Opinion
Argued May 23d 1933.
Decided September 27th, 1933.
1. The right of testamentary disposition may be exercised by a person of very moderate mental capacity. If he is capable of recollecting of what his property consists and who, either in consequence of ties of blood or friendship, should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants to make of his property after his death, he is competent to make a valid will.
2. The presumption of law is in favor of testamentary capacity and the burden of proof to show that the testator had not such capacity is on those who attack the will.
3. Testator, by codicil, expressly ratified every clause of his will, except that he took $500 from the residue for a special bequest. This was in effect a republication of the whole will, except so far as altered.
On appeal from the decree of the orphans court of the county of Bergen, admitting to probate certain paper-writings as the last will and testament and codicil thereto of Morris Ernest Triebe, deceased.
On appeal from a decree of the prerogative court advised by Vice-Chancellor Fielder, who filed the following conclusions:
"Morris Ernst Triebe died March 10th, 1931, leaving him surviving his widow and two sons as his only next of kin and heirs-at-law. He left a will dated May 12th, 1927, whereby he gave $100 to his wife; $50 to each of his two sons; $1,000 to his executors to defray funeral expenses and erect a tombstone, and the residue to his brother, Gustav, a resident of Germany. By codicil dated November 13th, 1930, he confirmed his will, except that he provided a bequest of $500 to Benjamin McLaughlin, or Catherine McLaughlin, his wife. The will and codicil were admitted to probate by the surrogate of Bergen county and thereafter the decedent's two sons petitioned the Bergen county orphans court to set aside the probate on several grounds, the important ones being that the will and codicil were not executed as provided by statute; that the testator lacked testamentary capacity and that he was unduly influenced by the persons named as his executors, in the making of the will and codicil. The orphans court affirmed the surrogate's order and from the orphans court's order the testator's two sons appeal to this court.
"The appeal was argued on the record from the orphans court. Much of the testimony taken in that court is immaterial, trivial and repetitious. From it I gather that the testator was of German birth, nearly seventy years of age at his death, eccentric, of a hasty temper and when his boys were young, a stern and irascible parent. He suffered from frequent and severe headaches (which may explain his quick temper); otherwise he was in good health for a man of his years, up to about two months prior to his death. As evidence of his physical vigor it is noted that in the year preceding his death he chopped down large trees on the place where he lived, sawed logs into lengths and split them for firewood. He read, wrote, spoke and understood the English language. He was estranged from his wife and children, having separated from his wife sometime before he executed the will and thereafter he lived alone, somewhat as a recluse. His boys were of full age, married and self-supporting at the date of the will.
"As to the appellants' contention that neither the will nor the codicil was executed in accordance with the statute of wills ( Comp. Stat. p. 5867 § 24), I can find no doubt from the evidence that the testator signed both will and codicil in the presence of the persons who, at his request, subscribed their names as witnesses and that such witnesses subscribed their names in his presence and in the presence of each other and I find no evidence to support the appellants' contention that the testator was influenced or induced by anyone to give his estate to his brother, practically cutting off his wife and sons.
"The appellants further contend that the testator did not know or understand the contents of his will and codicil. The evidence shows that prior to the day he executed the will he called on the scrivener who drew it, having with him a memorandum of the provisions he desired inserted therein and told the scrivener what disposition he wanted to make of his estate and that the bequests and devises as contained in the will are according to the testator's instructions. The evidence further shows that the testator called on the same scrivener to draw his codicil, a day or so before he executed it and told him what provision he wanted to make by such codicil and that the codicil was prepared accordingly. The will is typewritten and it and the codicil are in the English language and the evidence satisfies me that before the testator executed them, they were read to him; that he also read both and understood their contents and declared them to be his will and codicil. The appellants seek to make much of the fact that the will contains several clauses which the draftsman says were not mentioned by the testator when he told the draftsman what disposition he desired to make of his estate. I find no merit in the argument on this point. These clauses have to do solely with powers thereby given the executors. They confer power of sale; authority to retain property owned by testator; to make investments; to distribute in kind, instead of turning the assets into cash upon distribution of the estate and to relieve the executors from liability for loss resulting from errors of judgment. The draftsman of the will and codicil is a civil engineer who had served a few years as a lawyer's clerk. He had had some experience in drafting wills and he copies the criticized clauses from a form he had previously used. It is the experience of every lawyer called upon to prepare a will that beside inserting therein the specific provisions directed by the testator, he adds other provisions which he believes necessary to effectuate the testator's wishes. In this case the criticized clauses were wholly unnecessary and neither add to nor detract from the directions given the draftsman by the testator, because the estate consists wholly of personal property and the executors' sole duty is to pay the testator's debts and legacies and turn the residue over to the testator's brother. Despite the fact that the testator did not instruct the draftsman to insert the criticized clauses in his will, the will as drawn was read to the testator and he read it, after which he signed it and declared it to be his will and he thereby adopted the criticized clauses as his own. Moreover, after the will was executed and witnessed, the testator took it and kept it in his possession three and a half years until he produced it for the purpose of having the codicil added. By the codicil he expressly ratified every clause in the will, except that he took $500 from the residue for a special bequest. This was in effect a republication of the whole will, except so far as altered. McCurdy v. Neall, 42 N.J. Eq. 333; In re Diament, 88 N.J. Eq. 552. After he had executed the codicil, he took it and the will and kept both in his possession nine months, when he gave the will and codicil to one of his executors to keep for him.
"The appellants' next contention is that the testator lacked testamentary capacity. The evidence shows that from about 1900 to 1922 the testator and his wife conducted a general store under the testator's name, in Westwood, in which community the testator lived and died and that after they sold the store in 1922 the testator and his wife lived in a comfortable home until 1926, when they separated for an undisclosed reason. The wife retained the home and he bought land on the outskirts of Westwood, on which he built a home and there resided alone until his death. The evidence shows that when the testator and his wife conducted the general store and after it was sold, the testator was in the habit of conveying merchandise, supplies and other commodities to the store, to the home in which he and his wife resided and to the home in which he afterward dwelt alone, in a little hand-drawn wagon along the streets and roads of Westwood. This habit is referred to as an indication of testator's mental weakness. Thirty years ago Westwood was a country village and the testator and his wife were small merchants. It was probably cheaper for them to haul by his little wagon from the freight or express office at the railroad station, the merchandise bought for their store, than to pay for delivery by horse-drawn vehicle and when buying their household supplies from the grocer and butcher, it was perhaps more convenient to carry them home in his wagon than to await the dealers' delivery, if in those days the grocer and butcher made delivery. I can see nothing indicating mental weakness, or even peculiarity, in the fact that a thrifty German drew his little wagon along the streets and roadways of that small community and that he persisted in the habit after Westwood grew in size, traffic increased, motor power replaced horse power and after he had been repeatedly warned by policemen that it was dangerous to draw a wagon through streets traversed by motor cars.
"The appellants also urged as an evidence of testator's mental incapacity, the fact that he left a comfortable home in which he resided with his wife and went to live in what they designate a "shack located in a swampy place." The "shack" cost the testator $2,000 to construct; it contained three rooms and was apparently furnished to the satisfaction of and was comfortable for a man content to live something of a camper's life in a small bungalow. He was fond of outdoor life, especially of fishing and he built his home in the woods, near a brook or small stream on which he kept a boat and in which fish could be caught. It was probably boggy in places but the house was approachable by automobile from the highway and surrounding it were fruit and other trees.
"The appellants further urge the fact that testator had a sister who had twice been confined in an insane asylum and twice discharged as cured, as evidence to be considered with other evidence, tending to show that the testator was mentally incompetent. They also urge that a medical expert on insanity, upon being asked a long hypothetical question intended to embody all the evidence adduced by the appellants tending to show testator's mental incapacity, replied that he considered the person described by such question incapable of making a will. I consider that testator's sister's temporary mental derangement has little or no bearing on the question of testator's mentality, especially in the light of the evidence produced in this case, and as to the expert's opinion in reply to a hypothetical question some of the alleged facts included in the question were not stated accurately, nor were all the relevant facts stated. But even assuming that the hypothetical question included a correct statement of all facts concerning the testator's life and acts which had been adduced to the time it was put to the witness, I would disagree with the expert's opinion that the man described had not sufficient testamentary capacity. And further, this witness had never seen the testator, while two other medical men who knew and had observed him, one for twenty-six years prior to his death and the other daily between January 20th, 1931, and February 16th, 1931, both testified that the testator was mentally a normal man.
"Beside the testimony of persons who had known the testator for years, that he was of sound mind, the case contains direct and convincing evidence that the testator was perfectly able to comprehend fully what he was doing when he executed his will and codicil. He helped to run the store conducted by his wife and himself, not with marked ability as a shopkeeper because of his temperament, but with sufficient ability as its responsible owner for twenty-two years, to make money. After he had built the home in which he lived from 1926 to his death at a cost of $2,000, he sold the property almost immediately for $3,000, retaining therein a life estate and accepting a purchase-money mortgage for $2,000, on which he collected interest and made out interest receipts to the time of his death and he appears to have conducted this transaction without outside advice. He loaned a neighbor $2,000 on mortgage covering the neighbor's home, the principal being made payable in installments and four receipts for interest and principal, wholly in the testator's handwriting, show that he was able to compute interest and to state the balance of principal remaining due after crediting the installment of principal received. He also kept a bank account. In 1926 he discussed with two friends, on separate occasions, the subject of making a will. To one he expressed the thought that he might provide a trust fund for his wife and sons, fearing to give them his whole estate outright and to the other he declared his intention of making either none or a small provision for his family, after that friend had urged him to give his estate to them. He did execute a will in 1926, but what it contained does not appear (except that it can be inferred from his letter hereinafter referred to that he made no better provision for his family than by his 1927 will) and he gave as his reason for executing the will here contested, the fact that an executor named in his 1926 will had died and he said it was therefore necessary to make a new will. I have referred to the fact that he gave instructions to the draftsman of his will and codicil as to the provisions thereof. The bequest contained in the codicil is to the neighbor on whose property the testator held the $2,000 mortgage and the testator showed his reasoning powers when he stated in the codicil that the bequest was made as compensation for services rendered and might be paid in cash, or deducted from the mortgage, at the beneficiaries' discretion. He explained why he made no further or other provisions for his wife and sons. To a friend who talked with him about going back to live with his wife, he said she would sell everything he had and that "they" had his sister in the crazy house and had tried to send him there. When he gave directions for the preparation of the will here in question he delivered to the draftsman a paper wholly in his own handwriting and signed by him to attach to the will, which paper was found in the envelope with the will and codicil after his death. It is dated June 9th, 1926, which is probably the date of the execution of his 1926 will and this paper is his posthumous statement that he was fully aware of what he was doing when he executed the will the appellants are now contesting. He said: `The reason I make my will this way is because I gave my wife more than I have kept myself already and the boys are not worthy of it. They won't appreciate one hundred dollars no more as they would five dollars. It might only would make them woirst from what they are. They are to lazy to work and the few dollars they make they squantered and whenever I have said anythink about it and tryd to straihten them up my wife took ther part.'
"The presumption of law is in favor of testamentary capacity and the burden of proof to show that this testator had not such capacity is on the appellants. Our courts guard the right of testamentary disposition jealously. They hold that this right may be exercised by a person of very moderate mental capacity. If he is capable of recollecting of what his property consists and who, either in consequence of ties of blood or friendship, should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants to make of his property after his death, he is competent to make a valid will. Ward v. Harrison, 97 N.J. Eq. 309; In re Halton, 111 N.J. Eq. 143. A will may be contrary to the principles of justice and humanity; its provisions may be shockingly unnatural and extremely unfair, nevertheless if it appears to be the free and unconstrained product of one of testamentary capacity, the courts are bound to uphold it. Middleditch v. Williams, 45 N.J. Eq. 726; In re Young, 90 N.J. Eq. 236; In re Haness, 98 N.J. Eq. 645; In re Halton, supra. The evidence satisfied me that this testator, at the time he executed his will and codicil, had ample testamentary capacity; that he knew and understood how he desired to dispose of his estate and that his will and codicil express his desire.
"The appeal will be dismissed."
Messrs. Kimmel Kimmel, for the appellants.
Messrs. Hart Vanderwart, for the respondents.
The decree under review will be affirmed, for the reasons stated in the conclusions of Vice-Ordinary Fielder.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.
For reversal — None.