep. 656, 657.

The questions to be determined are whether the affidavit attached to the mortgage fails to comply with the requirements of our statute, and if so, whether this defendant, the general assignee, belongs to a class of persons as against whom the mortgage is “absolutely void,” and if both these questions are answered in favor of this defendant, whether the bill can be retained for any purpose as against him.

The argument on both sides has proceeded upon the assumption that the mortgage was not “accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged,” and that therefore the Chattel Mortgage act applies to this case.

The bill does not allege that there was a change of possession when the mortgage was delivered, nor does it in terms allege that there was no such change of possession. There are, however, numerous allegations in the bill which indicate strongly that no change of possession occurred.

The bill claims that the mortgage fulfilled the requirements of the statute, and in case that contention is not sustained, seeks to obtain the aid of the court in any necessary reformation of the instrument so as to make it conform with those requirements. The mortgage purports to convey a plant of machinery situate in the factory of the mortgagors, Rowley & McCreery, at Hightstown, New Jersey, alleged to have been in the possession of the mortgagors when the mortgage was executed on January 24th, 1902. There are also allegations which indicate that the mortgagors continued their business in their factory after the mortgage was made, and the mortgage' contains the usual authorization to the mortgagees in case the sum secured should come due and remain unpaid, to enter any place where the mortgaged property might be and to seize and sell the same.

The bill further alleges that on February 7th, 1902, fourteen days after the mortgage was executed, and only three days after it was recorded, the mortgagors executed and delivered to the defendant, William EL Speer, Jr.,

“a deed of assignment of all their property and assets, including the said mortgaged chattels, for the benefit of their creditors, and that the said Speer has taken possession of the goods and chattels covered in said mortgage and all the business and other property and assets”-

of the mortgagors and now is in possession thereof. In view of these allegations and the assumption of counsel for the complainants, in his argument, that the Chattel Mortgage act was applicable to this case, I think that for the purpose of this motion the bill should be construed as setting forth a mortgage of chattels -which remained in the possession of the mortgagors, or, at least, at no time after the mortgage was made were continuously in the possession of the mortgagees.

The affidavit attached to the mortgage, the jurat of which bears date January 24th, 1902, is as follows:

“Edward H. Rowley and Benjamin E. McCreery, the mortgagees in the foregoing mortgage named, being duly sworn on their oath say that the true consideration of said mortgage is as follows, viz.: One thousand five hundred dollars in cash this day paid to these deponents by the firm of Watson Porter Giles & Company, and deponents further say that there is due on said mortgage the sum of one thousand five hundred dollars in cash, besides lawful interest thereon from the date day of this mortgage and affidavit.”

The word-“mortgagees” in this affidavit is a palpable clerical error and must be read “mortgagors.”

(1) The first objection to the affidavit is that it does not show on its face that it was “made and subscribed by the holder or holders of said mortgage, or their agent or attorney.” It appears affirmatively that the affidavit was not made by the holders of the mortgage, and it does not in any way appear that Messrs. Eowley & McCreery were the agents of the holders of the mortgage. The defendant insists that where the affidavit is made by an agent of the holder, the fact that he is such agent must appear upon the face of the affidavit.

The objection, in my opinion, is fatal to the sufficiency of the affidavit. If the affidavit is made by the holder of the chattel mortgage, that fact should appear. A person may become the holder of a chattel mortgage by an assignment made subsequently to the execution and delivery of the mortgage. The mortgage may not be accompanied by any affidavit and yet it would seem that the holder may annex his own affidavit and record the mortgage with the effect that the mortgage will become in a large degree operative from the date of such record. Roe v. Meding, 8 Dick. Ch. Rep. 350.

There are many reasons which seem, to my mind, to sustain the proposition that an affidavit made in fact either by the holder of a chattel mortgage or by the agent of such holder is not a compliance with the statute where the affiant does not appear in the affidavit or mortgage to be either such holder or such agent.

The main objects of the affidavit are to secure good faith, to prevent fictitious liens from being placed on record, and to enable creditors and other parties interested in investigating the status of personal property to make inquiry into the nature of any alleged mortgage where no change of possession has occurred. The person who is qualified to make this affidavit of good faith is -prescribed strictly by the statute. He may know little or nothing as to' the truth of the statements which he is required to make under oath. He must satisfy himself of the truth of these statements, and upon their truthfulness may depend the validity of the mortgage.

The facts alleged in the affidavit might not be provable in any litigation by the oath of the person who makes the affidavit. The witnesses who alone in such litigation could establish these facts by their testimony might all of them be disqualified from making the affidavit necessary to validate the mortgage because none of them -was the holder or the agent of the holder of the mortgage. It is thus not only necessary that a proper affidavit should be made in regard to certain facts, but it is equally necessary that such affidavit should be made by an affiant who is particularly described by his special relations to the mortgagor and the mortgaged property. The mortgage might be void though accompanied by a dozen affidavits made by credible witnesses who had knowledge of all the facts. The mortgage would be valid though accompanied only by the affidavit of the holder thereof or his agent, notwithstanding that such holder or agent had no knowledge whatever of the most important matters alleged in such affidavit. These propositions are, I think, fully sustained by the decision of the court of errors and appeals in Fletcher v. Bonnet; 6 Dick. Ch. Rep. 616.

In the same case in this court (6 Bide. Gh. Rep. 162, 165) Yice-Chancellor Pitney held that inasmuch as neither the mortgage nor the affidavit showed that the affiant was “the agent or attorney of the several beneficiaries under the instrument in question other than himself * * * it was very properly conceded by counsel for the defendant that the affidavit could not be maintained on that ground.”

This ruling was not affected by the reversal of the decision in the higher court.

Where an affidavit, made in pursuance of a statute, derives its force, not from the fact that the affiant, as a witness, testifies to facts within his knowledge, but from some special capacity or personal status of the affiant, who may speak from information or belief only, it would seem that the existence of such capacity or personal status should appear in the affidavit, in order to give it validity, and cannot afterwards be supplied by evidence aliunde. If additional proof of this essential fact may be supplied, why not also additional proof of any of the other essential facts which the affiant must set forth ? While the Chattel Mortgage act does not, in terms, prescribe that this capacity of the affiant to make the affidavit must appear therein, it seems to be the intention that the record must show facts which, if true, make the otherwise void instrument valid.

It is a common practice, followed, or attempted to be followed, in this case, to have the affidavit show the capacity of the affiant in an introductory recitation of the officer before whom the affidavit is made. Whether or not such a practice is to be regarded as satisfying the requirements of the statute may be passed without discussion.

(2) But if the defective affidavit can be “holpen by averment,” I cannot find in this bill any sufficient allegation to the effect that the affiants were the agents of the mortgagees or the agents of the holders of the mortgage within the meaning of the Chattel Mortgage act. The complainants, in their bill, “show and charge and insist that in making the said affidavit” the affiants were the complainants’ agents, and that they (the complainants) have ratified, and by their bill do ratify, the acts of the affiants “in making the affidavit” as theiragents. A perusal of the whole bill leaves a doubt whether this allegation of agency should not be taken as the statement of a mere conclusion of law. But giving the statement its full force as a proposition of fact to •be taken as true on this motion, it merely sets forth that the affiants acted as agents of the mortgagees “in malcing the affidavit.” The essential proposition of fact which the statute requires to be established in some manner is that the affiants who make the validating affidavit to the chattel mortgage were the agents of the holders of the mortgage; the conclusion of law then follows that, being such agents, they were authorized not by the holders of the mortgage, but by the statute, to make the affidavit. The whole theory established by the court of errors, in Fletcher v. Bonnet, that the force of the affidavit comes from the status or capacity of the affiant, would be abrogated if the holder of the mortgage could depute the statutory duty of making the affidavit to any person whom he might see fit to make his agent or attorney for that purpose. The whole policy of the statute could readily be evaded if the man whose conscience is to be tested could employ any agent or attorney to do the swearing for him.

It seems to me that the Chattel Mortgage act indicates very plainly that, when the holder of the mortgage is not sworn to free it from its taint of invalidity, or original common law fraud, only an agent or attorney who represented the holder in acquiring the mortgage, in becoming the holder of the mortgage, or at least represents him in maintaining the possession of the mortgage and his status as the holder thereof, and as such agent or attorney would probably know the actual purpose of the instrument, has the required capacity to take the affidavit in the holder’s place.

In brief, the agent or attorney of the holder of the mortgage referred to in the statute must be one whose agency and power to represent the holder relate to the holding of the mortgage.

It may be observed, in passing, that the affidavit under consideration, and also the bill, disregard the fact that the statute does not authorize the mortgagee to make the affidavit,, but the holder of the mortgage. In this ease counsel on both sides have proceeded upon the assumption that, under the facts stated, the mortgagee was presumably the holder when the affidavit was made, and this assumption may be taken as fully justified.

(3) It is also objected that the affiants were, in fact, the mortgagors, and that the policy of the statute will not permit the mortgagor to act as the agent or attorney of the holder of,the mortgage.

In considering this objection the exact facts of this case must be borne in mind. No transfer of the mortgage or of the mortgaged property appears to have been- made after the execution and delivery of the mortgage and the making of the affidavit. The mortgage and the affidavit bear the same date. It would seem, therefore, that we must consider this case as presenting an effort on the part of a person, when making and delivering a deed, to act, not only for himself, but also as agent for the party who receives the deed. But without further discussing this difficultjr, I think the point is well taken that the mortgagor of chattels, .under our statute, is disqualified from acting as agent for the holder of the mortgage in making the validating affidavit prescribed by the statute, so long at least as his relation to the mortgage and the mortgaged property remains unchanged.

The situation is this: The mortgagor has already executed and delivered an instrument which, under the rules of the common law, was fraudulent as against subsequent creditors and purchasers. Twynes1 Case, 3 Rep. 80; 1 Sm. Lead. Cas. 1; Edwards v. Harben, 2 T. R. 587; Chumar v. Wood, 1 Halst. 189; Runyon v. Groshon, 1 Beas. 86; Miller v. Pancoast, 5 Dutch. 250.

While the Chattel Mortgage act declares an unrecorded mortgage upon chattels left in the possession of the mortgagor to be void, it would seem that the history of the whole law of the subject justifies the statement that what the Chattel Mortgage act in fact did when it was first enacted was to reinstate the original common law doctrine that such an instrument was fraudulent as against creditors and purchasers, and at the same time to provide a means by which the injurious effect of that doctrine, which had brought about its modification, could be obviated.

This view, perhaps, was not recognized or may have been rejected by Chancellor Runyon in Shaw v. Glen, 10 Slew. Eq. 32.

But whether the taint in a chattel mortgage, to which our statute applies and which fails to meet the requirements of that statute, is to be regarded as a taint of fraud or a taint of statutory invalidity, the result is the same. The mortgagor has made a conveyance of his property which is fraudulent, or at any rate void as against his creditors. No act on his part can remove the stamp of illegality from this transaction or purge the instrument which, he has executed of its taint. Only the holder of the mortgage who is usually the other party to the transaction which resulted in the giving of the mortgage or the agent or attorney of that holder, can cure the instrument of its defect. It would be a most extraordinary result, indeed, if this statute could be so construed as to enable the mortgagor, whose fraud the statute intends to prevent, to execute, acknowledge and deliver an illegal instrument, and then at once remove the taint of illegality by his own affidavit.

Whatever may be the requirements of chattel mortgage acts of other states in reference to this validating affidavit, it is plain that our statute passes by the mortgagor, the maker of the suspected conveyance, and calls upon the other party to the transaction, the. holder of the mortgage, or his agent to swear to its true consideration. In my opinion one great purpose of the statute would be evaded if the holder of the mortgage could constitute the maker of the mortgage, his agent or attorney, for any purpose so as to qualify him to make this necessary affidavit. Whether the disability of the mortgagor to act as agent for the holder of the mortgage remains after the mortgagor has transferred his interest, or ceased for any reason to become interested in tlm mortgage or the property covered by it, we need not now inquire. In this case the affidavit was made by the mortgagors on the same day on which they made the mortgage. The making of the mortgage and the taking of the affidavit might almost be regarded as parts of a single transaction and no transfer of the interest of the mortgagors in the mortgaged chattels appears to have been made until the general assignment was executed to the defendant Speer.

(4) The next question is whether the defendant Speer, the general assignee of the mortgagors for the benefit of their creditors, belongs to a class of persons as against whom the statute denounces this mortgage as “absolutely void.”

If this question arose under the Assignment act of 1874 (Gen. Stat. p. 77) it would be answered in this court in the negative in accordance with the views expressed by Yice-Chancellor Emery in the case of Wimpfheimer v. Perrine, 16 Dick. Ch. Rep. 126, the last reported case under the provisions of the above-cited statute. But the assignment in this case was made February 7th, 1902, and therefore is controlled by the act concerning general assignments (P. L. of 1899 c. 5k), which as yet has not been dealt with in any reported case. The old Assignment act which was first passed in 1820 and remained unchanged in theory till 1899, was based upon the idea of a judicial regulation of a trust created by the assignor and impressed upon his (the assignor’s) property. Generally speaking, the assignee took what the assignor had to give, no less, no more, and realized from the estate committed to his charge, on behalf of his beneficiaries, the assignor’s creditors, only what the assignor might have realized on his own behalf if no assignment had been made. To what extent exceptions were allowed to this general principle, based upon the doctrine of Pillsbury v. Kingon, 6 Stew. Eq. 287, need not now be discussed.

The revision of 1899 proceeds upon an entirely different theory. The assignor initiates the proceeding by which his property is devoted to the payment of his debts through the instrumentality of a trustee called an assignee, precisely as the voluntary bankrupt initiates the proceedings by filing his petition. But when the assignment has once been made, the theory of the new statute is that the claims of creditors are enforced as beneficially as if they were all united in a judgment against the assignor levied upon his estate at the date of the assignment, as if the trust were founded on an involuntary transfer of property from the assignor. The distinction between the power of the assignee to set aside conveyances and the power of a receiver of an insolvent corporation to do this thing, illustrated in the cases of Shaw v. Glen, supra, and Receiver of Button Co. v. Spielmann, 5 Dick. Ch. Rep. 120, 796, is abolished. The act in the fifteenth section provides as follows:

“The said assignee in addition to the powers which he may exercise as the successor to such assignor shall also at all times be the representative of the creditors of such assignor, and shall have the same power to set aside conveyances and to recover or reach assets for the benefit of the creditors of such assignor as a creditor of said assignor would have who had recovered a judgment against said assignor at the date of said assignment, and all conveyances, mortgages and transfers of property, real or personal, made by the said assignor, which are void or voidable as against the creditors of such assignor, snail in like manner be void or voidable as the case may be as against the said assignee.”

The theory of this statute is further illustrated by other provisions, such as those of the sixteenth section, which make all preferences made by the assignor within two months before the assignment void as against the assignee and the amount thereof recoverable by him. In the seventeenth section it is provided that the holders of two-thirds in amount of the indebtedness entitled to a dividend may have the assignee named in the deed of assignment removed and their appointee substituted in his place.

Under this General Assignment act of 1899 it is manifest that the chattel mortgage exhibited by the bill of complaint in this ease is void as to the defendant Speer, the general assignee of the mortgagor.

(5) The last question to be determined is whether the bill of complaint can be retained for any other purpose than that of enforcing this chattel mortgage as a lien prior to the title and interest of the general assignee as the representative of the assignor’s creditors.

It is urged on behalf of the complainants that the chattel mortgage is good as against the mortgagors, and therefore the bill should not be dismissed. The motion is merely to dismiss the bill as to the defendant Speer, the general assignee. This is the only matter now before the court.

It is also insisted that the bill does not show that there are any creditors of the mortgagors. The bill, as recited above, expressly alleges that the mortgagors made this assignment of all their property “for the benefit of their creditors.” If the mortgagors did that thing, as alleged, there must have been creditors in existence.

The. most serious claim, that the bill should be retained as against the defendant Speer, is based upon the insistment that it does not appear that the mortgaged chattels in suit are required for the payment of claims of the creditors who are the beneficiaries of the assignee. It is urged that if the assignee has other assets which are sufficient to pay the debts of the estate, he should not be allowed to contest the mortgage which is valid as between the mortgagor and the mortgagee.

This argument, I think, is fully answered by the proposition that if any of these things are true which are suggested as possible on behalf of the complainant, they should have been alleged in the bill of complaint. The bill is not filed to have any marshaling of assets—to have-the assignee, who has a quasi mortgage title upon other property besides that included in this chattel mortgage, compelled to resort to that other property first. Nor is the-bill filed to procure a substitution of the holders of the mortgage for the mortgagors, as beneficiaries under the general assignment, so as to intercept any residue of proceeds of sale of the mortgaged chattels after the satisfaction of the claims of all creditors which would otherwise go back to the assignors. The whole object of the bill is to enforce this chattel mortgage against the rights of the defendant Speer as the representative of creditors under the general assignment. The complainants are, or may become at any time, beneficiaries under the general assignment and the defendant Speer is their trustee. This court may be open to the complainants for the recognition and enforcement of any such equities as, on the argument, it has been hinted they possibly may have.

I shall advise that the bill of complaint be dismissed as to the defendant Speer.


source: Caselaw Access Project

author: Mague, Ordinary.

license: Public Domain

text:
    John L. Conover, appellant, v. Holmes V. N. Dennis, Jr., et al., respondents.
    [Filed July 16th, 1901.]
    When a devise of real estate is made subject to a charge that the devisee should pay to testator’s executors, in one year after testator’s decease, the sum of $10,000, and if said real estate should be encumbered by mortgage or mortgages at testator’s decease, the devisees should take the same subject to said mortgage or mortgages to an amount not exceeding $10,000, and in case such mortgages should be for less than $10,000, then to take the real estate subject thereto and pay the difference between the amount of said mortgage or mortgages and said charge of $10,000.—■ Held, that the estate of testator is liable for the interest of a mortgage encumbering said real estate during the year subsequent to testator’s death.
    On. appeal from the Monmouth county orphans court. ■

      Mr. John L. Conover, pro se.

      Mr. Holmes V. N. Dennis, pro se.

   Mague, Ordinary.

Appellant is the executor of the last will and testament of Stacy P. Conover, deceased, and is interested in the provisions made thereby. Respondents are also interested therein.

The appeal is from a decree of the Monmouth county orphans court allowing an exception interposed by respondents to a charge contained in an account presented by appellant as executor. The charge was for the amount of $300 paid by him as interest for one year from the death of testator upon a certain mortgage for $5,000. The transcript shows that the payment was excepted to on the ground that the estate was not changeable with it.

It appears by the will and stipulation of counsel that the mortgage in question was an encumbrance upon a certain farm and tract of woodland, of which testator died seized, and secured some obligation of testator; that testator, by his will, devised the farm and woodland to appellant for the term of his natural life and to the children of appellant in remainder; that the devise was in the said will expressed to be

“subject, however, to the following charge: that the devisee or devisees, as the case may be, of said farm and tract of woodland shall pay to my executors hereinafter named, in one year after my decease, the sum of ten thousand dollars, which said sum of ten thousand dollars I do hereby make a charge and lien on said farm and tract of woodland until paid or otherwise satisfied; and it is my will, and X do order and direct, that if at the time of my decease there shall be a mortgage or mortgages upon said farm then that the devisee or devisees, as the case may be, of said farm and tract of woodland, may take said farm, as above devised, subject to said mortgage or mortgages to an amount not exceeding said sum of ten thousand dollars; and in ease said mortgage or mortgages should be for less than ten thousand dollars then to take said farm subject thereto and pay the difference between the amount of said mortgage or mortgages and said charge of ten thousand dollars in cash to my executors.”

Eespondents claim that the payment of the interest in question was not properly chargeable to the estate of the deceased, but should have been made by appellant himself, as a tenant for life of an encumbered estate. The doctrine that a tenant for life must keep down encumbrances is applicable as between him and the remaindermen. It has no applicability to the situation presented in this ease. The question whether the interest upon the mortgage encumbering the devised lands for the year following testator’s death should be paid out of the estate of testator, would be as forcibly presented if appellant had died the day after testator, and the estate of appellant’s children, or some of them, had become vested in possession. The question presented must be solved by ascertaining .the true construction of the will in imposing upon the devisees of this land the payment of money to the executors as a condition of the devise.

If at testator’s death the land had been unencumbered by mortgage, no possible question could be made but that the devisees would entirely satisfy the condition imposed thereon by the payment of $10,000 within one year from testator’s death, without interest.

What was the testator’s intent in case he died leaving the farm encumbered by mortgage ?

If the land, at testator’s death, had been encumbered by a mortgage for precisely $10,000, did he intend that the devisees should take the land subject to that encumbrance as of the date of his death, or as of the date of one year later, when, under the previous clause, devisees could have satisfied the condition by the payment of $10,000, without interest?

I think that the testator has indicated what his intent was by the statement that the devisees in such case were to take the farm “as above devised, subject to said mortgage or mortgages to an amount not exceeding the sum of $10,000.” The intent shown was that the devisees should take the land, and, if unencumbered, pay the charge in one year, without interest, but if encumbered by an equal sum, to take the land at the face of the encumbrance, not then exceeding the charge. This would cast upon the estate the payment of the interest for the intervening year.

A like intent is discoverable in respect to the case which has occurred and is now presented. There was in existence at the testator’s death an encumbrance upon the land for less than $10,000. The amount which devisees are then to assume is part of the $10,000, and the balance may be satisfied by the pajunent of the difference between the amount of the “said mortgage” and the charge of $10,000.

In respect to the case in hand, it is also to be observed that if the language of the clause providing that they should “take said farm subject” to a mortgage for less than $10,000 should be construed to impose upon them the interest from testator’s death, as well as the principal of the mortgage, a like result would be reached because the cash payment, when it came 'due, would be satisfied by paying the difference between the mortgage assumed and $10,000. But as this construction could not be applied in the case of an encumbrance to the full amount of $10,000 without running counter to testator’s clear intent, I think the other construction is to be preferred.

It results that the order of the orphans court was erroneous, and must be reversed.


author: Magie, Ordinary.

text:
    David F. Barkman, appellant, v. Edith M. Richards, respondent. William H. Benjamin, appellant, v. Edith M. Richards, respondent.
    [Filed July 22d, 1901.]
    1. A testator who was weak-minded and easily influenced, and who was iñ the last stages of consumption, went to live with a boyhood friend, an active business man, of acute mind. About a month later the testator made his will, leaving all his property to his friend, with whom he was living, and not mentioning a sister, his next of kin. The will was drawn by a lawyer who was named as executor and with whom the beneficiary had his office, and the beneficiary brought written instructions from the testator to the lawyer for the disposal of the property.—Held, sufficient to establish that the will was executed under' the undue influence of the beneficiary.
    2. AYhere a beneficiary under a will occupies a position of trust and confidence towards testator, the burden of proof is on him to show that the will was executed without any undue influence.

      Mr. David F. Barlcman and Mr. Willard W. Gutter, for the appellants.

      Mr. Mdhlo n Pitney, for the respondent.
   Magie, Ordinary.

These two appeals were taken from a decree of the Morris county orphans court, refusing probate of an instrument offered for probate as the will of Jonathan Edwards Eichards, deceased.

Barkman was named as the executor in said instrument, and Benjamin is the principal beneficiary thereunder. The appeals presented the same question and were argued together.

The legal principles applicable in this case are not in dispute. The appeals present only questions of fact, and require a determination whether there was error committed in the court below in its deductions from the voluminous evidence presented before it, or in the application of the settled and admitted principles of law.

It is a matter of regret that I am not favored with any opinion of the court below indicating the grounds upon which it arrived at the conclusion that, the instrument offered should not be admitted to probate.

I will briefly express the conclusions I have reached:

First. At the execution of the paper-writing, the deceased was in possession of such testamentary capacity as he had, and his mind was not affected by the disease under which he was then suffering.- The paper in question was shown to have been executed with all the formalities required by law to make it a valid testamentary disposition.

Second. The proofs also indicate that the deceased possessed such degree of capacity as, under our liberal rules, enabled him to make a valid disposition of property by will.

But the evidence also discloses that he was a man of weak mind and of an intellect below the average. He was infirm of purpose, and, although he had had the opportunity of education, he had (whether from inability to learn or from his reckless disposition does not clearly appear) acquired merely the rudiments of education. He possessed no business qualifications, and out of the small income which he had, it is shown by the evidence that he, had been led into ill-advised and absurd purchases. The evidence indicates what several of the witnesses express, that while he had attained the state of a grown man, he remained a mere boy, childish in his disposition and heedless in his conduct. It further appears that he was easily influenced and led by those who were in immediate contact with him.

Third. As deceased possessed testamentary capacity, and the instrument was duly executed according to law as a will, it should have been admitted to probate, unless the claim of respondent' (who is liis sister and next oi kin, and who filed a caveat against •its probate) that it was not the will of deceased, but was produced by undue influence of the principal beneficiary, is sustained by the proofs.

Primarily, the burden of establishing a charge that a paper-writing was procured from the person who executed it by undue influence rests upon the party who asserts it. But when a will confers a benefit upon one who occupied, in respect to the deceased, a position of trust and confidence, and particularly when the deceased was of weak mind and subject to influence, and the beneficiary has the opportunity to exert such influence, the burden is cast upon him to show there was, in fact, no undue influence. Dale v. Dale, 11 Stew. Eq. 274.

The deceased became an inmate of the family of Benjamin about Christmas, 1899, when he was in the last stages of consumption. He remained an inmate of Benjamin’s family until his death, March 29th, 1900. The disputed writing was executed January 27th, 1900. The evidence discloses that Benjamin, the beneficiary, is a man in active business, intelligent and acute. He was not a relative of the deceased, nor, although they were boys together, does the evidence disclose that there had been any previous close intimacy between them. It thus appears that the beneficiary, a man of active, strong mind, had the opportunity to influence a man of weak mind, susceptible of influence, and in the last stages of a mortal disease.

Benjamin was asked by the deceased, shortly after he became an inmate of the family, to procure him a lawyer for the purpose of making discovery with respect to the right of deceased in certain trust funds in the hands of a relative of deceased, and especially whether deceased had received or was receiving the proper allowance from the trustee. Benjamin recommended the employment of Barkman, who shared with Benjamin an office in Morristown. Benjamin took the deceased upon one or more occasions to the office, and Barkman, under the employment of the deceased, commenced some proceedings with respect to the trust. It appears that during the proceedings respecting the trust, the deceased proposed to make a will. No instructions were then given, but afterwards Benjamin informed Barkman that the deceased desired Mm to come to Benjamin’s house to take such instructions. Barkman was- unable to go at once, and suggested-to Benjamin that the .deceased should send him written instructions. Such instructions were written by the deceased, and the paper was produced in the case. It was couched in these words:

“My interest in New York City property I will to my friend Mr. William H. Benjamin.
“All my personal property that belongs to me at the time of my death I will to my friend Mr. William H. Benjamin.”

Benjamin took this paper to Barkman, and Barkman advised him (1) that there should be an executor of the will appointed, and (2) that it was advisable that the will should contain a legacy of some amount to the respondent, known by both Benjamin and Barkman to be the sole next of kin. What then occurred is not clear. Barkman says that Benjamin proposed that he (Barkman) should be made executor. Benjamin says that he jtroposed to consult the deceased, and did consult the deceased, and reported to Barkman that the deceased desired him to be the executor. With respect to the legacy to the sister, the inference is justifiable that it was advised by Barkman, with a knowledge that it might be contended that deceased did not possess testamentary capacit}», and. with an idea that the inclusion of a legacy to the sister would indicate that he knew the relative to whom affection would naturally prompt some benefit, and limited the benefit to the amount of the legacy.

It further appears that Benjamin continued to transmit messages from the deceased to Barkman and from Barkman to the deceased, and that Barkman made a draft of a will which came into the hands of deceased by the medium of Benjamin. It further appears that Barkman plainly, without further instruction, redrafted the will, and went to Benjamin’s residence with the redrafted paper. That was the will which was executed by the.deceased,-and the previous draft was destroyed. No satisfactory explanation seems to be given of the redrafting of the instrument. -

These and other facts, which clearly appear in the evidence, in my judgment, justify the inference that Benjamin, from the ■time that deceased became an inmate of his family to the time of the execution.of the will, occupied a position respecting this weak-minded person which was a relation of trust and confidence, and that to establish this will, the burden is upon Benjamin to show that it was executed by the deceased without undue influence, dominating him to make this will which ignored his relatives and gave practically his whole estate to a comparative stranger.

I have examined the evidence with care, with the result that I conclude that Mr. Benjamin has not sustained the burden which the circumstances cast upon him. Although his evidence professes to give a frank and full statement of the intercourse between him and the deceased and to repudiate the idea that he exerted influence upon the deceased, I feel obliged to conclude that a full disclosure has not béen made, and that what is disclosed clearly indicates that influence was exerted, and exerted by him. When the deceased was informed by Benjamin that Barkman suggested the legacy to .the sister, Benjamin admits that the deceased was unwilling to make such a bequest, yet he did yield to the suggestion and made such a bequest, and plainly he did so because of the influence of Benjamin or Barkman, acting after his interview with Benjamin. Besides, when I compare the letter written .December 16th, 1899, by the deceased to Benjamin, which is plainly the writing of a man of inconsequential mind, with the instructions written by deceased and carried by Benjamin to Barkman, I find it impossible to believe that the instruction was so written without coaching or suggestion from someone.

These and other circumstances lead me to the conclusion that Benjamin has failed to sustain the burden of proof cast upon him, and that the paper-writing produced and executed by Jonathan E. Eichards ought not to be considered his will or admitted to probate as such.

The decree below must be affirmed.


text:
    Howard Voorhees, appellant, v. David C. Sharp et al., administrators of Lucas Voorhees, deceased, respondents.
    [Filed July 22d, 1901.]
    An intestate left surviving him a widow but no children. He was also survived by brothers, sisters and the children of deceased brothers and sisters. Upon proceedings to distribute the surplusage of his estate in the hands of his administrators, it was made to appear to the orphans court that the intestate had had a daughter who had predeceased him, leaving one child born out of lawful wedlock.'—Held, that such child was not entitled to be considered in the decree of distribution.
    On appeal from Hunterdon county orphans court.

      Mr. George II. Large, for the appellant.

      Mr. Harlem G. Chamberlin, for the'respondents.
   Magie, Ordinary.

The appeal is from a decree of the orphans court for the distribution of the estate of Lucas Voorhees, deceased, in the hands of the administrators.

The proofs before the orphans court disclosed 'that when Lucas Voorhees died he left a widow, but no children, surviving him. He was survived by brothers and sisters and by children of deceased brothers and sisters:

It is conceded by counsel that the decree brought in question distributed the estate among the widow and surviving brothers and sisters and the children of deceased brothers and sisters of the intestate, in the precise manner prescribed by the provisions of paragraph 1 of section 169 of the act entitled “An act respecting orphans courts and relating to the powers and duties of the ordinary and the orphans courts and surrogates” [Revisión of 1898], approved June 14th, 1898. The above section of said act was amended by an act approved March 22cl, 1899, but was not altered in any of the respects brought in question by this appeal. It is admitted by counsel that the decree is unassailable unless a further fact, which was made to appear in the court below, indicates error therein.

The fact relied on as indicating error in the decree is that Lucas Yoorhees, the intestate, had had a female child, who had predeceased him leaving the appellant, who was her illegitimate child not born in lawful wedlock. The mother never married and had no other child.

The argument is that under the provisions of paragraph 5 of section 169 above referred to, the appellant has been made a legal representative of his mother and therefore one to whonr distribution should have been made under paragraph 1 of the same section.

At common law a bastard is deemed of kin to nobody. 1 Bl. B. Jt¡59. Our statute of distributions has, from the earliest times, provided that the surplusage of the estate of an intestate shall, under certain circumstances, be distributed to his child or children. No one ever supposed or contended that this provision extended to a child born out of lawful wedlock. On the contrary, this court has held that the lawful issue of a bastard child, who had predeceased her father, was excluded from the distribution of the father’s estate. Bussom v. Forsyth, 5 Stew. Eq. 277.

The status of a bastard, as to the transmission of property to or from him, was fixed bjr the common law brought to 'this country by our ancestors, and administered here until the legislature passed acts intended to ameliorate the unfortunate condition of those who were born out of lawful wedlock. The act designed for that purpose was a supplement to the act which contained the existing provisions for the distribution of intestates’ estates. It was approved March 22d, 1865. P. L. of 1865 ¶. 468. Its first section enacted the provisions now contained in paragraph 6 of section 169 of the Orphans Court act of 1898. Its second section enacted ’the provisions now contained in paragraph 5 of said section.

It is obvious that the present slalus of a bastard, as to the transmission of property to or from him, is to be discovered in the legislation above referred to. The courts can neither limit nor extend such legislation, but can only construe its terms and fix their applicability.

Such was the view taken in the court of Massachusetts. Kent v. Barker, 2 Gray 535; Pratt v. Atwood, 108 Mass. 40. Under a statute of that state providing that every illegitimate child shall be considered as the heir of his mother, it was held that the lawful issue of an illegitimate child who had died before liis mother, could not inherit the mother’s estate. Custis v. Hewins, 11 Metc. 294.

, It is to be noted also that the discussion of the court in Bussom v. Forsyth, ubi supra, was made subsequent to the enactment of the act of 1865, above referred to.

Turning to the provisions of paragraph 5, relied on by appellant, this observation at once occurs. Its operation is confined to the transmission of goods, chattels and personal estate of a mother to her illegitimate child when she dies without leaving a husband or lawful issue, or the issue of any. By its express terms the legislation is limited to the property of the mother and does not extend to property which, as in this ease, never became the mother’s: It cannot be considered as intended to change by implication the provisions of paragraph 1, which had been always construed in practice as excluding bastards from distribution because they were not children within the meaning of the act, or did not legally represent anyone.

The result is that the decree appealed from must be affirmed, with costs.


text:
    The Equitable Life Assurance Society of the United States, appellant, v. Ruth C. Chesley, administratrix of William P. Chesley, deceased, respondent.
    [Filed July 22d, 1901.]
    1. AVhen an administrator has neglected to make a final settlement of his account within one year after administration granted, a creditor of the estate barred by a decree of the orphans court, who has presented a petition to the orphans court praying relief under the provisions of section 80 of the act entitled “An act respecting the orphans court and relating to the powers and duties of the ordinary and the orphans courts and surrogates” [Revision of 1898] (P. L. of 1S9S p. 115), may except to any matter in a final account, which, if the exceptions are sustained, will enhance the assets in the hands of the administrator from which it may obtain the relief prayed for.
    2. If exceptions so presented are directed to payments which the administrator might lawfully make, they cannot be sustained in the absence of proof that the creditor had presented its claim under oath to the administrator, or proof that the administrator had knowledge of the claim and the intent of the creditor to insist on its payment out of the estate in the administrator’s hands.
    On appeal from Hudson county orphans court.

      Messrs. Lewis, Besson & Stevens, for the appellant.

      Mr. Charles L. Gorlin, for the respondent.
   Magie, Ordinary.

The order appealed from overruled exceptions by appellant to the final account of respondent, presented by her to the orphans court of Hudson county, by which court she had been appointed administratrix of her husband, William P. Chesley, deceased. The exceptions were directed to certain payments made by tlic administratrix and claimed to discharge her for the amount so paid. The question presented by the appeal is whether the order 'overruling the exceptions was properly made.

The particular items of the account excepted to were payments made by the executrix to the widow and heirs-at-law of the intestate. Upon the evidence sent up with the transcript, it appears that the payments excepted to were made under the following circumstances: The intestate died seized of real estate subject to a mortgage for $10,000. Having died intestate, the lands in question descended to his heirs-at-law, subject to the dower right of his widow. The heirs-at-law and the widow united in the payment of the mortgage upon said lands, and thereafter filed a claim, under oath with the administratrix, claiming to be reimbursed for their payment of the said mortgage, from the personal estate of the deceased. The payments excepted to were made by the administratrix in response to said claim. They substantially exhausted the estate in the hands of the administratrix.

The first question presented, in my judgment, is whether the appellant had a status to except to the final account of the administratrix. The transcript exhibits a petition of the appellant presented to the orphans court, and asserting that it was a creditor of the intestate. But it is thereby admitted that its claim as a creditor was not presented under oath to the administratrix. The evidence before the orphans court disclosed by the transcript shows an order requiring creditors to present their claims to the administratrix within a specified time. As the appellant admits that it did not present any cláim to the administratrix, it follows that it did not present a claim within the time limited by the order. The transcript further shows that after the expiration of the time limited by the order, a decree was made by the orphans court to bar creditors who had not presented their claims in the manner required by law. Appellant is therefore barred.

The question then is whether the appellant, having failed to present its claim in the manner required by law and having been barred by the decree, was entitled to intervene and object to the final account of the administratrix.

As the final account of the administratrix had not been presented, or passed and approved, the case does not fall within the provisions of section 72 of the act entitled “An act respecting the orphans court and relating to the powers and duties of the ordinary and the orphans courts and surrogates’' [Revision of 1898], approved June 14th, 1898. P. L. of 1898 p. 715. Nor does it fall within the-provisions of sections 77, 78 and 79 of the said act.

But by the provisions of section 80 of said act, it is provided that if an administrator shall neglect to make a final settlement within one year of the time of his’administration being-granted, a creditor who shall be barred by a decree of the orphans court may present a petition to the orphans court alleging the facts and praying relief. It is further provided that the court may investigate the circumstances and condition of the estate, and if it be made to appear that the delay was unreasonable, the court may, by decree, give the creditor relief against any assets in the hands of the administrator in the nature of the relief which he would be entitled to in case the final account of the administrator had been passed and a refunding bond taken for a legacy or distributive share.

The transcript shows that respondent did not make a final settlement within one year from the time of administration granted, and that appellant presented a petition which, as before stated, asserts its status as a creditor of the intestate, although it admits that it had not presented to the administratrix its claim under oath in the manner required by law and had been barred by the decree of the orphans court, and prays relief under the circumstances. By the provisions of section 80, it appears that the relief permitted respects assets in the hands of the administratrix, and it is to be accorded in the nature of relief upon refunding bonds.

As the relief accorded by the statute affects the estate in administratrix's hands, it seems to me to follow that a creditor asserting his rights as such by such a petition, although he admits that he has not presented his claim under oath to the administratrix, and has in fact been bound by the decree barring creditors, may question the final account of the administratrix in respect to any matter which, if the exceptions prove correct, enhances the estate in the hands of the administratrix and permits a claim of the creditor upon the assets in the hands of the administratrix under the provisions of section 80.

It follows, in my judgment, that a creditor who has presented such a petition, acquired a status to except to such a final account in respect to any matter which would surcharge that account for his benefit.

The appellant, in my judgment, was entitled to exhibit the exceptions which were overruled by the orphans court.

As before stated, the items of the administratrix’s account which were excepted to were for payments made upon a bond of intestate, secured by mortgage, upon real estate which, upon his death, devolved upon his widow and heirs-at-law. The mortgage having been paid by the widow and heirs-at-law, they claimed and the administratrix admitted that they were entitled to be reimbursed out of the personal property of the intestate in her hands.

The theory upon which such payment is supported is that the personal estate of a deceased person is the primary fund for the payment of obligations of such person; that if such obligations are not paid out of the intestate’s personal estate, and are paid by the owners of the real estate, the latter may assert a right to remuneration from the personal property of the intestate, and the personal representative of the intestate may remunerate the devisees or heirs-at-law for payments made by them in exoneration of the estate of the intestate from his personal obligations.

It is said that a personal representative may not pay out of the personal estate of a decedent in exoneration of property specifically encumbered for the payment of such indebtedness of decedent, to the injury of other creditors having a like interest in the intestate’s estate. This is upon the theory that assets should be so marshaled that debts which are secured shall be enforced upon the security, to the exoneration of the fund out of which general creditors may be paid. B Wms. Ex. §§ l^B, U57 ei seq.

By existing legislation in this state, all debts of decedents may now be charged upon the real estate of which they died seized. as well as upon the personal property of which they died possessed, if such personal property is insufficient to satisfy them. A mortgage upon real estate imposes upon it the debt secured thereby, and it may be that, upon a timely application, a general creditor may require a particular debt thus secured to be enforced upon the security before it or any part of it may be imposed upon the personal property to the injury of general and unsecured creditors.

But the case presented by the transcript not only fails to show that the appellant is in fact a creditor of the deceased, or that it had given notice of the fact that it was such creditor to the administratrix, but contains an admission on the part of appellant that its claim had not been presented under oath, in the manner required by law, and had been barred by the decree against creditors.

Under those circumstances, the claim of the appellant was not within the official knowledge of the administratrix when she made the payments which were excepted to.

The payments made by the administratrix which were excepted to were made to persons entitled to be paid, and in remuneration of payments made by them upon the indebtedness which was primarily to be paid by the personal estate.

The administratrix, if appellant’s exceptions are sustained, would be unable to procure reimbursement from the persons to whom she had made payment upon an existing lawful indebtedness. Such payment was made in ignorance of the fact that appellant intended to prosecute the estate for the amount of the indebtedness which it now claims. Under those circumstances, while I agree that under the provisions of .section 80 of the act above referred to, an exception can be considered by the court in the ease presented, I also agree with the court that the exceptions are unavailable to surcharge the account of the administratrix with the payments made by her upon a valid claim, which payments she cannot recover if the exceptions are sustained.

The result is that the decree appealed from was properly made and must be affirmed.


author: Reed, Vice-Ordinary.

text:
    Julius S. Edwards et al., appellants, v. Theodore, E. Edwards, respondent.
    [Filed July 15th, 1901.]
    Testator was ninety years of age and exhibited a mental decline, accelerated by his wife’s death. Previous to making his will he had executed others, making almost an equal distribution among his sons. Testator and one of his sons had been in business, and in the former will the gift to such son was conditioned that he cancel a bond due him by testator. Three days before the last will was executed, testator signed a paper directing all unsettled accounts between him and such son, after his death, to be referred to arbitrators, waiving limitations. Testator’s children, except such son, were not with him when the last will was executed, and under his direction it was concealed from them. By such will an equal distribution of the estate was made, but the portion of such son was to be in addition to the amount due him by testator.—Held sufficient, in view of testator’s mental condition, to warrant the setting aside of such will for undue influence of such son.
    On appeal from a decree of the orphans court of Cumberland county admitting to probate a will purporting to have been made by Steen Edwards.
    Mr. Robert 8. Schiller, Mr. James J. Reeves and Mr. David J. Pern coast, proctors for the appellants.

      Mr. James S. Ware, proctor for the respondent.
   Reed, Vice-Ordinary.

Steen Edwards died April 24th, 1900. On March 20th preceding his death the will in question was executed. By it he left his property to his eight children, all sons. Five of them filed a caveat in the surrogate’s office and now prosecute this appeal.

The grounds of attack are mental incapacity of the testator and undue influence exerted upon him by his son Theodore E.

At the date of the making of the will the testator vas a very old man—ninety years of age. For a period preceding his death, reaching back several months, he had exhibited a progressive mental decline. The death of his wife on the 26th of the preceding December had accelerated this deterioration. He was by habit and affection strongly attached to her, and her death worried and perplexed him, and increased his confusion of thought. The evidence is plenary that events and words made but a transient impression upon his brain. He failed to recognize his own children. He would ask the same question over and over again, after repeated answers. He thought his wife was still living. The testimony of his housekeeper and others not interested in the result of this litigation, shows beyond question that the general mental condition of the testator at the time he signed this will was one of great confusion of ideas, of inability to think consecutively and of forgetfulness of his surroundings. Even Theodore E. admits that after his wife’s death the testator did not know where he was or what had happened. It is true that he filled up and signed checks as late as February 24th, but this seems to have been merely mechanical, for his son Yaldemar says, and I have no doubt truly, that he dictated the written portions of those cheeks. Yaldemar’s testimony tallies with that of the collector for the gas company, who tells of the unsuccessful attempts of the testator, when unaided, to prepare a check for the amount of his gas bill. His family physician says that he was not capable of testamentary disposition after the death of his wife. His conversation with him was confined, it is true, to professional inquiries concerning his symptoms, but the testator’s answers to those inquiries were calculated to impress the physician with a low opinión of the testator’s mental condition. His testimony is that he was afflicted with the confusion and slowness and inability of thought which accompanies very old age, coupled with physical infirmities.

The two witnesses mainly relied upon by the respondent to show that the testator had testamentary capacity are Dr. Ware, who did not attend him as physician, but talked to him as an acquaintance, and Mr. James S. Ware, who drew the will in question.

Dr. Ware says that the testator had some of the symptoms of senile dementia. He, 'however, details a conversation which he had with the testator, after the death of his wife, in which conversation he says that the testator was entirely rational. The conversation undoubtedly shows that the testator knew that his wife was dead; that he was depressed by her death, and that on account of her death he thought of making another will. The. subjects discussed were, however, within very narrow limits, but upon these subjects he talked sensibly.

Mr. Ware, who drew the will, states that the testator described his property and gave him the names of his sons, and instructed him as to what he wished the will to contain. He is of the opinion that the testator was entirely competent to make a will. The impression of Mr. Ware as to the testator's capacity is quite different from that of Mr. Reeves, who had been for a long period the counsel for Mr. Edwards. Mr. Reeves says that Mr. Edwards was demented and incapable of any business transaction whatever. Both these gentlemen are proctors in the case, and while highly honorable practitioners, their testimony must be discounted by the unconscious influence of a desire for victory, which naturally shades the opinions of any witness who is at the same time of counsel in the cause.

Mr. Ware says that Mr. Edwards went into an elaborate description of the property he owned. There is, however, no description of his property contained in the will, nor, as the will was drawn, was such a description necessary. There is nothing to show that he named all the property that he owned, for it does not appear in the will, nor does Mr. Ware give the list of properties which he says the testator described, nor does he say that he knows that the list was correct. ‘The testator did, undoubtedly, name his sons, for they are all mentioned in the will, and Mr. Ware says that he knew only two of them.

Of his eight sons only Theodore E. and Adolph afterwards lived at home. They worked in the florist business which had been organized by the father. Until 1883 Theodore E. worked for his father, and -his father had recognized an indebtedness to him by executing a bond to him for $1,283. In 1883 Theodore E. entered into partnership with his father in the florist business. This partnership continued until 1895, when the father retired, and his son Adolph took his place in the firm. Theodore E. says, that apart from living at home he had no remuneration up to 1891 beyond $875 he drew during that period; that he drew $5 a month after that date for one year, and thereafter $15 a week until 1895. In 1895, as already observed, the partnership between Theodore E. and his father was dissolved, and the business was continued by Theodore E. and Adolph. Disputes had arisen between Theodore E. and his father in respect to the management of the business, and a considerable degree of bad feeling had been engendered in the mind of the father towards Theodore E. Theodore E. says that he had tried to get an account settled between Ms father and himself concerning their partnership transaction from 1883 to 1895, but had never succeeded. The father’s dislike for Theodore E. and his preference for his other children had been manifested in a variety of wa3rs. The present will is not the first which the~testator had made. He made one on December 16th, 1890, and by it he gave all his property to his wife for life, and then directed that after her death his property should be sold, and that all the proceeds should go, one-sixth to Theodore E., Adolph, Leslie, Valdemar,- each, and one-twelfth to Julius, Odin, Devoux and Otto, each. He expressed a wish that Theodore E. and Adolph should purchase that part of the farm upon which the florist business was carried on and continue the said business. The gift to Theodore was upon the condition that he cancel the bond for $1,283, already mentioned. He named his wife, his sons Theodore E. and Odin and James J. Eeeves, his executors.

On October 15th, 1895, he made a codicil to this will, in which he substituted Adolph in place of Theodore E. and Odin, as executors. He changed the portions which he gave to his several sons. He gave to Leslie, whom he says had not received as much help from Mm as the others, two-ninths of Ms property, and to each of the other sons one-ninth. He made some change in the amount of property which he had directed his executors to sell. He finally directed that whatever might be due to Mm, by any of his children, either by judgment, book account or otherwise, should be deducted from their respective shares, and that if any of them should contest his will, such son should forfeit his share.

On June 9th, 1896, he made a memorandum of the amounts due from his sons. This memorandum was modified by another memorandum made on September 6th, 1897, and by still another made December 29th, 1897. On August 15th, 1899, he executed another codicil, drawn by Mr. Reeves, by which he gave Valdemar’s share to Valdemar’s wife. This change was made because Valdemar had creditors, and the codicil was executed, Mr. Reeves says, because it was understood that there would be no objection on the part of his sons to this disposition of the share of Valdemar, and not because he thought that the testator had then the capacity to make a will which would stand against an attack. With the exception of this codicil, the codicil of 1895 stood unchanged until the execution of the will in question.

On March 17th, 1900, three days before this will was signed, the testator signed another paper by which he directed that all unsettled accounts between himself and Theodore E. should, after testator’s decease, be referred to arbitrators to determine the amount owing to Theodore E. by testator. This paper provides also that the amount shall not be lessened by reason of the bar of the statute of limitations, which bar was expressly waived. This paper was drawn from instructions given to him by Theodore E. by Mr. Ware, who afterwards drew the will. It was signed by Mr. Edwards at his home and witnessed by the same housekeeper who witnessed the will. At this time there was none of the children at home other than Theodore E. Valdemar and wife, who had been staying with Mr. Edwards, had gone to Atlantic City to remain a few days. Three days after the execution of this paper, Theodore E. telephoned for Mr. Ware to come to testator’s house. Mr. Ware went to the house and there prepared the will which was executed in the presence of Theodore E. and the housekeeper, Valdemar and his wife being still absent. By direction of Theodore E., the execution of the will was concealed from Valdemar and the other children. Theodore E. admits that he told the housekeeper to be silent about it, and in reply to. the query why he did so, says that he did so because it was no one’s business but his own. On further questioning he says that he knew that if she told anyone about it, that some of the rest of the boys would have Mr. Reeves out there the next minute they could get hold of him, and there would be trouble all round there. This explanation of Theodore E. is perhaps the strongest testimony in the case that the testator was .in a low mental condition. Normally, he was a man of independent, indeed, of obstinate, opinions and set views. He had refused, according to Theodore E., to make any arrangement for the settlement of the accounts between Theodore E. and himself. At this time Theodore E. feared the effect of an interview between him and the other sons regarding the execution of the will. Besides, he discarded the lawyer whom the testator had always employed, and brought in a stranger. He thought that Mr. Reeves was not friendly to him because Mr. Reeves had told him, on the occasion of an interview between Theodore E., his father and himself, that he was trying to feather his own nest. It is entirely obvious that Theodore E. feared the effect of a consultation between Mr. Reeves and his father as well as the influence of the other sons in case they should be apprised of the execution of this will. Not only does this conduct of Theodore E. display his sense of the mental weakness of his father, but' the fact that his father consented to the substitution of a stranger in place of his family counsel, displays that he'was not sensible of his surroundings.

Then again, there is a feature in the will itself which, in my judgment, makes in the same direction. Mr. Ware says that, at the time of the execution of the will the testator expressed a desire to leave the children just as nearly equal as possible. As the will was drawn, all his property was to be divided equally, the portion of Theodore E. to be in addition to the amount owing by the testator to him, provision for the ascertainment of which, in the language of the will, was made in another paper. There was not a word said about the debts of the children. As already observed, in the codicil of October 15th, 1895, he provides that the debts of the children should be deducted from their respective shares. These debts, as set out in the memorandums executed of July 9th, 1896, September 6th, 1891, and December 29th, 1891, range from none against Julius and Leslie to $140 against Otto, $130 against Adolph, $1,140 against Theodore E., $1,931.62 against Devoux, and $5,140 against Odin. There is nothing to show that the amount of these debts had been changed since the execution of the last memorandum. The testator in 1895 had regarded, very properly, the charging of these debts against the share of each child, as a radical part of his scheme of testamentary division. Dj 1900 it was equally important, perhaps more so, in view of the small amount of the estate. Testator notes in his memorandum that for some of these claims there was no written evidence, and it is obvious that at the time of the execution of the last will, that most of them were uncollectible by reason of the bar of time.

I am convinced that the existence of these claims against his sons was not in his mind on March 20th, 1900. I think that while he had the power to recall the real estate around him, which was so familiar, he did not have the power to recall the terms of his previous codicil of 1895 nor the fact of the existence of the debts of his children. In my judgment this power was essential to a valid execution of the will.

In respect to Theodore Eds connection with the execution of this will, he denies that he urged or even first suggested that his father should make a will. His account is, that upon the occasion when the will was signed, his father said that he wanted to make a will and that witness asked him several questions about it, and then testator asked him if he would get somebody to make a will; that witness said that Mr. Ware would be a good one to get, and testator replied, “Well, you can get him.”

Theodore E. also says that he did not know what was in the will. If he means by this that he did not see the will and that he was not told by Mr. Ware what had been written in the will, I have no doubt his statement is true. Whether he had a previous knowledge of what was to be the contents of that will is another matter. He admits that he asked several questions about it of the testator before sending for Mr. Ware, but he does not say upon what subject the questions were addressed to the testator. He had been officious in suggesting the paper signed by his father three days before, and had had it drawn and saw that it was signed. It is in the highest degree probable that in that conversation he not merely ascertained, but suggested the contents of the will, at least in so far as the will contained a recognition of the previous paper signed by the testator. It is urged, however, that it is proven that after his wife’s death the testator had repeatedly expressed a wish to make a new will, and there is no doubt that he had so expressed himself. He had so told Dr. Davis who dissuaded him, and Mr. Eeeves who told him it was unnecessary. He had become possessed with the notion that his wife’s death made it necessary to make such a will. When told otherwise, he abandoned his intentions, then would forget and speak of it again. Besides, I have no doubt he was influenced by a vague fear that Theodore E. would make trouble. He had distrusted Theodore E. as tricky, and disliked him as overbearing. As he became weak and his power of resistance diminished, his fear of future trouble between the children took possession of his debilitated mind. This trouble he feared from Theodore E.’s masterful disposition, and his fear was augmented as his mental powers decreased. He was in a mood to do anything suggested by Theodore E., and in this mood he signed the paper of March 17th, for the first time recognizing Theodore E.’s claim against him, and provided that the amount should be ascertained after his own lips were closed by death, and without providing how the arbitrators should be chosen. In my judgment, even if the testator’s mind was such that he could have made- a will, if he had done so uninfluenced, yet the circumstances show that he never would have made this will unless influenced by Theodore E. to a degree which, in view of the testator’s mental condition, was undue.


text:
    In the matter of the application for the probate of the last will and testament of George G. Sickles, deceased.
    [Filed November 29th, 1901.]
    1. A widower, eighty years old and bed-ridden with paralysis, having five children, made a will leaving’to one son and his wife, who lived with him, nearly» all his property for their lives, influenced to do so by the threat of this son that otherwise he and his wife would leave the testator. —Held, that the w;ll was the product of undue influence.
    2. The facts that the testator, while still surrounded by the same influences, expressed his gratitude toward the beneficiaries and satisfaction with the will he had made, are not sufficient to prove the absence of undue influence.

      Mr. James E. Deg nan and Mr'. Charles II. Ivins, proctors for the proponents.

      Mr. Edmund Wilson and Mr. Frank P. McDermott, proctors for the caveators.
   Reed, Vice-Ordinary.

George PI. Sickles' died February 12th, 1901, leaving a paper signed by him purporting to be his will. A caveat having been filed against its probate, the application for probate in solemn form has been heard.

The caveators object to the probate of the paper upon the grounds—first, of imperfect execution; secondly, of want of capacity, and thirdly, that the deceased was unduly influenced to execute this paper by his son Fred., who is named as executor, and Fred/s wife, who are the principal beneficiaries. I think that the will was executed with the statutory formalities. The defendant left five children—Addie L. Davis, a daughter, Albert Sickles, John J. Sickles, Frederick Sickles and Homer Sickles, sons. Eight acres of land, upon which there was the homestead, worth between $4,000 and $5,000, two shares of bank stock, his household furniture, farm implements and stocks, constituted all his property. By the paper propounded, the two shares of bank stock are left to his son Albert, and all the rest of his property, real and personal, is left to Ms son Fred, and Euphemia, the wife of Fred., for their lives, and then to be divided between his other children. Fred, is forty-five years old. The age of Euphemia is not stated, but she is apparently no older than her husband. Each would have a life expectancy of nearly twenty-four years. There is therefore a double chance of an extension of the term beyond the period of the life expectancy of each.

The testator was, at the time of his death, eighty-one years of age. On October 16th last, within a month previous to the execution of this paper, he was stricken with paralysis which left one side of his body entirely useless. Thereafter he was unable to feed himself, to walk or to raise himself in bed. The testimony concerning his mentality after his paralytic stroke is, as usual, most conflicting. I think the weight of it is in favor of the proponents. The old man was undoubtedly a physical wreck, and his mind was naturally imparied, not only by physical decay but by the disease with which he had been stricken. He seems, however, to have had sufficient intelligence to comprehend the nature and the quantity of his property, as well as the number and identity of his children. The serious question in the case is, whether the paper propounded was the product of his own will.

The caveators insist that it was not, but was the outcome of the undue pressure upon his will, exerted by his son Fred. At the time of the execution of this instrument, with the testator lived Fred, and his wife, all his other children living elsewhere. •Fred., while still living at home with his father, married in 1884. About 1886 he moved from his father’s home at Nave-sink and with his family settled at Lower Squankum, where they lived for three years. Then Fred, seems to have returned to his father’s house, leaving his wife and children with her parents in Lower Squankum. In March, 1891, the wife of the testator died, and on April 25th, 1892, Fred.’s family moved in, at the request, according to Fred.’s statement, of the testator, who said that there was no woman to take care of him. Fred., Euphemia and the testator, thereafter lived together until the death of the latter. Fred, and his wife of course took care of him during his sickness from October 16th, 1900, when he was stricken, to the time of his death, February 12th, 1901.

The will was written by a Mr. Johnson, who was called in to write the instrument by Fred. The position of affairs thus exhibited, is that of an old man with mind enfeebled by age and paralysis, under the surveillance and care of a son and daughter-in-law, executing a will by which such son and daughter-in-law are made the recipients of practically all his property during the lives of his children. The circumstances require a full explanation from the beneficiaries of _ the circumstances surrounding the execution of this instrument, and after such explanation the question for solution is, whether the will was made in favor of Fred, and his wife as a voluntary recognition of services and care which they had rendered to him or a mark of affection for them and their family, 'or whether it was the result of importunity or coercive conduct too strong to be resisted by an enfeebled mind.

The proponents present the long period of services which Fred, had rendered to his father in living with him, working on and about the farm, coupled with the care which he and his wife rendered testator during the period of his sickness, and insist that these services and cares were the inducing cause of the father’s testamentary act. , •

It seems to be manifest, however, that Fred.’s presence at the homestead—at least up to the time of his mother’s death—was not because his father needed his services, but because he needed a home. In the language of the father, “he could be kept at home cheaper than elsewhere.” Up to the time of the testator’s stroke no word had been spoken respecting any wages or any other compensation to Fred, for services. There is, therefore, no ground for supposing that Fred, and his wife were favored because the father wished to compensate them for services rendered to him before his sickness. Indeed up to that time, if the testimony is to be credited, he" did not intend to make a will at all, having said that the law made a good enough will. Nevertheless, it may be that the testator, at the last, was so impressed with the kindness shown by Fred, and Euphemia, and also impressed with the relative incapacity of Fred., as compared with the other children, to earn a living for his family, that, induced by this and an affection for the wife and children which had grown up, through their close relationship, he did make this will, influenced by these and no other considerations. If there was nothing in the case but the circumstances already mentioned, the testimony of Fred., denying that he exerted any influence other than kindness upon the testator, might be taken as a sufficient explanation of what would seem an unnatural discrimination against the remaining children, made when the testator was liable to the control of those benefited by the will.

But there is another element in the case. Albert Sickles says that his father told him that he had made his will because Fred, and Euphemia were going away if he did not make it; and Almira Sickles sa}rs that on Thanksgiving day she found him crying and saying, “Fred, and Euphemia are going away; she is going to Fairhaven, and she won’t never Come back, and I am going to die.” Thé latter witness also says that Ered. and Enphemia both told the testator that they were going away and would not come back.

While proof of declarations of the testator that Fred, or Enphemia had told him that they were going to leave him are not evidential of this fact, they are evidential that such remarks, if otherwise proved, produced a serious effect upon the mind of the testator. Not only Almira says that such remarks were made to the testator by Fred., but that Fred., during the period of his father’s sickness, in his father’s presence, threatened to move away. Dr. Andrews says that he heard Fred, say “that he would be God damned if he was going to stand it any longer, and would take his family and go to Fairhaven.” But the most important witness in respect to such threats is Mr. Johnson, who drew the will and who had possession of it. The substance of Mr. Johnson’s testimony is as follows: He says that some days after he had drawn the will he happened to call upon the testator. The testator took him by the hand and pulled him down and said that he wished him to destroy the will he had drawn. Mr. Johnson told the testator that he did not bring it, but would go right away for it and would destroy it in the presence of'the testator.- Mr. Johnson went home, where his dinner was awaiting him, and while he was at dinner Fred.’s little girl came for him sajdng that her father wanted him to come over right away. He went and met Fred, at the door, who asked him if his father wished him to destroy the will. Upon being informed that he did, Fred, said: “If that will is destroyed I will be God damned if I don’t pack up and get out.” Then Mr. Johnson and Fred, went into the sick man’s room. There Fred, said to his father: “Pap, do you want Uncle John to destroy that will?” His father said “Yes.” “Why do you want it destroyed,” asked Fred. His father answered, “It doesn’t suit me; I sold to Bert some bank stock, and I want'him to have it right away.” Fred, said, “If that will is destroj'ed I will be damned if I don’t move.” The testator then asked Fred, to sit him up in bed, and said, “Let me talk.” He then said, “If I give you a mortgage for $500, won’t that satisfy you?” Fred, said, “No.” The old man said that if he would not take that he could not help it; and gave him the will and told him to do as he pleased with it, or something to that effect. Fred, said that he was willing that Mr. Johnson should keep it, and Mr. Johnson, took it home with him. This occurred, says Mr. Johnson, about three or four weeks after the will was executed. Although Mr. Johnson has been criticised for his relations with the caveators, I think he was scrupulously truthful.

It is true that there is no direct testimony that any such threats of removal were made at the time the will was executed, but undue influence can seldom be proved by direct testimony;, for such influences are usually covert and can only be proved by circumstances. The question is whether the proof of the conduct of Fred, at other times during his father’s sickness is sufficient to raise the inference that such conduct induced the execution of this will; for if this will was executed because Fred, had threatened that unless it was made he would leave, I cannot conceive of a more glaring instance of undue influence. The testator, shattered in mind and body, lying helpless, his other children scattered in their own homes, and he dependent upon the care of these two, was at their mercy. To him the idea of being deserted by them was the last disaster, to avert which he would be likely to malee any concession; and a will made for the purpose- of preventing it would be manifestly fraudulent. Now, if the testimony of Mr. Johnson is to be credited, such a threat prevented the destruction of the instrument on the occasion mentioned.

Proof that an intention to destroy a will was frustrated by the fraud of a person, even although that person may have been the beneficiary, will not prevent the probate of the instrument, if regularly executed. The statute has pointed out the modes in which a will may be revoked, and a mere intention to perform a statutory act of revocation is not a performance of the act itself. This is so, although the execution of the intent was defeated by the most glaring fraud. In Doe, ex dem. Reed, v. Harris, 6 Ad. & E. 209; S. C., 8 Ad. & E. 1, the testator had thrown a will in the fire from which a relative snatched it. The relative,' upon the request of the testator to deliver-the will back to him, pretended to throw it in the fire, and did not. The will was held to be unrevoked. 1 Jarm. Wills 288; Boyd v. Cook, 3 Leigh 32; Clingan v. Mitcheltree, 31 Pa. St. 25, 26.

Any relief for the heirs-at-law for such fraudulent conduct can be obtained only in a court of equity, where it has been said the devisee, who, by fraud prevented the revocation, may be decreed to be trustee for those who would have been entitled to the estate if the will had been revoked. Gains v. Gains, 2 A. K. Marsh. 190.

But while the existence of undue influence at the time of the intended revocation of the will may be insufficient to defeat the probate of the instrument, it may tend strongly to the conclusion that the same influence which prevented its revocation induced its execution. The opportunity for the exercise of this influence at both periods was exactly the same, and was at both periods practically unlimited. While it was natural that Ered. should attend to the business of the testator, it exhibits the scope of his opportunity when it is observed that Ered. saw Mr. Johnson about drawing the will, was present at its execution, and it was executed without the knowledge of the other children, and its existence was accidentally discovered by them by reason of a remark of the testator.

After the discovery by the other children of this will in Eredfs favor, the boys loudly complained, and I think it is probable that because of these complaints Mr. Johnson first visited the testator after the making of the will, and because of these complaints, it is probable that the testator desired to revoke that instrument. All the boys seemed to be fluent and forcible in speech, and their contentions made the old man unhappy and dissatisfied, but Ered., by reason of his position, had the last word and the controlling influence.

But there is another fact which bears collaterally upon the execution of this instrument. On December 11th the testator made a deed to Euphemia for forty acres of land, the best part of the farm, and the part upon which the house and outbuildings were erected. This instrument was written by Ered., who says that the deed was prepared by the direction of the testator because of the threats made by the other children that they would law away the estate to break the will. I have no doubt that the position taken by the other brothers in respect to the will induced the execution of the deed, but that the suggestion that the latter should be executed was that of the testator, unaided, I do not believe. The execution of this deed and the circumstances surrounding it are, of course, only important as exhibiting the mind of the testator and his relations with the beneficiaries under the will during his last sickness. I am compelled to the conclusion that Fred., as one means of procuring these papers, held out that he would not remain unless he and his family were provided for. If it be true, therefore, that Fred., during his father’s sickness, at the time or previous to the execution of this will, had for the purpose of inducing his father to make it, intimated that otherwise he would leave, such an act, coupled with the considerations already mentioned, the provisions of the will itself, the condition of the father, present a case of undue influence.

But it is said that Fred, denies that he ever made such intimation or threats. He does indeed contradict the testimoiry, not only of those directly interested in the result of the contest, but also the testimony of Mr. Johnson and Dr. Andrews, who have no pecuniary interest in the litigation. It is again urged that the testator had expressed gratitude and affection towards Fred, and Euphemia, and had spoken of his conviction that the disposition he had made of his property was what he thought was right, and that he called Mr. Ivins, who is a proctor of the proponents, and asked him to be a witness to his statement that the will he had made was his voluntary act and that he wished it to stand.

Edward Oakes says that he called on the testator in the early part of December, and while there Fred, came into the room and the judge (the testator) said, “There is the best friend I have got—no, not the best, his wife comes first and he comes second.”

John R. Sickles says that the testator told him, one day in November, “that Euphemia had been the best to him that he ever had with the exception of his wife and mother.”

Nimrod Woodward says that he called on the testator January 5th, and that the judge told him that the boys had been raising “old hob" with him for what he had done. Witness replied, “I suppose you have done what you thought was right, you always do it." The testator then said, “Yes, I have done what I thought was right; I don’t care what they say.”

Mr. Ivins says that he called upon the testator on January 7th, who said that he had sent for him to talk over his affairs. He then proceeded to tell.Mr. Ivins that he had made a will giving his property to Ered. and his wife, which his children threatened to break, and that he then made up his mind to give Ered.’s wife a portion of his property by deed, because it would be impossible to upset a deed. He wished Mr, Ivins to say, after testator’s death, that the latter had told him that the will was as he intended it, and he never wished it set aside.

Had the testator, when these declarations were made, been in a normal condition of mind, freed from the circumstances which surrounded him, the testimony would be quite persuasive that the act he had executed received his voluntary approval. But it is to be considered that he was still surrounded by the same influences as when the will was made. Ered. was present when testator made the remark to Mr. Woodward, and Ered. brought Mr. Ivins to his father’s house to receive his instructions. The same influence which induced the execution of the will would as easily induce the statement made after its execution.

Judge Eedfield’s remarks that declarations of this character, made after the execution of a will, can be of slight account, since a majority of men, after having once done an act under whatever influences, very easily convince themselves that it is right and feel strong reluctance to change it; and this feeling is more controlling with weak minds, often, than with those of more scope, force and comprehension, and is very sure to exist in an individual of originally strong and decided powers of mind, whose mental faculties have become impaired by age or disease. 1 Bedf. Wills 551.

It was quite natural that the testator, surrounded by the vigilance of Ered.’s family, upon whom he depended for care and nursing, should have desired to please them and secure peace and quiet in his last days. It is not unnatural that he should praise them and reiterate .his content with the provisions of the will he had made. Talcing the testimony altogether, I am of the opinion that the will was made because of the undue pressure exerted upon him by Fred., and that it was not the voluntary act of the testator, induced by .gratitude and affection for Fred, and his wife’s family.

It should not be admitted to probate.