Summary
decreasing loser's counsel fee but not revoking it entirely
Summary of this case from In re ReisdorfOpinion
Argued and submitted October 23d 1929.
Decided May 19th, 1930.
On the facts as shown by the evidence in this case, held, that the prerogative court correctly found that the will of the above named deceased was not the product of undue influence, conspiracy or fraud, and that the testator at the time of making said will was of sound and disposing mind, memory and understanding.
Appeal of Charles Burnham Squier from a decree of the prerogative court on appeal from the Union county orphans court, admitting a will to probate. The decree in the prerogative court was advised by the late Vice-Ordinary Bentley, who filed the following conclusions:
"In November, 1926, Edward M. Squier died leaving a will which has been admitted to probate. An appeal has been perfected on behalf of Charles Burnham Squier from the decree of the orphans court, affirming the order of the surrogate admitting the will to probate. From a subsequent order of the orphans court of Union county, there is a cross-appeal from so much thereof as allows the sum of $22,500 counsel fee and $1,500 for disbursements to the proctor for this contestant.
"The decedent appears to have been a member of a rich family, who was engaged about his affairs until within a few days of his death, and then appears to have been smitten with an ailment that would not have been a serious one except for his advanced age, which developed into pneumonia and caused his death. His will first devised to the city of Rahway his home and the curtilage upon which it stood, for the use of a park; secondly, he established a fund of $10,000 for the care and support of the horses owned by him at the time of his death; thirdly, he made certain charitable bequests; fourthly, some private bequests; fifthly, bequests of $5,000 each to his nephews and nieces, after which the will reads:
"`I make no further provision directly or indirectly for my nephew Charles Burnham Squier, as he was and will be the sole beneficiary in the interest of his father, if living, would have received from the trusts created by the will of my father, William C. Squier.'
"The will next makes some unimportant disposition of certain chattels and then provides for the division of the residuum between his surviving brothers, Stuart and Frederick, and the appointment of executors and certain instructions to them. The point of the appeal by Charles Burnham Squier (who will be called the contestant, for convenience's sake) is indicated by the portion of the will just quoted. His father predeceased the testator and also the testator's father, William C. Squier, so that, as the will has pointed out, the contestant (an only child) took from his grandfather's estate all that his father would have taken had he been living when the grandfather died.
"In the orphans court a great deal of testimony was taken under several petitions and amended petitions. The original petition of appeal set forth three grounds alleging testamentary incapacity, undue influence and non-compliance with the requirements of our statute as to execution. The first amended petition of appeal added to those grounds the further charge that the will was procured as the result of a conspiracy among a large number of people, most of whom are or were related to the contestant by ties of blood or marriage, and also that it was procured by fraud practiced by the same persons upon the testator, and, finally, that it was the result of a mistake. The second amended petition reiterates the same grounds of appeal as the first amended petition.
"During his lifetime the testator appears to have been friendly with the members of a firm of lawyers practicing in New York City. He leased from this firm an office in their suite from which he carried on his business activities. One of the members of the firm, Mr. Augustus S. Houghton, was associated with the testator as a trustee of the estate of William C. Squier, and there was apparently quite a friendship between them of the kind to be expected between a rich, elderly man and a much younger one who had married into his family. It is against this gentleman that the contestant launches his chief attack. Mr. Houghton has married into the Squier family, and from that it is argued that he became the directing head of the conspiracy by reason of his legal education and his personal interest in the Squier fortune. It would be an intolerable task to analyze and explain why there is not a scintilla of proof to substantiate this charge of conspiracy. Both in the orphans court and this court witnesses have been called, examined and cross-examined in a prospecting expedition, founded upon the hope that something might be turned up which would raise a suspicion. I have read through the testimony which the judge of the orphans court so patiently heard, and for three days I listened to what was principally, as the journalistic fraternity would call it, a rehash of the testimony in the orphans court. The result of all my investigation leads me to say without hesitation that there is not a scintilla of proof that Mr. Houghton, or any of the others charged, were guilty of any fraud, undue influence or conspiracy.
"Neither is there anything to make it appear that the exclusion of the contestant from the residuary estate of his uncle was in any respect the result of a mistake upon the latter's part. The thing is as plain as facts and circumstances well could make it. A good many years before the execution of the will in question the contestant's grandmother died and left a will which appears to have been read at a family gathering. The contents of that will also appeared to have displeased the contestant who, after having heard the reading of it, in the language of his uncle, `got up, and said he was going to contest the will because my mother was very tricky.' The effect of this brutal statement at such a time had upon the other members of the family present the result that might have been expected. This was the undoubted reason that the testator did not desire the contestant to share in his estate. Matters of this sort are not ordinarily spread upon the face of a will, and the testator cut off this nephew with $5,000 in the manner that has already been described. Afterwards, under date of February 28th, 1913, the testator wrote a letter, apparently in response to one from the contestant, which is too long to be reproduced here but which shows as clearly as words can perform their office, the opinion that the testator had formed of the contestant. The letter breathes sarcasm. Among other things, it says: `I am pleased to learn that you have at last arrived at the conclusion that my mother had a perfect right to leave her money in any way she wished.' Again it says: `I should think you would be ashamed of yourself to even intimate that my mother was unfair and tricky, and the only conclusion I can arrive at, judging from your actions at my mother's funeral and from what you have written me, is that you have gone crazy on the subject of money, or that you were only acting the part of a hypocrite and never loved your grandmother, but loved only her money.' Again he says to his nephew: `That you are superior to the generation to which you belong is flatly contradicted by your recent acts and words which have desecrated the memory of your grandmother, whom you at least pretended to love.' Finally, the letter closed:
"`I have no hard feelings except as may be occasioned by your conduct. I may, under certain conditions, forgive the harsh words you used about my mother, but I do not think I will ever forget them as long as I live.
If there appears to be anything harsh and unfeeling in this letter it is only because your letter suggested it. There is one thing I can never forget, and that is, that you are a son of my brother Charlie.
Yours very truly, E.M. Squier.
"Through all the testimony there runs the indication contained in the last sentence just quoted, namely, that the Squiers were a close-knit family; that great respect and affection existed among them. It is fair to assume that the testator venerated and loved his mother and her memory, and no great knowledge of human nature is required to appreciate the outraged feelings of this man when he heard that memory `desecrated,' as he says, almost on the morrow after her form had been laid to its final rest. Edwin M. Squier made no mistake.
"The attempt to prove lack of testamentary capacity has utterly failed. It is proverbial to what lengths disappointed kin will go to secure a large estate or a considerable portion thereof, but I will undertake to say that no more shocking instance has been presented to any court in an attack upon the mental capacity of the testator than appears here. The sum total of the testimony is that this man in his lifetime smoked cigarettes in very large numbers and that from a cellar which he seems to have stocked before January 16th. 1920, he occasionally imbibed intoxicating beverages to such an extent that made their effect upon him visible. There is not one direct word of insanity or of any fact upon which insanity might be predicated.
"I have read the exhaustive collection of authorities that counsels' industry has incorporated in the brief on behalf of the contestant. Of course, no one will quarrel with them; but the difficulty is that they have no application to the fact in the case sub judice.
"The remaining subject to be decided is the appeal from the order of the orphans court allowing $24,000 to contestant's proctor in that court for counsel fee and disbursements. It has been said time and time again that where there is disparity in the distribution of an estate by will, one who is the loser thereby should be entitled to have it clearly proved that the testator executed the will, realizing that it was his testamentary act. This policy of the law is encouraged by allowing to such a contestant his costs and counsel fees out of the estate. But when such a litigant goes beyond this, and continues the litigation by a protracted trial with the necessary delay and expenses it is within the discretion of the court not to make any such allowance. Collins v. Townley, 21 N.J. Eq. 352. In the case at bar, it seems to me that it must be apparent to any disinterested person that the contestant must have known from the very beginning that this suit could not prevail. It is not a violent assumption to suppose that one is more or less familiar with the activities and conditions of his close relatives, even though, as here, he may be estranged from them. From this it will follow that the contestant must have known from the beginning that the testator was a man of rather large affairs, financially, engaged in business and other activities that would have made it imperative that he be of at least normal intelligence and clearness of mind. In fact, after the proof of the testator's consumption of cigarettes and intoxicants there was no attempt made to prove the charge in this connection. By the time the matter reached this court all of the astounding allegations had been abandoned except the main attempt to prove the exercise of undue influence by Mr. Houghton. Even that proof was confined to the effort to arouse suspicion in the court's mind. There was not one scintilla of evidence produced from the beginning to the end to impeach the professional honor of this lawyer; not one word by a witness or otherwise to show that he had done anything more in his relations with the testator than to honestly advise him when so requested to do. Not a word anywhere by anyone who happened to have overheard him try to poison the mind of the testator against the contestant. Not a syllable of admission against interest; not a scrap of paper to make it appear that he had made any effort to do so. The sole attempt has been to play on the friendship which seems to have existed between this lawyer and the decedent and to magnify their relations into that of the ordinary relationship of attorney and client, in the hope, as I have just said, that a suspicion would be engendered that would cause the court to color and misconstrue every word of testimony.
"It is disagreeable, as anyone may suppose, to interfere with members of the bar securing compensation for their efforts, but this life is very largely made up of the performance of disagreeable duties and I cannot divest my mind of the firm conviction that it is my duty to reverse the orphans court, in so far as the allowance to contestant's counsel is concerned. The courts have raged for years against the attempts of individuals to loot estates by litigation of this character, from the case cited down to the case of In re Wandell, 92 N.J. Eq. 195. This court and the court of errors and appeals have done what they could to discourage such raids. The court of errors and appeals refused any further allowance in the Wintermute Case, 28 N.J. Eq. 437. And Chief-Justice Beasley intimated that the allowance in the court below would not have been allowed to have stood undisturbed if it had been included in the appeal. Vice-Chancellor Backes, in the Sebring Case, 84 N.J. Eq. 453, said, in circumstances comparable to those presented here, that to reimburse the contestant in that case would have been to have revived the old practice denounced by Chancellor Green in Perrine v. Applegate, 14 N.J. Eq. 531.
"The testimony taken in the orphans court runs over four hundred and ninety-three pages which are replete with statements by the court indicating that he was allowing the widest latitude in the examination and cross-examination of witnesses by counsel for the contestant. He indicates again and again that the great bulk of the testimony was of no assistance to him in passing upon the truth of contestant's charges. It seems to me that he must have realized, and counsel must have understood, almost at the threshhold, that if he showed everything he hoped to show, it would not prove undue influence, fraud, conspiracy, testamentary capacity, or informality of execution.
"Sight has not been lost of the chancellor's warning in the Wandell Case, supra. It seems to me that it `quite conclusively appears that the contest below developed no reasonable ground for further litigation' or for any litigation beyond the proper execution of the will and the testator's understanding that it was his will.
"I suppose that under the rule the contestant must be held to have been justified in initiating this litigation and carrying it to the point where the rule was satisfied, and for that purpose it seems to me the orphans court might have made an allowance of $5,000 when the magnitude of the estate is considered. There is some disagreement as to its exact size, but it seems to be of no moment whether it is approximately $5,000,000 or $6,000,000.
"I will advise a decree dismissing the appeal of contestant and modifying the order allowing counsel fee by reducing the same from $24,000 to $5,000 out of which disbursements will have to be paid."
Mr. Frank Hendrick (of the New York bar), for the appellant.
Mr. Woolsey A. Shepard (of the New York bar) ( Mr. Thomas J. Brogan, on the brief), for the respondents.
The decree under review will be affirmed (with a minor qualification presently to be noted), for the reasons stated in the conclusions of the vice-ordinary.
The qualification is that the concluding language of the opinion seems to read for a dismissal of the appeal instead of an affirmance of the decree of the orphans court; and this language seems to be carried into the decree of the prerogative court. This is a mere slip of the pen, for it is clear that the affirmance was intended and should have been decreed. With this formal modification the decree is affirmed. For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, BLACK, CAMPBELL, LLOYD, CASE, BODINE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, JJ. 12.
For reversal — None.