text:
    Bridget Moran v. Bessie Neville et al.
    [Filed November 26th, 1897.]
    1. Where a husband negotiates the purchase of lands and procures the title to be placed in his wife’s name, and mortgages his own other property with that bought for her to pay for the latter, and actually gives her the money raised on the mortgage, it is a complete gift to the wife, and casts upon the husband or his heirs who dispute it, the burden of proving an obligation on her part to pay back the money, or some agreement on her part that the whole debt should be charged primarily on her property, leaving the husband’s liable only for the deficiency.
    2. The relation of husband and wife and his conduct in so dealing with the property purchased, raise a presumption that a gift or settlement is intended, and while this presumption may be rebutted by proof, the burden is upon the party who disputes the gift.
    3. In such a case the property of the husband included in the mortgage must contribute its ratable portion towards the payment of the mortgage debt.
    On bill to foreclose and exceptions to master’s report.
    This is a bill to foreclose two mortgages held by the complainant, Bridget Moran. Her right to have a decree in accordance with the prayer of her bill is not disputed.
    The questions in issue are raised by the answer and cross-bill of the defendant James N. Butterly, and by the exceptions filed in the master’s report in the cause by that defendant, and affect only the equities between the defendants, the heirs of Robert Neville, and the defendant Bessie Neville, his widow.
    In 1889, Robert Neville was the owner of a lot of land on Jackson street, Jersey City, and on May 20th, 1889, he mortgaged it to secure the payment of his individual bond, his wife joining in the mortgage. This mortgage will hereafter be referred to as the mortgage made in 1889.
    In 1890, one Lane conveyed to Bessie Neville, the wife of Robert Neville, another lot in Jersey City, situate on Vreeland street, or Randolph avenue. To secure the money to pay for this lot, Robert Neville and Bessie, his wife, gave their joint and several bond to the complainant, and secured its payment by a mortgage bearing the same date as the deed conveying the lot to Mrs. Neville. This mortgage covered not only the lot on Randolph avenue, conveyed to her, but also the Jackson avenue lot owned by Mr. Neville. The mortgage was in the usual form, except that it contained a special clause, whereby the mortgagors had the right to pay off $1,500 of the principal of the debt, and to receive a release of the Jackson avenue property from the lien of the mortgage. This mortgage will hereafter be referred to as the mortgage made in 1890.
    It should be noted that Vreeland street and Randolph avenue are the same.
    Robert Neville died in 1896, intestate, seized of the Jackson avenue lot, leaving him surviving his widow, the defendant Bessie Neville, and his heirs-at-law, the defendant James N. Butterly and others, to whom the title of the Jackson avenue lot descended.
    Bessie Neville still continues to hold the title to the Randolph avenue lot.
    By their terms both the mortgages came to be due because of the non-payment of interest. The complainant filed her bill to foreclose in this case, making defendants the widow, Bessie Neville, and the heirs-at-law of Robert Neville, as owners of the Jackson street property, and Bessie Neville, in her own right, as sole owner of the Randolph avenue property.
    James N. Butterly is one of the heirs of Robert Neville, and he files his answer admitting all the facts stated in the bill, but alleging that the mortgage of 1890, though given on both properties, was made to secure the purchase-money of the Randolph avenue lot to be paid by Bessie Neville, and for the purpose of obtaining money to build on it, and that the moneys so raised were so used; that the Randolph avenue lot is the separate property of Bessie Neville ; that Robert Neville never had any interest in it, and that the Jackson avenue lot was included in the mortgage of 1890, solely as collateral security to secure the mortgage debt of Bessie Neville, in the event only that the Randolph avenue premises should prove to be insufficient to pay it; and by his cross-bill against Bessie Neville, the defendant James N. Butterly further charges that the whole proceeds of the mortgage of 1890 were used by Bessie Neville for the benefit of her separate estate, Robert receiving no benefit therefrom. He insists that the Randolph avenue property should be first sold, and out of the proceeds thence arising the whole amount due on the mortgage on that property should be paid, and if there be a deficiency the Jackson avenue proceeds remaining after the payment of the mortgage of 1889 should be used to pay it, but that no proceeds from the Jackson avenue property should be used to pay the mortgage of 1890, unless there be a deficiency in the proceeds from the sale of the Randolph avenue property to pay the mortgage.
    The defendant Bessie Neville answers the cross-bill, admitting that the mortgage of 1890 was made to secure the purchase-money of that property and to build on it, and that it was used for those purposes, and that she and not Robert owns it, but she denies that the Jackson avenue property was put in that mortgage solely as collateral security to secure the debt in the event only that the Vreeland street (or Randolph avenue) property should be insufficient to pay it. She then avers that Robert Neville, shortly before making the mortgage of 1890, intended to sell the Jackson avenue property and use the proceeds for the purchase and improvement of the Randolph avenue property, and to vest the title to the latter in her name; that because he could hot secure a satisfactory price he determined to borrow the necessary money, and for the same purposes did borrow it and gave it to her for those purposes, and it was always his intention to sell the Jackson aveuue property, and out of the proceeds to pay off the mortgage of 1890, and she insists that it is inequitable to charge the whole debt of that mortgage on the Randolph avenue premises, and to free the Jackson street premises from all liability to that debt, when both are included in that mortgage.

      The question in dispute was referred to a master for report, who took testimony upon the disputed points, and reported that the Jackson avenue property should be first sold ; to pay, first,, the amount due on the mortgage of 1889 on those premises, and to pay, secondly, the sum of $1,649.50 of the amount due on the mortgage of 1890 on both lots, with five-sevenths of the costs of suit. This sum is stated by the master without indicating the sources from which- he ascertained the amount to be charged. But it corresponds with the sum of $1,500 named in the mortgage of 1890 as sufficient to release the Jackson avenue property, and interest thereon from the time when interest is due by the master’s report on the mortgage of 1890. The master further reports that the Randolph avenue property should be secondly sold to pay the residue of the amount due on the mortgage of 1890, with the remaining two-sevenths of the costs.
    To the master’s report the defendant James N. Butterly files his exceptions as to the order of sale, the defendant insisting that the Randolph avenue property, and not the Jackson avenue property, should be first sold, and that out of the proceeds the complainant should be first paid the whole amount due her on her mortgage of 1890. That the Jackson avenue property should be secondly sold, and from the proceeds should be first paid the amount of the mortgage of 1889, and if there should be any deficiency of the proceeds of the Randolph avenue property to pay the mortgage of 1890, the residue of the proceeds of the Jackson avenue property should pay it.
    The substance of the excepting defendant’s claim is that the Randolph avenue property should be first sold, and that no part of the proceeds of the Jackson avenue property should be paid in satisfaction of the mortgage of 1890 on both' properties, unless there should be a failure of the Randolph avenue property to pay the whole amount due on that mortgage.
    No exceptions were taken to the master’s report on the part of the defendant Bessie Neville.

      Mr. Edward A. S. Man, for the exceptant defendant.

      Mr. John Garrick, for Bessie Neville, respondent defendant.
   Grey, V. C.

The exceptions to the master’s report are based upon the same grounds set up in the answer of the excepting defendant, Butterly. He contends that the Jackson avenue property was included in the mortgage of 1890, with the Randolph avenue property, solely as a collateral security, and that it should respond to the payment of that mortgage only in the event that the proceeds of the Randolph avenue property should be insufficient to pay it.

The attention of the mortgagors in making the mortgage of 1890 was evidently especially called to the relation of the mortgage debt to the properties mortgaged. This appears from the clause in that mortgage providing that the mortgagors should have a right to a release of the Jackson avenue property upon paying $1,500 of the principal due. Had they intended that the Jackson avenue property should only be secondly liable for the mortgage debt, it would naturally and reasonably have been expressed in the mortgage itself. It is not there found.

By the exceptant’s proofs it was shown that Robert Neville, in his lifetime, negotiated the loan which resulted in the mortgage of 1890 on both the Jackson avenue property, which he owned, and on the Randolph avenue property, which he obtained to be put in the name of his wife, coincidently with the making of the mortgage. Sometimes he paid the interest on it and sometimes his wife paid it. No proof was made that there was any understanding or agreement that the mortgage of 1890 on both lots should be paid in the first instance wholly out of the Randolph avenue premises.

It is admitted by the answer that the wife, Bessie Neville, holds the title to the Randolph avenue property, and that she received the money raised by the mortgage of 1890 on both properties, and used it for improving her separate estate.

The exceptant appears to have assumed that this receipt of all the mortgage money by Mrs. Neville has operated somewhat as does a resulting trust, and has charged her property with an equity to answer first for the whole mortgage debt. But-obviously this was not the intention of the parties.

The evidence for the defendant Bessie Neville is full and uncontradicted that Robert desired to dispose of the Jackson avenue property in order to have the Randolph avenue property free from liens, with the title to stand in his wife’s name, so that she should have a home clear. Failing to secure a sale on advantageous terms he made the mortgage in question. He made this statement to a Mrs. Lane, and also to the mortgagee, before the mortgage was made, and in substance to the other witnesses afterwards. Robert Neville and Bessie, his wife, never had two purses; he furnished the money to pay the interest on the mortgage of 1890, which covered both properties. The checks given by the mortgagee in making the original loan are produced, and they are made payable, not to the husband, but to the wife, and as he negotiated the loan and transacted the business it is impossible to refuse to believe that he arranged and intended the Randolph avenue property to stand in his wife’s name, and actually gave to her as a gift all the proceeds raised by the mortgage of 1890, which was not only on her property, but also upon his own. This was in the nature of a gift to her actually executed by the making of the mortgage and the payment of the proceeds to her. The heirs of Robert, by their contention, are now seeking to dispute his executed gift.

This testimony explanatory of the purpose and intent of Robert Neville in his dealings with the Randolph avenue property, and with the money raised by the mortgage of 1890, and his declaration regarding these matters, was objected to as incompetent.

But testimony of like character to establish a trust in the Randolph avenue property in favor of Robert Neville, by the admissions of Bessie Neville, would have been admissible had such proofs been offered. Peer v. Peer, 3 Stock. 439; Midmer v. Midmer, 11 C. E. Gr. 302, affirmed on appeal, 12 C. E. Gr. 548. And it may be overcome by the same kind of evidence. Peer v. Peer, ubi supra; Duvale v. Duvale, 9 Dick. Ch. Rep. 582. I think the evidence above recited of the contemporaneous declarations of Robert Neville is within the same principle, and was, under the authorities cited, clearly admissible to show that by the mortgage of 1890 he intended to charge the Jackson avenue property not as an ultimate resort, but primarily, at least, to the extent of paying its fair proportion of that mortgage debt.

Irrespective of aiding proof, however, the mere fact that the husband pays the consideration for the purchase of lands, and has the conveyance made to his wife, raises a presumption that a gift or settlement is intended, and while this presumption may be rebutted by proof, the burden is upon the party who disputes the gift, and the proof must be such as would be required to establish a resulting trust. Read v. Huff, 13 Stew. Eq. 234. I think the principle is equally applicable where the husband obtains a title to be put in his wife’s name, and mortgages his own property with hers to pay for it, actually giving to her the money raised on the mortgage. This completed the gift, and casts upon the heirs who assert an equity antagonistic to the gift the burden of proving that she was to pay back the money by the process of charging the whole debt on her property, and making his liable only for the deficiency. This burden the heirs have not assumed, for they have offered no evidence which shows that the Jackson avenue property should respond in payment of the mortgage of 1890, only after the Randolph avenue .property is exhausted.

Neither the mortgage itself nor the parol testimony supports this contention in the least degree, and, as above shown, the presumption which arises from such dealings of a husband with a wife is also against the exceptant’s contention.

The master has reported that the Jackson avenue property should be charged with the payment of $1,649.50, part of the mortgage of 1890. No exception has been taken to the report on the ground that this is a charge of an undue proportion. The exceptions are made upon the single ground that the Jackson avenue property should not respond at all until after the Randolph avenue property has first been exhausted.

I am of the opinion, and will advise, that the exceptions to the master’s report have not been sustained, and should be overruled, and the report confirmed, with costs.


source: Caselaw Access Project

author: The Ordinary.

license: Public Domain

text:
    Annie Claffey v. Mary Ledwith.
    [Filed October 19th, 1897.]
    1. A testator will be deemed to have had capacity to make a will if it clearly appears that he comprehended his property, the natural objects of his bounty, the character of the business in which he was engaged, and the disposition he resolved to make of his property when he gave instructions for the will, and when he executed it, though it appears that at the period when the will was made he was in an incipient stage of a fixed mental disease, which at times had so affected him as to incapacitate him from making a will.
    2. Where the proof of undue influence was so strong as to cast upon the proponents of a will the burden of showing that such influence had not been exerted, such burden was not sustained by the opinions of the subscribing witnesses that the testator had not been influenced, and the fact that the testator, during the months covered by the process of will-making, had echoed the arguments of tlie favored heirs for partially disinheriting a proper object of his bounty, where the favored heirs did not testify and explain their participation in the production of the will, and deny the exertion of undue influence.
    3. Upon the facts established in this case - Held, that the burden is thrown unon the proponents to show that undue influence was mot exerted.
    On appeal from a decree of the Bergen county orphans court.

      Mr. James F. Minturn (with whom was Michael J. Kelly, Esq., of New York), for the appellant.

      Mr. Milton Demarest (with whom was Thomas F. Magner, Fsq., of New York), for the respondent.
   The Ordinary.

James Ledwith died in the township of Saddle River, in Bergen county, on the 9th of July, 1894, at the age of eighty-four years, leaving a paper, which was executed as his will on the 15th of May, 1890, the validity of which is the subject of the present contest. His wife died many years ago. He had three children — a son, James, who died in Brooklyn, New York, on the 13th of January, 1890, leaving a wife and two children, one of whom was born after his death, and died within a few months after its birth, and two daughters — Julia, who, after a lingering illness, died of consumption in July, 1892, and Annie, who married one Claffey, from whom, during the time in question in this controversy, she was separated.

In early life Mr. Ledwith lived in New York City, and was there engaged in the business of selling liquors, from which, and through economy, he amassed enough money to enable him to own two tenement-houses, built upon a single city lot, fronting upon East Twelfth street, near Avenue A, in New York City, to buy a few building lots at Saddle River, and to purchase and stock a small farm, which lies partly in Bergen county, in this state, and partly in Rockland county, New York, upon which he lived from 1868 until his death in 1894. The dwelling-house upon the farm is in New Jersey, and hence his legal residence at his death was in Bergen county. The proofs indicate that his yearly income was in the neighborhood of $2,500; and that his estate was worth something approximating $40,000.

The disputed will contemplates this disposition of his estate: The payment of his debts, a bequest of $1,000, charged upon his entire estate, to his brother Thomas and his two daughters, who are the executor and executrices, in trust, to be divided into as many parts as there shall be children of his son James, and invested and paid to those children respectively upon their reaching twenty-one years of age, together with accumulations of interest, the mother of the children to take the $1,000 in case they should all die before reaching twenty-one years of age, and the gift of the residue of his estate to his two daughters, or to the survivor of them, at distribution, and should they both predecease him, to “ their heirs or next of kin.” Power to sell land is given to the executor and executrices. Prior to the residuary clause of the will, provision is made that the daughter’s shall have the right to continue to “ use and keep” the farm so long as they or either of them shall continue to live on the place.

The will was proved ex parte before the surrogate of Bergen county, and admitted to probate on the 10th of July, 1894. On the 24th of September in the same year an appeal was taken to the orphans court by Mary Ledwith, as the guardian of her infant son, Vincent Ledwith, who was the surviving son of the testator’s deceased son James, and thereupon such proceedings were had that in 1896 it was decreed that the paper admitted to probate by the surrogate was not the will of James Ledwith, and that the order of the surrogate admitting it to probate be reversed. The matter is now heard upon appeal from such decree of the orphans court upon voluminous proofs taken in that court. The appellant is the testator’s daughter, Annie, and the respondent is his daughter-in-law, Mary, widow of the deceased son, in her capacity as guardian of her infant son, Vincent.

The insistence upon which the contest is based, primarily, is, that at the time of the execution of the will James Ledwith, suffering from senile dementia, lacked capacity to make a will, and, in that condition, had the disputed paper imposed upon liim by his daughters, his brother and the subscribing witnesses; and, secondarily, is, that even if the proofs should be held to be insufficient to establish incapacity to make a will under favorable circumstances, they at least exhibit an intellect so far enfeebled as to present a fit subject for the imposition -which the proofs establish ; and, thirdly, is, that if actual fraud by imposition be not shown, the proofs warrant the rejection of the will as a product of undue influence.

It is admitted that prior to his death in 1894 Mr. Ledwith completely, or almost completely, lost his mind. It is not disputed that he suffered from senile dementia. The inquiry through the evidence has been as to the stage the disease had reached when instructions for the will were given and the instrument was executed.

The respondent here and appellant in the orphans court insists that she noticed a change in Mr. Ledwith as early as 1886. Charles H. Armstrong and William Kruse testify that in June, 1886, Mr. Ledwith came to their houses, some eight miles from his home, and insisted, first at one and then at the other, that he lived there, and, being refused admission, that he remained in the neighborhood all the night and was taken by them to the poorhouse the next morning. They attribute his conduct to mental derangement. In the fall of the same year William W. Oldfield, a restaurant keeper of Spring Valley, says that Mr. Ledwith got off a train of cars from New York and was so bewildered that he started to go home the wrong way. The witness attempted to send him home, but failed to do so, and, as a result, he was again taken to the poor-house. Mr. Oldfield entertains the opinion that Mr. Ledwith was not under the influence of intoxicants, but, for the time, was mentally deranged.

George Saarosy, a merchant of Spring Valley, and Peter J. Christopher, a near neighbor of Mr. Ledwith, both witnesses for the respondent, testify that in 1887 Mr. Ledwith was in possession of his mental faculties. Jennie Gillespie, on the contrary, who had frequent opportunity to see Mr. Ledwith, thinks that his mind was giving way in 1887, and John Christopher, a son of Peter J. Christopher, expresses the same opinion. In support of his opinion John Christopher gives an instance which appeared to him to indicate mental impairment in 1887 or 1888. He, then being seventeen years old, drove Mr. Ledwith to Spring Valley, and there, among other things, stopped at an express office to get a bundle for Mr. Ledwith. He says that he got out and tried to get the bundle from the express agent, but, because the agent did not know him, he was sent out to bring Mr. Ledwith in the office. He tried to induce the old man to get out of the wagon, but failed, whereupon the express agent came out and saw Mr. Ledwith, who got out of the wagon and went into the express office. There the agent wanted him to sign his name in a book, and upon Mr. Ledwith saying that he could not do so, the agent asked him to make his mark, and the old man took up a pen and made a cross in the place indicated by the agent. It seems to be well doubted whether the instance, instead of supporting young Christopher’s opinion, does not evince intelligence in Mr. Ledwith. The old man would not obey the boy’s direction to get out of the wagon, but when the agent came and he saw the necessity of it, he went into the office. When he was asked to sign his name, he shrank from a task which he had rarely performed, taking refuge in a falsehood, and when told to make his mark, 'with an intelligence which exhibited an appreciation of that which was required, took a pen and made the cross which is usually adopted for a mark.

As to the year 1888, the respondent testifies that Mr. Ledwith then exhibited mental enfeeblement by carrying about brush, pieces of wood and other things from place to place uselessly and apparently without object. Mr. Saarosy remembers that then Mr. Ledwith inanely, as it seemed to him, would repeat “aye, aye” in reply to questions, and that in the summer of that year he saw Mr. Ledwith making his way barefooted through underbrush and briars. Peter J. Christopher says that after harvest in that year Mr. Ledwith occupied himself in the aimless transfer of things from place to place, as the respondent says she noted the year before, and Jennie Gillespie, with some uncertainty as to the time, corroborates him in this particular, and recollects also that Mr. Ledwith was then continually watched as though a child by his daughters, and that she, at the instance of the daughters, took him to the village of Spring Valley to be shaved.

The respondent testifies that in the summer of 1889 she saw Mr. Ledwith wear a fur cap on the hottest days and two or three vests at once, and heard him express fear that the vests would be stolen, and also that she saw him put eggs in his pocket and aimlessly carry things from place to place, and that he then wandered away from home without knowing where he was going. Emma Christopher testifies that upon an occasion in 1889 she saw Mr. Ledwith come in his house and, after walking about restlessly, fake a cushion from a chair and throw it on the floor and after looking at the chair throw it also upon the floor, and then throw a shawl and some papers off a lounge and go to the water-pail, evidently to throw that also upon the floor, when his daughter Julia called out to him, “You crazy old fool, let that be;” also that she then saw him go to the fireplace and take a clock from the mantel and put it on the stove, and then dip his bands in some pots of cream behind the stove, and saw his daughter wash his hands and heard her say, “ He is a crazy fool.” She further says that the day after this, while she was churning at his house, he put rotten apples in the churn. She further testifies that in the same year, apparently unconscious of the impropriety of his conduct, he used the floor of his house in answer to the calls of nature. The father of this witness states that upon two or three occasions in 1889 the old man was so far demented that he failed to remove his clothing when he relieved his bowels.

Speaking of the year 1889, Peter S. Van Orden, a witness for the appellant, says that several times as he drove past Mr. Ledwith’s place, and stopped for a short time with the old man, he failed to notice anything irrational in his conduct or speech. To the same effect a Mr. Tallman, who was postmaster at Spring Valley, says that during the years 1889, 1890 and 1891 Mr. Ledwith was in the habit of coming to the post-office, a distance of three miles, sometimes alone, for his mail, and during those years would call the witness correctly by name and ask for his mail, and otherwise so conduct himself as to impress the witness that he was in possession of his mental faculties. Another witness, James Crouter, instances that in April, 1889, he was engaged to build a garden fence at Mr. Ledwith’s, and when the lumber with which he was to do the work was brought it proved to be hemlock, and Mr. Ledwith refused to permit it to be used, insisting that it should be pine. The witness says that Mr. Ledwith was right, and he consequently had the lumber changed. At the same time the witness was called upon to fix the hinges of a cellar door, and explained that he could not do the work because the hinges should be leaded into the stone on one side, whereupon Mr. Ledwith suggested a plan for securing the hinges, which was adopted and proved successful. During this work the witness says that he ate with Mr. Ledwith, and from time to time talked with him, and was satisfied that he was intelligent. This witness remembers, also, that in the year 1890 Mr. Ledwith called him'correctly by his name, and appeared to him to be in possession of his mental faculties.

It is remembered that Mr. Ledwith’s son died in Brooklyn on the 13th of January, 1890. He was buried on the 16th of the same month. The funeral was at Brooklyn. The proofs show that Mr. Ledwith and Mrs. Claffey went to the funeral, leaving home on the 15th so that they might be at the wake that night. They reached Brooklyn at two or three in the afternoon, and later went to New York to Mr. Ledwith’s property in East Twelfth street, There they visited Margaret Keenan, the janitress of the houses, and took supper with her. Mrs. Keenan says they came at seven o’clock in the evening; that she expressed sympathy for Mr. Ledwith in the loss of his son, and that he replied that he knew her feeling; that he inquired for her husband and son ; that he ate supper, but did not talk much until her husband came, and that he then talked with her husband; that when he went away he told her not to - give any of the rents she should collect to his son’s wife. Simon Keenan corroborates his wife, and says that Mr. Ledwith talked intelligently with him about some old neighbors. Mary Keenan corroborates the testimony of her parents. It appears that an elderly woman named Brown, who had been one of Mr. Led-with’s tenants for some twenty years, was living in the building, above the rooms of Mrs. Keenan, and that Mr. Ledwith went alone upstairs to her rooms to see her and knocked at her door, and, when he was admitted, asked her how she was, remarked that her room was very warm, asked for her son, naming him, told her of his son’s funeral and invited her to attend it. Mrs. Brown says that he stood talking intelligently for about fifteen minutes. She is corroborated by her daughter, who adds that as she went to raise the window, after Mr. Ledwith’s remark about the warmth of the room, he said, “You are just as stout as you ever was ” that her mother spoke of the suddenness of his son’s death, and he replied that it was a great blow, that he had been so encouraged by the physician that he believed his son would recover. The daughter, as the mother, thought that Mr. Ledwith was intelligent and in possession of his mental faculties. At about nine o’clock he started back to Brooklyn with his daughter and Jennie Gillespie, who had accompanied them. Mary Keenan went with them to the street car. She says that the old man suggested the propriety of their standing upon the lower corner of the street, the proper stopping-place of a down car. As no car came they walked down a block to Eleventh street, and in doing so passed a florist, where he suggested they might purchase some flowers for the funeral, but he was persuaded that it would be more convenient to buy them in Brooklyn. She says that when the car came he shook hands with her and said, “ We will see you in the morning,” and she replied in the affirmative. The only other witnesses who speak of the evening of the 15th of January are Jennie Gillespie and the respondent. Jennie Gillespie says that the old man was very quiet in going from Spring Valley to Brooklyn, but in returning from New York to Brooklyn at night he acted so eccentrically in the street and car as to attract the attention of the other people and give her trouble to quiet him. The respondent says that during the night in Brooklyn, as Mr. Ledwith sat up, he failed to express grief for the loss of his son, and when some man came in during the night with a silk hat, Mr. Ledwith claimed it as one he had lost years before.

The funeral took place early in the morning of January 16th. Mr. Ledwith attended it in a carriage accompanied by his daughter Annie and James and Jennie Gillespie. He had breakfast before he went, but during the remainder of the day, and until he got home to his house, three miles from Spring Valley, at night, he was without food. James Gillespie says that at one place where the parties stopped to drink, the old man had a glass of hot lemonade, but that that was all. The night’s vigil and the day’s starvation exhausted him. Both the Gillespies say he did not realize where he was going when he went to the funeral, and that late in the day, while he was still in the carriage, he became violent and tried to break out. It appears that after he reached home he so acted that one of his daughters said that he was out of his mind. Later in the evening, after he had his supper, he became more quiet.

For three or four years, before the son died, he took the general management of his father’s tenements in New York City. He deposited the moneys collected from tenants from time to time in bank to the credit of his father. After the son’s death, John Van Benschoteu was employed to do this work, and he continued to act as agent until Mrs. Claffey discharged him. Mr. Van Benschoten appeared as a witness called by the respondent. He testified that about the 1st day of February, 1890, he called at Mr. Ledwith’s to arrange the terms of his employment, and first saw Mr. Ledwith’s daughters, the father being outside of the house. The daughters called their father, and when he came in they asked what percentage upon the collections the witness would charge, and he replied to Mr. Ledwith that the charge would be five per cent., and asked if that would be satisfactory. The daughters replied in the affirmative, but the father, after waiting for a time, which seemed to the witness long, replied “too much,” repeating several times, and then added, “ Well, I hope you’ll do your duty.” The witness said, “ I hope so,” and the old man replied, “ I hope you’ll earn the money.” Mr., Van Benschoten further says that after that time he shrank from dealing with Mr. Ledwith because the latter rambled, and he feared they could not reach an understanding. He thought that Mr. Ledwith’s mind was not clear. He says, “ He was honest, his intention was right, but you couldn’t converse with him long enough.” He therefore avoided Mr. Led-with, and all business communications with him. On one or two occasions the old man asked him how he was getting along, and the wituess replied to the family generally, and not to Mr. Ledwith. It does not appear that the witness ever attempted to converse with Mr. Ledwith about his business. He frankly ¡states that such an attempt would have been.unpleasant to him because of the old’ man’s repetition. Maria Gillespie, who, when she testified, appears to have been employed in the home of the respondent, says that in February, 1890, Mr. Ledwith habitually went about the yard picking up sticks and whatever came in his way, and that along in April, 1890, his daughters would not trust him to go to the village alone; that when he went to be shaved someone was sent with him; that she, the witness, at times accompanied him to the village when he went to be shaved, and would receive the money for the barber from his daughters and give it to the old man when he reached the village. She says that about that time the daughters were in the habit of ordering their father about, and that sometimes he was obedient to their orders, and at other times would not obey them. Ephraim C. Bass testifies that he married Melissa Christopher, a neighbor of the Ledwiths, in January, 1890, and that from the 23d of December, 1889, to the latter part of January, 1890, he lived at the house of his father-in-law. He was then a Western cowboy. He came to the East for the purpose of getting married, and at the end of January returned to the West. He came back to the East again in 1891, and is now a motorman upon an electric railway in Brooklyn. About the time that the younger James Ledwith died, night and morning he did chores about the Ledwith place. . He says that Mr. Ledwith would get up in the morning at nine or ten o’clock, when called by a dáughter, and that the daughters would wash and dress him and give him his breakfast; that at times he would go out and wander away and get lost, so that on three occasions in January the witness had to find him and bring him home; that when found on each occasion the old man did not appear to know where he was; that he was unable to do anything properly; that when he attempted to attend to the wants of the cattle he would overfeed them; that at times he had to be taken to attend to the calls of nature or would act as an infant in disregard of his clothing; that he did not take part in the household management ; that all bills were paid by his daughters; that at the very first visit of the witness to the house Mr. Ledwith took a hot teakettle from the stove and put it on the mantel, and then picked up the clock and threw it on the floor and broke it, and that his daughter Annie then said, “He is crazy anyhow and don’t know what he is doing.” John Christopher testifies that in the spring of 1890 he at times did chores for the Ledwiths, and that he remembers that Mr. Ledwith would be in bed at eight and nine o’clock in the morning, and that his daughters would wake him; that in May, 1890, the witness built a fence to keep Mr. Ledwith out of his daughter’s flower garden, because he would unconsciously trample down the flower beds; that the old man was accustomed then to wander aimlessly about without being- able to do anything useful, and that in June, 1890, the witness remembers that the old man soiled his clothing in answer to a call of nature without apparently understanding what he had done.

The Rev. Charles Mull, a priest, testifies that he saw Mr. Led-with ten or twelve times between the latter part of the year 1889 and May, 1890, and that he thought that Mr. Ledwith was then in his second childhood; that he was not irrational, but, as a child, did childish acts without fully understanding, and yet, at the same time, had power of reason; that he would answer some questions correctly, especially those which called upon his memory of long-past events, but would have difficulty with questions concerning present matters, understanding about as a child would. Melissa Bass relates the putting of the teakettle on the mantel, which was testified to by her husband, but does not corroborate her husband as to the clock. While her husband says that Mr. Ledwith threw down the clock and broke it, she says that, at another time from the putting of the teakettle on the mantelpiece, Mr. Ledwith was going to break the clock, but it was taken from him. She gives an instance of the old man soiling himself, as stated by her husband and her brother, John Christopher, and says that in the spring of 1890 he would, at times, use the washbasin and water-bucket as he would a bedroom chamber. She says that at that time he had to be constantly watched, because of his mental irresponsibility, to keep him from being harmed and doing harm. Peter J. Christopher gives testimony similar to that of his children.

The respondent testifies that Mr. Ledwith ceased to manage his New York property in 1886 or 1887, and that at that time his son took charge of it, and that thereafter Mr. Ledwith did not attend to it; that in February, 1890, she visited him, and saw him, without apparent purpose, tearing up some almanacs and a colored picture; that she did not then meet and converse with him, because his daughters would not permit her to do so; that she did not see him again until the fall of 1890. Dr. Henry C. Neer, who was the physician in attendance upon Julia Led-with in 1890, testifies that prior to the execution of the will he had made about forty visits to his patient, and that during them he. frequently saw Mr. Ledwith; that on the 16th of May, the day after the will was executed, at the instance of Mr. Ledwith’s daughters, he specially conversed with the old man with a view to ascertain his competency to make a will; that he talked with Mr. Ledwith and was satisfied that he was competent, and thereupon, at the suggestion of the daughters, made an entry in his memorandum-book, which is this: “May 16th, 1890..' Am requested to make memorandum that James Ledwith made his will yesterday and his mind is good and he is competent to transact any business; that he cannot recall the entire conversation with Mr. Ledwith at the time stated, but does remember that the old man asked him if he lived where he formerly did, to which the doctor replied that he did — at Park Ridge — and Mr. Ledwith replied that he remembered the place, and then described the road leading to it from the main road to Hackensack, and said he had frequently driven past it when he was going to Hackensack; that he also talked intelligently about a slight ailment, for which the doctor then treated him. Mark Dewsnap, a neighbor, testifies that he saw Mr. Ledwith after the death of his sonj and that Mr. Ledwith said that he did not like the family his son was married in, and did not wish his property squandered in it. The witness did not notice that Mr. Ledwith changed mentally until after the daughter Julia died in 1892. Stephen H. Burr, a merchant of Spring Valley, with whom Mr. Ledwith dealt, remembered that shortly after the death of his son Mr. Ledwith was in the store and Mr. Burr spoke to him about his son’s death, to which Mr. Ledwith replied that he did not expect the young man to go before he did. Frederick P. Van Riper, a neighboring farmer, testifies that he saw Mr. Ledwith shortly after his son’s death, and the old man then said that his son had died of pneumonia and had been sick only a few days. The witness thought that Mr. Ledwith was intelligent in his conversation. The testimony of Mr. Tallman, the postmaster at Spring Valley, is, as already stated, that during the year 1890 Mr. Ledwith would come for his mail, and Nelson May, the blacksmith, states that during 1890 Mr. Ledwith came to him from time to time to have work done and conversed intelligently. He specially instances a visit by Mr. Ledwith to him in 1891, when Mr. Ledwith came to him alone on horseback to have the horse shod and an iron bolt mended, and gave his instructions clearly and remained more than an hour, until the work was done, talking intelligently. Dr. James A. Dingman says that upon one occasion in 1889 or 1890 Mr. Ledwith came to his office and talked incoherently and irrationally, so that the doctor, thinking him to be drunk, took him home; but that after that, for a period of three months, he prescribed for Mr. Ledwith to cure an ailment, during which period Mr. Ledwith used to call at his office, and that then Mr. Ledwitli paid him in cash, and then acted and talked as one mentally competent. John P. Kuhl says that late in 1889, or in January or February, 1890, he met Mr. Ledwith driving alone looking for the home of .Mr. Debann, the tax collector. He asked the witness to direct him, saying that he wanted to pay his taxes. He said that his son was dead and that his daughter was sick and so he had to attend to the payment himself; that he would know the place if he had driven upon the other road.

It will not be necessary to follow with particularity the testimony as to Mr. Ledwith’s mental condition after the will was made. It will suffice to say of it that the witnesses decidedly vary in their impressions of his condition and in their narration of incidents illustrative of his rational and irrational conduct until the time of Julia’s death in 1892, after which time the majority of them assert that his mental condition would not admit of his transacting business.

It is apparent, I think, from the references I have made to the testimony, that if credit be given to all the witnesses, Mr. Ledwith, during the year 1890, and possibly earlier, was at times incompetent to transact business, and at other times had sufficient possession of his mental faculties to enable him to intelligently comprehend all that was needful in making a will. The majority of the witnesses who came in frequent contact with him express the opinion that in the period when the will was made he lacked capacity to transact business, but they fail to satisfy me by clear detail of circumstances of the correctness of their conclusion. There are many little indefinable actions in one who is incompetent that are difficult for witnesses to explain or communicate distinctly in their testimony. For this reason the opinions of those who are constantly in company with the subject of the inquiry are permitted to be given in evidence, but the weight of an opinion must depend upon the facts which the witness narrates to sustain it, his opportunities of observation and his intelligence and freedom from bias. Waddington v. Buzby, 18 Stew. Eq. 173, 174. As has been seen in the incident related by John Christopher, concerning Mr. Ledwith’s conduct at the express office, the fact rather tends to overthrow than to support his opinion.

The greater number of opinions of witnesses against the competeney of Mr. Ledwith come from five members of the Christopher family and three members of the Gillespie family and the respondent. The head of the Christopher family is a farmer who worked part of Mr. Ledwith’s lauds upon shares, but since the management of the property has come into the daughter’s hands has ceased to be so employed. From his own statement he appears to also be a pettifogger and promoter of litigation. He says that he has pushed cases to the supreme court in his state. It is claimed that he zealously espouses the cause of the respondent, and that it is a just inference from the attitude of his family as witnesses, that he is promoting the litigation in this case. As to the Gillespie family, it is shown that at the time the testimony was taken, one member of it was employed by the respondent’s mother in the respondent’s home. Other witnesses, on both sides, have been subjected to criticism on the score of interest or bias of some kind. I think that interest or bias sufficient to wholly destroy credibility has not been shown in the case of any witness, yet in many instances enough has appeared to warp the judgment of the witness and weaken my confidence in the conclusion he or she has expressed. Making allowance, where I think it should be made, for exaggeration due to ignorance, lack of appreciation, and the zeal of interest, I conclude, as I have stated, that Mr. Ledwith was sometimes incompetent and other times competent to make a will.

In this situation it becomes manifest that the greatest attention must be directed to the proofs of Mr. Ledwith’s condition at the very times when instructions were given for the preparation of the will and the instrument was executed.

The subscribing witnesses to the will are William H. Kelly, a lawyer of New York City, whom, I infer, from the fact that he is called “Judge” and “ex-Judge,” at one time held a judicial position, and John J. Murray, also of New York, a nephew of Mr. Ledwith’s deceased wife.

The proofs show that in January, 1890, shortly after the death of the younger James Ledwith, at the instance of Annie Claffey, who wrote to Mr. Murray that her father wished to make a will, Murray called upon Mr. Kelly and told him what was wanted and asked him to visit Mr. Ledwith. Mr. Kelly delayed the visit until late in February, and then he and Murray went together to Spring Valley to see Mr. Ledwith. Mr. Kelly says that when he entered the house he found the old man and his two daughters together. Murray introduced him, and then he and Mr. Ledwith conversed first about Kelly’s mother and family, and then Mr. Ledwith introduced the subject of the church with which they had formerly been connected in New York and its pastor. After some conversation of this kind Mr. Kelly asked Mr. Ledwith what property he had, and Mr. Led-with replied that he had a farm situated principally in Bergen county, in this state, but partly in New York; that he owned two tenement-houses on one lot in New York City; that he had some money in bank, and the stock and farming utensils on the place where he resided; that his son had married, and had recently died in Brooklyn, whei’e he lived; that his two daughters lived with him, and that he desired to leave his property principally to his daughters. Mr. Kelly states that he remembers the substance of what Mr. Ledwith said, but not his precise language, and that part of the information he obtained was in the shape of answers to his questions, and part was volunteered by Mr. Ledwith. His visit was some two or three hours long, and during it the conversation was principally about the will; that Mr. Ledwith was his chief entertainer; that they walked out and looked at the place; that Mr. Ledwith’s instructions were “very clear;” that there may have been suggestions by the daughters in course of them — at least the daughters joined in the conversation in which they were given — but that Mr. Ledwith did not acquiesce in that which his daughters may have said. He says: “He was a very stubborn man, and he was the boss. He was very firm. * * * He was a man who would not let anybody have much to say about his property.” This impression the witness received in the two or three hours’ interview, for he had not seen Mr. Ledwith before. He adds that he did not have difficulty in drawing Mr. Ledwith out; that Mr. Ledwith was “ perfectly clear, perfectly intelligent and very firm.” The witness made a memorandum of the instructions, but at the time of his examination had been unable to find it. He returned to New York to prepare the will.

A second visit he made alone, some six weeks or two months after the first. During the interval between the first and second visits, Mrs. Claffey called at his office in New York and said that she was in New York shopping, and that her father had asked her to call upon him; that her father was a little annoyed by the delay and would like to have the will completed. He says that he has no recollection of Mrs. Claffey speaking of the provisions of the will; that at any rate he would not have taken directions from her. He says that at the second visit he again met the father and the two daughters, and read to Mr. Ledwith that which he had-prepared, and discussed it with him, and that modifications were suggested by Mr. Ledwith. He says that the daughters took part in the conversations, dwelling upon the desired provision as to their occupancy of the farm, and that the father finally said that he thought it best to let them have the farm as long as either of them cared, and then to have it sold. The witness adds: “He didn’t seem to want to bind them to continue all their lives on the farm, and yet he thought it was a good place for them to live.” There was also, he says, discussion as to the propriety of making the $1,000 for his son’s children payable in installments, and some figuring in respect to that. Outside the matter of the will the witness says that he talked with the old man as to past events, adding “ I found him at that time to be quite entertaining.” This interview, like the former, was two or three hours long. The witness took notes of his instructions at this visit, but has not been able to find them. He went back to New York and redrafted the will, and on the 15th of May, 1890, with Murray, went to Mr. Ledwith again. In addition to Mr. Ledwith and his daughters, Thomas Ledwith, the brother of the testator, was preseut. Mr. Kelly read the will carefully in the presence of those there, and then handed it to Mr. Ledwith, who asked for pen and ink and a sheet of paper to practice, wrote his name two or three times upon the sheet of paper and then signed the will. The will was then duly declared and duly signed by the witnesses, Kelly and Murray. Mr. Kelly says that before the execution of the document he walked out with Mr. Ledwith, so as to be away from the others, and asked him if the $1,000 was all he wanted to leave his son’s children, and the old man said “yes,” and the witness said, “Is your mind fixed on that?” to which Mr. Led-with replied, “positively,” adding that he did not want his son’s wife to spend his hard-earned money that his son’s wife was extravagant.

The subscribing witness Murray states that at both his visits he found Mr. Ledwith to be in possession of his mental faculties. He relates conversations to show the correctness of his conclusion. He corroborates Mr. Kelly as to the circumstances surrounding the execution of the will, and among them the private conversation Mr. Kelly had with Mr. Ledwith outside the house. His account is this :

“The Judge [meaning Kelly] says, ‘Now, Mr. Ledwith, are you still wishing to give that §1,000 to the child?’ He says, ‘Yes.’ I think the Judge proceeded with him a little while and he asked him a second and a third time. He says, ‘ I will make no change. It will be §1,000 ’ * * 'x‘ I made one remark, ‘Why not give him the son’s share?’ There was no reply to it. Mi-. Kelly said, ‘Do you think that is enough, Mr. Ledwith?’ I think he said, ‘ That is enough,’ and I think he also said about his money, he earned it hard. He made that remark regarding the §1,000 — he earned the money hard and didn’t want it to be spent foolishly; something of that kind.”

Thomas Ledwith also testifies that he saw his brother sign the will. Mrs. Claffey, the only other surviving person present, was not sworn as a witness.

If these witnesses tell the whole truth, and I do not perceive sufficient ground for disbelieving them, though I am constrained to think that Mr. Kelly’s testimony may in some respects be exaggerated, there can be no doubt that when the testator gave instructions for the will, and when he executed it, he possessed ample capacity to make it. He comprehended his property, the natural objects of his bounty, the character of the business in which he was engaged, and the disposition he resolved to make of his property. His capacity, I think, was equal to the task he was called upon to perform. Waddington v. Buzby, supra.

But it is insisted that the will was imposed upon the testator. The subscribing witnesses reiterate with emphasis that Mr. Led-with fully understood what he was doing, possessed ample ability to care for himself, and exhibited determination to have his own way. Mr. Kelly declares that he was the “ boss; ” that he was very firm ; ” that l£ he was a man who would not let anybody have much to say about his property,” and Mr. Murray gives, as an instance of his resolution, his reply to Mr. Kelly’s importunity as to the amount to be given to the grandchildren: “ I will make no change. It will be $1,000.” It is impossible, if this is believed, to hold that Mr. Ledwith was the subject of imposition.

Let us look at the other proofs submitted in this connection.

John Van Benschoten says that about the 3d or 4th of February, 1890, having a letter written by Mrs. Claffey to Mrs. Keenan which introduced him as the new property agent, he went with the subscribing witness Murray to see Mrs. Keenan and that as he and Murray were coming away, Murray said to him, ££I want to stop and see Mr. Kelly, or Judge Kelly, in regard to writing Mr. Ledwith’s will. We want to get the old gentleman to make his will. We don’t want to let the money go out of the family.” Dr. Neer testifies that a few days before the will was executed, Mr. Ledwith’s daughters, who were together at the time, asked him if he ever wrote wills, and, upon his replying in the affirmative, asked him if he would write Mr. Ledwith’s will, to which he replied to Mrs. Claffey, who was then living at her father’s, separate from her husband, that because of complications which might arise out of her relations with her husband, he advised them to employ a lawyer. The doctor thinks that Mr. Ledwith was not present when he was asked to write the will. He said that the daughters did not state what the will was to contain. He says he was then professionally visiting Julia Ledwith. Melissa Bass says that about a week after James Ledwith, Jr., died, his sisters told her that their brother’s wife would never get a cent of their money because her mother had spent her father’s money. The husband of this witness testifies that he overheard the same conversation. He says, “ They said that they didn’t think she [the respondent] would get any of their father’s money to spend, because her mother had spent her father’s property, and they didn’t think their father would give her any of his money to spend.” He says that his wife argued for the child of the deceased brother, and that Julia said that the respondent would not get any of the father’s money to spend, “ anyway; ” that she need not expect it, to which Annie added, “ She won’t.” . Maria Gillespie relates that prior to the first call of Mr. Kelly, in February, 1890, she went to the dining-room door in Mr. Ledwith’s house and saw Mr. Ledwith and his daughter Annie standing together by the table in the dining-room, and overheard Annie say to her father that the respondent did not need anything; that she had enough; that if she did not have enough to let her work for it, and heard Mr. Ledwith reply yes ” or “ aye.” She says, also, that at another time Annie said to her (the witness) that the Quinn family was extravagant, and the respondent would be extravagant; that they were not going to let them spend “their” money; that the child would be left something, but not his father’s share; that they were going to have their father make a will, and they were sorry he had not done so before, for if he had, trouble in the future would be saved; that they didn’t suppose that the child, Vincent, would live long; that they thought he was too frail a .child to live; that if he should die his share would go back to the Ledwith family; that they, would be pleased if he would die; that he would not be brought up properly; that if he was not there, trouble would be saved. The witness says that at one time she heard Mrs. Claffey say that the respondent was extravagant; that she (Mrs. Claffey) wanted her brother to come home and live, and that his wife might come or she might stay where she was, as she pleased. It does not appear whether this was said before or after the brother’s death. She also says that the daughters told her that their father did not like his son to marry Miss Quinn. She does not say when this was said to her. Jennie Gillespie, the sister of Maria, testifies that before the will was made and while it was under consideration, Mrs. Claffey said to her that her brother’s child, Vincent, would not get his father’s share; that they didn’t think he was entitled to it; that Vincent’s mother would not get anything; that she could work; that she was extravagant; that if she got their money she would use it extravagantly; that they wished that Vincent was dead, for he would cause trouble later on, and that if the will had been made before it would cause less trouble. The witness also states that about two years after the marriage of the son to the respondent, Mrs. Claffey told her that her father said that he did not like the family into which his son had married. Peter J. Christopher says that while the will was under consideration, the fact that Mr. Ledwith was making a will was talked about by the neighbors, and that he went ’to Mr. Ledwith’s and there saw the' daughter Julia and said to her, “Don’t you think that you are doing wrong by robbing your brother’s child of that property by making a will ? The old man is not competent, in my judgment, to make a will.” And that Julia replied, “Mrs. Quinn has spent the children’s money, and we have made up our minds that Minnie shan’t spend ours. We will look aftgr that child.” Thomas Ledwith says that a month or six weeks before the will was executed he heard a conversation between the daughters and the father, at which the father said that he would leave his grandson $100, and the daughters said that the sum was too small, and the father then said he would give $1,000 to the child and no more. He said that Mrs. Quinn’s family was extravagant, and he did not want to give them money at all. It is remembered that Mark Dewsnap- testified that after the son’s death Mr. Ledwith told him that he did not wish his money squandered- in the family in which the son had married, and that he did not like the family. It is also noted in the cross-examination of Mrs. Keenan that when Mr. Ledwith told her not to give the respondent any of the rents, he had just been talking to his daughter Annie, who asked Mrs. Keenan to come over to where she and her father stood, and when Mrs. Keenan came, told her father to tell the witness what he wished, for they were in a hurry to go.

It is apparent from this testimony that Mr. Ledwith’s daughters were very decidedly averse to their father making any substantial gift to his daughter-in-law or to her children. They were unwilling that she or her children should have that which they called their brother’s share — one-third of their father’s property. This unwillingness appears to have grown out of a disapprobation of the character of the family into which the younger James Ledwith had married, rather than out of a cause personal to the respondent, as though prompted by some petty jealousy of the family of the sister-in-law.

Immediately after the son’s death the feeling against his wife found vent. Mrs. Keenan was instructed not to give her any of the rents. Whether the idea of this instruction originated with Mr. Ledwith or with Mrs. Claffey does not appear. Mrs. Claffey, at least, aided its communication to Mrs. Keenan. It was a week after the son’s death that the daughters told Melissa Bass, first., that they did not think that the father would give the respondent any of his money, and then, that he would not do so. It was later that Murray, acting under a letter of instruction from Mrs. Claffey, declared to Van Benschoten, “ ‘ We’ want to get the old gentleman to make a will; ‘we’ don’t want the money to go out of the family;” and it was yet later that Maria Gillespie, through a partially-open door, heard Mrs. Claffey telling her father that the respondent did not need anything; that she had enough, and, if not, to let her work for it, and that the daughters declared to her they would have their father make a will.

It does not appear that the daughters were inimical to the respondent’s child. They thought it was a delicate child and would not live. They recognized its claim upon their father’s bounty, for Julia told Peter Christopher that they would take care of it. The great burden of their apprehension seems to have been that some of the father’s money might go to the Quinn family and there be extravagantly expended.

The testimony shows too much intelligence in Mr. Ledwith when the will was made to admit of much argument to the effect that the document was imposed upon him and executed without his appreciating that it was his will. In holding that there was such an imposition, the honesty and truthfulness of the subscribing witnesses and Thomas Ledwith must be almost wholly disbelieved. Such disbelief cannot be justified under the proofs. Besides, the declaration of Mr. Ledwith to Mark Dewsnap, at some time during the process of will-making, that he did not like the family into which the son had married, and did not wish his money squandered in it, and his reiteration of the same idea in presence of his brother when he substituted $1,000 for $100 as the amount of the bequest to his grandchildren, exhibit that he knew what he was doing.

There exist, however, indicia of undue influence, which the contestants claim should be regarded as sufficiently strong to induce the rejection of the instrument.

This is a summary of them : An intent upon the part of the daughters to procure just such a will as that made; the authority which their daily presence and ministrations to the comfort of the old man gave them over him; the mental enfeeblement of the old man, which made him susceptible to every influence his daughters, who had his confidence, might exert; their exclusion of the respondent from an interview with the old man after the son’s death; their declared determination to have their father make a will; their instrumentality in procuring a. scrivener for the will; the urgency of Mrs. Claffey’s visit to New York to hurry the scrivener in the performance of his work; the appeal to Dr. Neer, while the scrivener delayed, to prepare the will; the presence of the daughters at, and participation in, every stage of the preparation and execution of the instrument; the fact that Mrs. Claffey told her father that the respondent did not need assistance and should work; the outcome — an instrument which makes precisely the provision the daughters said it should make, which gratified their enmity, and gave them, substantially, the entire estate, and the failure of Mrs. Claffey to submit herself to examination as a witness and explain her participation in the production of the will and deny the exertion of undue influence upon her father.

I eannot avoid the conclusion that these circumstances threw the burden upon Mrs. Claffey to show that undue influence was not exerted. Dale v. Dale, 11 Stew. Eq. 274, 276; Waddington v. Buzby, 16 Stew. Eq. 154, 161, 162. Their force is not negatived by the opinions of the subscribing witnesses, nor by the absence of clandestinity at the execution of the will. Nor is the burden borne by the showing that, at some time during the months covered in the process of will-making, the old father echoed the argument of his daughters, that the respondent’s family were extravagant, and would squander his money. It may be that, in his enfeebled state, this argument had been so constantly kept before him as to take possession of him and become irresistible and drive out all other considerations. It is remembered that for years his daughters had been his constant companions; that they had managed his business affairs for him, and had performed the most menial and disgusting offices in ministering to his comfort; that in every sense he had become dependent upon them, and that, at this very juncture, they were vehement in their opposition to the natural claims of the respondent’s children. There could be little doubt that recognition of these claims in a degree proportionate to the son’s distributive share in his estate, if he should die without a will, would give serious offence to the daughters. They had communicated their wishes to him. When he came to act, they were present, supported by their cousin, Murray, who had declared, that he and undisclosed others, constituting the “we” in his declaration, don’t want the money to go out of the family, and the lawyer called by that cousin. The atmosphere in which he acted was apparently filled with influences against an adequate recognition of his grandchildren. His meagre proposed award of $100 to them indicates that its influence upon him was strong — beyond the wishes of even his daughters. It was their influence which caused him to raise the sum to $1,000.

I think that under the proofs, left in this condition without explanation from Mrs. Claffey, the orphans court properly decided against the will on the ground of undue influence.

The decree questions the rightfulness of the allowances made by the orphans court. I think that the case was one in which allowances could lawfully be made. In amount they appear to be very liberal; I think sufficiently so to cover all services and expenses of the litigation to this time. I will not make further allowances.

The decree will be affirmed.


text:
    Catharine Ann Salter v. Stephen D. Ely and Joseph Addison Ely.
    [Filed February 1st, 1898.]
    1. The mere fact that a favored legatee and devisee denounces those who are discriminated against to a testator who is well in body and strong in mind, and surrounded by friends, and within reach of the protection of those who are denounced, is not sufficient to create a presumption against the instrument.
    2. A party alleging undue influence in the execution of a will must prove it either directly, or by proving such circumstances as will warrant a presumption against it.
    On appeal from a decree of the Monmouth county orphans court, which admits to probate paper-writings purporting to constitute the last will and testament of Joseph J. Ely, deceased.

      Mr. Robert Adrain and Mr. Clarence Linn, for the appellant.

      Mr. Woodbridge Strong and Mr. John J. Ely, for the respondents.
   The Ordinary.

The disputed paper-writings consist of a will, dated and executed on the 10th day of November, 1893, and a codicil thereto, dated and executed on the 15th day of August, 1895. Both instruments are in the handwriting of Joseph J. Ely. The will contains eight paragraphs, in addition to an attestation clause which exhibits compliance with all statutory requirements in the. execution of a will. The will provides that the debts and funeral expenses of Mr. Ely shall be paid; that his body shall be buried beside the grave of his first wife; that a plain monument shall be placed at the grave; that five grandsons, named, shall each have $100, and that two granddaughters and a daughter-in-law, named, shall have certain furniture, silverware and china, divided among them as the will designates; that a safe, a surveyor’s compass and $2,000 are bequeathed to Joseph Addison Ely, a son of the testator; that the testator’s library is bequeathed to the same son and the children of that son; that a wood-lot of four acres is devised to the testator’s son Stephen ; that a house and lot in Hightstown is devised to the testator’s daughter Catharine; that two houses and two lots in Hightstown are devised to the testator’s daughter Matilda, and that another wood-lot is devised to the testator’s spn Addison; that there shall be no charge for gifts theretofore made or thereafter to be made by the testator to his children; that the testator devises and bequeaths the residue of his estate to his two sons, Stephen and Addison, and appoints those sons the executors of the will, authorizing them to sell land not specifically devised, and to employ counsel to advise them, and gives them three years for the performance of their duties. The will also revokes all former wills.

The codicil, a shorter instrument, ratifies and confirms the will, except so far as it changes it, and then proceeds to take from the son Stephen the wood-lot which was devised by the will to him, and gives it to the son Addison, and to give the testator’s library exclusively to his son Addison, and to bequeath to the same son some surveyor’s field-books and two writing desks, and to bid him to take good care of the testator’s law dockets.

The validity of the will and codicil is assailed upon the insistence that Mr. Ely lacked capacity to make them and that they were the product of undue influence exerted over him.

Mr. Ely was a lawyer and surveyor who found occupation in those pursuits, for the greater part of his life, in the counties of Mercer and Monmouth sufficiently remunerative to enable him, with frugal habits, to make considerable gifts to his children and leave at his death, which occurred on the 13th of September, 1895, at the age of eighty-two years, an estate valued at about $30,000. He was an eccentric man, possessed of much more than ordinary ability. He was high-tempered, easily provoked and bitter and vindictive towards those who offended him. His first wife, the mother of his four children, died in 1872. After her death, to economize, he took up his residence with his son Stephen, with whom and his son Addison he continued to live for twenty-three years, until his death in 1895, with the exception of a few months in 1886, during the life of his second wife, who survived their marriage a short time, with whom he lived those months at her house in Hightstown. His son Stephen lived in Hightstown until after 1880. His daughter Catharine married a man named Salter and lived in Hudson county. His daughter Matilda married a man named Perrine and lived in Mercer county, some eight or nine miles from Hightstown, and his son Addison lived on a farm in Monmouth county, four or five miles from Hightstown.

In February, 1880, Mr. Ely fell at a railway station and cut his head, upon which ensued blood-poison, which subjected him to a long, dangerous and painful illness at the house of Stephen, at Hightstown, from the effects of which illness he never completely recovered.

While, it is shown that Mr. Ely was physically feeble after his illness in 1880, and that at times thereafter he exhibited a mental lassitude, it clearly appears that he possessed more than ordinary intelligence and abundant testamentary capacity when he executed both the will and the codicil. It is not shown that he was ever without testamentary capacity. As has been stated, both the will and the codicil are in his handwriting, and, as appears by inspection of those instruments, the former is long and to some extent complicated. Its contents evince that the draughtsman had a knowledge of Mr. Ely’s property, and the natural objects of his bounty, and also a consideration of those who immediately surrounded him and daily ministered to his comfort, of his burial, of gifts he had made and might make to his children, and the appointment of executors and their equipment for the performance of their duty. By the codicil, prepared two years later, the draughtsman evinces that he had a thorough knowledge of the provisions of the will, which, after trivial alteration, were ratified and confirmed as constituting a maturely-considered testamentary act.

Competency is not only shown by the instruments themselves, but also in the circumstances which attended their execution and preservation.

When the will was executed Mr. Ely resided with his son Addison, some nine miles from the county court-house, yet he took the precaution and trouble to drive to the court-house and there see the surrogate, whom he had known for twenty-five years, at that gentleman’s office, and request him to be one of the witnesses to the will, and then to consult with the surrogate as to the other witness to the will, stating that if there were any of 1ns old friends about, who would act as such witness, he would like to secure the service of one of them, and, at the suggestion of the surrogate, to go alone to the county clerk’s office and see Holmes Murphy, the deputy county clerk, whom he had known for thirty years, and request him to be the other witness, then to return to the surrogate’s office and bring the surrogate to the county clerk’s office, where the will was executed. At Mr. Murphy’s suggestion, because of Muiqffiy’s advanced years, he asked Mr. White, a younger man there, to act also as one of the witnesses. These three gentlemen so narrate the circumstances attending the execution of the will as to satisfy me beyond all doubt that Mr. Ely fully realized and comprehended the business in which he was engaged. Their testimony shows that he intelligently directed every detail in the proceeding.

This was on the 10th of November, 1893.

When Mr. Ely left the county clerk’s office he took the will with him, and apparently retained it till the 12th of the next month, when he drove to the Allentown bank, in which he had a deposit, and delivered it in an envelope to the cashier, at the suggestion of the cashier writing upon the envelope his instructions as to its disposition. He took the precaution then to take from the cashier a receipt for it. Previously he had made a copy of it with his own hand, which was found in his safe, at his son Addison’s, after his death.

The codicil was executed about a month before Mr. Ely died, at the house of Addison, in the presence of the physician in attendance upon Mr. Ely and a neighboring farmer, for whom the testator sent to act as a witness. He had not previously communicated with the farmer, but two days before the execution of the codicil he told his physician that he wished to execute a codicil to his will, and he would like the physician to be a witness to it. When the codicil was executed he was feeble physically, but clear in his mind. He sat at a small table which the farmer, Mr. Jobes, placed before him, and directed every step in the proceeding in strict conformity with the statute’s requirements. He explained to the witnesses that the paper he produced was called a codicil to his will; that it made a change in the will, and that he would like to have the fact of his executing it kept quiet. It appears that he put this instrument in his safe, where it was found after his death with the copy of the will. The testimony of the subscribing witnesses to the codicil satisfies me that the testator was fully competent to make that instrument.

Passing to the second ground of contest — the contention that the will and codicil were the product of undue influence.

The position of the contestants is, that such influence was exerted over Mr. Ely by his son Stephen. It is almost needless to say that undue influence is the destruction of free agency. It is that which constrains a person to do what is against his will, and what he would not do if left to himself, no matter by what means the control is exercised. There is no direct proof that Stephen procured or was instrumental in making either the will or the codicil. As I understand the contestants, their contention is that Stephen entertained a vindictive hatred of his sistersthat he had repeatedly declared that they should not participate in his father’s estate, and that through his high temper and violence towards his father, he so dominated the father as to induce the making of a will which practically disinherits the daughters, it appearing that the property devised to them is scarcely five per cent, of the value of that which was bequeathed and devised to the sons.

Apparently the will is an inofficious instrument, but the proofs do not disclose that Stephen intermeddled in any way with the preparation of it. At best they show that he visited his father more or less frequently during the latter years of his father’s life, and that occasionally the high and somewhat intemperate tones in the voices of the father and son would indicate that they were quarreling. It shows, also, that he and his father would drive about the country together, while the father was able to do so, and that Stephen was cognizant of investments offered to his father and made by him; but at the same time it discloses that in the last year or two of the old man’s life, as he became more feeble physically, and. less able to go about, Stephen’s visits became so infrequent that at one time months elapsed between them, and the father sent for him. When it is remembered that the testator lived at his son Addison’s house, and bad lived there from 1881 till he died, in 1895, and that the brothers, Stephen and Addison, had quarreled and had not spoken to each other for many years, it is not perceived that much opportunity offered for the exertion of a continuous coercion on Stephen’s part which could induce the making of two instruments, twenty-one months apart, both of which adhered to the same testamentary purpose.

It can scarcely be doubted that Stephen was selfish, jealous, parsimonious, high-tempered and viciously vindictive, partaking, to some extent, of the mental characteristics of his father, and that it was habitual with him to inveigh with bitterness against his sisters, not only to his father, but to others also, and that although he was the recipient of frequent gifts from his father, he was jealously disturbed when like gifts were made to his sisters, and would tell his father that they had had enough ; that they had husbands and did not need more. I am impressed that the father understood and pitied his son’s weakness, but I fail to find that he feared him.

It is shown that Mr. Ely and Stephen were, at times, the best of friends, and that at other times they would quarrel and keep aloof from each other. Mrs. Salter testifies that her father told her that Stephen was high-strung and unevenly balanced, and could not avoid the violent conduct of which she complained.

During Mr. Ely’s illness in 1880, Mrs. Salter and Stephen were assiduous in their attentions to him, at the same time each resented the presence of the other, regarding each other with suspicion and distrust. As the father convalesced, their strained relations culminated in Stephen’s ejection of his.sister and a nurse from his house. Later in that illness, Stephen quarreled with his father and left the house himself, and Mrs. Salter returned to it. It is quite evident, from the letters of the father to his daughter immediately thereafter, that she had won his confidence and gratitude, and that Stephen was under his condemnation. The proofs make it evident that for two or more years after that time there was an estrangement between Mr. Ely and Stephen, during which Stephen exhibited a vicious vindictiveness against his father, and it appears that during this time Mr. Ely made a will which, he declared to the attesting witnesses, left Stephen “very little.” But the proofs show, also, that after 1883 the father and Stephen became reconciled, and that thereafter their intimacy and friendship varied as has been stated.

There is some evidence that once, about the time of the execution of the will, Stephen drove with his father to Freehold, but that evidence is entirely too vague to justify more than a suspicion that it was on the day the will was executed. One witness says that he saw someone apparently attend Mr. Ely to the door of the surrogate’s office; but he does not identify that person, nor is he able to say that the person was in fact in attendance upon Mr. Ely. There is not a particle of evidence to show that in the time intervening between the execution of the will and the deposit of it by Mr. Ely in the Allentown bank Stephen even saw his father, or that Mr. Ely was not entirely free to destroy the will if he had wished to do so. When he went to the Allentown bank he drove with a young grandson and intelligently and in apparent freedom from all restraint, deposited the will there.

A fact that militates against the theory that the will was Stephen’s production is, that although when the will was made Stephen was quarreling with his brother Addison, and had not spoken to him for years, it gives to Addison and his family the largest share of the father’s estate and associates the brothers in the executorship. It does not appear to be probable that Stephen would coerce such provisions.

I do not deem that because the will is inofficious a duty is imposed upon the court to find a reason for the inofficiousness before it can declare in favor of the will. Nor is that duty cast on those who are to take under the will if they did not partake in its production. A man may dispose of his property as he pleases. He may do injustice if he has testamentary capacity and acts freely. Smith v. Smith, 3 Dick. Ch. Rep. 566, 590. However, it is insisted that the proofs will warrant the inference that prior to the making of the will Mr. Ely presented $8,000 to each of his daughters, which in the will he protected from the rapacity of Stephen by provision that no charges should be made for past or future gifts to his children, and will justify the belief that the daughters may have been discriminated against because of their opposition to his second marriage and their participation in the circulation of, or belief in, stories derogatory to his moral character. I do not mean to say that either of these explanations has been proved to my satisfaction. They serve to illustrate that reasons may have existed, independently of unlawful influence, to induce the testator to make the disposition of his property he made.

Another possible reason is presented, when it is considered that for more than twenty years Mr. Ely lived with one or the other of his sons free of expense with the avowed object of an economy in his expenditures, which enabled him to accumulate at least a large part of that which the will gives to them.

Much importance has been attached to the failure of the proponents to examine Stephen as a witness-in the case. I do not think that such failure can be fatal to this will. The indicia of undue influence in this case are not strong enough to shift the burden of proof. The mere fact that a favored legatee and devisee denounces those who are discriminated against, to a testator who is well in body and strong in mind and surrounded by friends, and within reach of the protection of those who are denounced, is not sufficient to create a presumption against the instrument. Dumont v. Dumont, 1 Dick. Ch. Rep. 235. The party alleging undue influence must prove it, either directly or by proving such circumstances as will warrant a presumption of it. Id. 230.

Here, not only has the proof failed to show such circumstances, but, on the contrary, by the testimony of five subscribing witnesses and a bank cashier it has pointed to an intelligent, competent and self-controlled testator.

I will affirm the decree appealed from.