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aggressor, and is responsible for any results, ant is any case in which the right of selfthat may result from such aggression. defense set up by the testimony was in the

"It is not the law that a man can make alternative, so that such right would be of himself the judge of his own situation. equal avail to the defendant whether the Whether he was in danger or bad reason- danger and necessity upon which he relied able ground for believing that he was is for his justification were actually establisha matter for you to determine, whether the ed to the satisfaction of the jury, or whethcircumstances were such as to satisfy you er they were found by the jury to have been that he was in danger, or had a right to reasonably apprehended by the defendant, think himself so, and whether he was, under although not really existant in point of fact. the circumstances shown, justified in using It is, however, equally clear that the omisthe force that he did use, and, if he had the sion of such latter instruction would be right to use force, was this force that he harmless to the defendant where the case used necessary to protect himself."

made by him was not susceptible of being This instruction viewed as a comprehen- submitted to the jury in the alternative unsive definition is faulty in two respects: der the proofs; for the right of the defendFirst, in that it extends the right to take ant to have his defense thus submitted to life to cases in which the defendant's ap- the jury depends wholly upon the state of prehension is that he may be harmed, where the testimony, and hence arises only when as such right is limited to apprehension of the testimony is of such a character that, if serious harm. This error was prejudicial, the existence of the actual danger or neceshowever, only to the state.

sity testified to by the defendant be found The other respect in which the instruc- against him, there still remains some as. tion is incorrect is that it draws a distinc- pect of the case made by the proofs that tion between the existence of the right of would warrant the submission to the jury of self-defense and the extent to which such the further question whether the defendant's right may lawfully be pursued, saying of the conduct might not be justified by the reasonformer that it exists whenever the defend ableness of his apprehensions, even though ant has reasonable grounds for believing the danger or necessity set up by his proofs that his life or body are endangered, and of did not in fact exist. We are speaking now the latter that, if a man "defend himself be- of cases like the present, in which the deyond what is necessary to protect himself, fendant's act of homicide, if the facts to he loses the right of self-defense.” If the which he testified be believed, was clearly word "necessary" in the language last quot justified. ed be qualified as it was in the preceding There are, of course, cases of triling as. clause by the words "or reasonably appears saults where the primary, and indeed, the to him to be so," the error complained of only, question, is whether a reasonable apwould be cured. Abstractly considered, how. prehension of danger was justified, but ever, the instruction in so far as it limit- where, as in the case now before us, the ased the extent of the right of self-protection sault upon the defendant, if made, was made to what was actually necessary was an er- with a deadly weapon accompanied by roneous statement of the law. The correct threats against the defendant's life, the prirule is that stated by Chief Justice Gum- mary question for the jury is whether such mere in State v. Bonofiglio, 67 N. J. Law, murderous assault took place, and, this fact 245, 52 Atl. 714, 54 Atl. 99, 91 Am. St. Rep. being resolved adversely to the defendant, 423, in which the existence of the right to there is no residuum of testimony or circumdefend oneself and the extent to which it stance to support a belief alien to such fact, may go are each made to depend upon what and hence no occasion for the submission to actually is or what reasonably appears to the jury of the reasonableness of the defendbe the necessity. “A man,” he says, “may ant's belief in the imminence of his danger, protect himself, even to the extent of tak- notwithstanding that the situation describing the life of his adversary when that act ed by him did not in fact exist. is or reasonably appears to be necessary in

In fine, where there are no grounds or order to preserve his own life or to protect circumstances going to the reasonableness himself from serious bodily harm." Under of the defendant's belief, apart from the the rule thus laid down, the jury is to test grounds and circumstances that go to prove the defendant's justification, not only in the the actual existence of the danger or neceslight of the actual situation as it is dis sity that confronted the defendant, if his closed upon the trial, but also in the light testimony be believed, the failure to submit of what the situation may reasonably have to the jury the reasonableness of the defendappeared to be to the defendant.

ant's belief is not an error by which he was The court's instruction, therefore as a gen- | injured. eral definition of the right of self-defense, This was the ratio decidendi of the case was erroneous. Whether it was injurious to of State v. Jones, 71 N. J. Law, 543, 60 Atl. the defendant in this particular case is 396, recently in this court. In delivering the another question. From the nature of the opinion in that case the Chief Justice said: error in the court's definition, it is clear that “The case that was before them (the jury] such error would be injurious to the defend- | did not present for their determination the question of the right of a man to take life was not loaded or that it was a toy pistol, or under circumstances where it was seemingly, that he was handling it only in sport, or any but not actually, necessary, to do so to pre other circumstance that raised the question serve his own life or to save himself from whether the situation was really, as the de grave bodily harm. If the story told by the fendant had testified, or only seemed to him defendant was true, the necessity of doing to be so, the defendant would have been enwhat he did for his own protection was ab- titled to have the jury charged that, even solutely beyond question, and it was with though they found against him on the actual this story that the trial judge was dealing necessity of the defense he had made, they in this part of his instruction to the jury, should still find for him if they believed that and not with a mere abstraction. He was such necessity, although nonexistent in fact, charging the law of the case."

had reasonably appeared to him to be real. That the present case is of this sort will No such circumstances, however, appearing appear from a brief recital of the cases made, in the testimony, no such charge was requirrespectively, by the state and by the defend- ed from the court. The charge as made cove ant. The state's case was that the defendant ered correctly the matters to be submitted to remained at the window of a barroom, look- the jury under the proofs. The charge, in so ing out through an opening in the curtains far as it was incorrect, touched a matter that until Pellechio passed along in front of the could not under the proofs have been subwindow, when the defendant exclaimed, mitted to the jury; hence an error therein "Here he comes," and started after him, did not injure the defendant, and should not "sneaking up” behind him until close enough lead to the reversal of the judgment entered to strike him in the back of the head with an against him in the court below. axe that he carried concealed in a paper cov- Finding in the charge of the trial judge no ering. Pellechio's skull was fractured by a error that requires reversal, the judgment blow from behind. The defendant's version brought up by this writ of error is affirmed. of the same affair was that Pellechio met him in the street, and instantly and without provocation assaulted him, and, with threats

(75 N. J. E. 270) against his life, seized him by the throat and GOODWIN V. MAYOR, ETC., OF CITY forced him to the ground, so that he dropped

OF MILLVILLE. the axe he was carrying, and that, as he was (Court of Errors and Appeals of New Jersey. about to pick up his axe, he saw Pellechio

Dec. 3, 1908.) with his hand on his revolver, "going for" MUNICIPAL CORPORATIONS (8 513*)—IMPROVEhim. His testimony was: “He was going to

MENTS-ASSESSMENTS-INJUNCTION. get me." "He was going to shoot me.”. “He of Chancery has no jurisdiction over assess

In the absence of special equities, the Court was so mad he was going to shoot me.” At ments made in the course of municipal improvethis precise juncture, according to the defend- ments, and will not interfere by injunction to ant's testimony, he recovered his axe, and restrain the collection of such assessments merestruck Pellechio with it. Two utterly ir-; because the complaining party, by his own

laches, lost his remedy at law. reconcilable versions were thus presented to

[Ed. Note.-For other cases. See Municipal the jury for its determination, according to Corporations, Cent. Dig. $$ 1196, 1198; Dec. one of which the defendant had made an un- Dig. § 513.*) provoked and murderous assault upon Pel- (Syllabus by the Court.) lechio, according to the other of which Pellechio had made an unprovoked and murder

Appeal from Court of Chancery. ous attack upon the defendant. Both could

Action by Eugene B. Goodwin against the not be true, and the verdict shows conclu- Mayor and Common Council of the City of sively which the jury accepted, and which Millville. Decree for complainant, and defendthey rejected, but neither version presented ant appeals. Reversed, and bill dismissed. any circumstances that was at once consist- Louis H. Miller, for appellant. French & ent with , the nonexistence of the necessity Richards, for respondent. testified to by the defendant, and yet afforded a reasonable basis for his belief therein. The TRENCHARD, J. The defendant, the existence and the imminence of the defend city of Millville, caused to be made by comant's danger having been left to the jury as missioners an assessment of benefits against one not only of fact, but also as one that the the owners of lands fronting on streets defendant may have had reasonable grounds where it had laid its system of sewers. On for believing, the succeeding statement, which June 1, 1906, the assessment was confirmed is the one now challenged, though abstractly by the city council. Among those thus aserroneous, was not in a legal sense injurious sessed were Thomas S. Simmons and Eugene to the defendant.

B. Goodwin, Simmons promptly prosecut. If, instead of the direct conflict between ed a writ of certiorari against the city, and the two versions of the affair, the state's con- the Supreme Court by its judgment of Notention had been that the defendant had mag-vember 19, 1907, set aside the assessment nified his danger, that Pellechio's revolver against the lands of the prosecutor brought up by the writ, and appointed commissioners, win had promptly made application to the to make a new assessment upon his property. Supreme Court for a writ of certiorari, it As will appear by the opinion filed in that would have been granted, and such relief accause (Simmons v. Mayor, etc., of City of corded him as was justified by the state of Millville (N. J. Sup.] 66 Atl. 895), the assess the case. This he neglected to do. He saw ment against Simmons was set aside because fit, with full knowledge of the errors and certain properties along the line of the sew- irregularities of the assessment, and of the er were not assessed for benefits, and since entire situation, to speculate as to the form substantially the whole cost of the work, so of relief which the Supreme Court would in far as the statute permitted its assessment, its discretion grant in the Simmons Case was assessed upon certain properties, includ- from the record then before it. In view of ing the prosecutor's, to the exclusion of oth- the fact that Goodwin delayed applying for a ers, the result was necessarily injurious to writ of certiorari for more than 18 months him. The court also found that under the after the confirmation of the assessment by statute other properties, not along the line city council, the Supreme Court was unof the sewer, but which were within the ter- doubtedly justified in denying him the writ ritorial zone of benefits, should have been on the ground of laches. Especially is this assessed, and that the assessment for that so in view of the legislative policy declar. reason, also, was not made in accordance ed by P. L. 1907, p. 109, in which it is prowith the statute. On December 9, 1907, the vided that no writ of certiorari shall therecomplainant, Goodwin, who owns property after be allowed to review any such assessalong the line of the same sewer and whose ment unless application therefor shall be property was assessed under the same as made within 60 days after such assessment sessment as that of Simmons, applied to shall have been confirmed by a court of comthe Supreme Court for a writ of certiorari

petent jurisdiction. to review the assessment against his proper

As was said in Am. Dock & Imp. Co. v. ty. The Supreme Court denied him the writ Trustees of Public Schools, 35 N. J. Eq. upon the ground of laches. On December 181, 258, one of the principles which enters 17, 1907, the complainant filed his bill to into the consideration of the matter presentprocure an injunction against the collection ed by this appeal is that courts interfere of any of the assessments until a proper re- with great reluctance with the collection of assessment is made. Upon the hearing on public revenues. Jersey City v. Lembeck, 31 bill and affidavits, the learned Vice Chan. N. J. Eq. 255, is an illustrative precedent. cellor awarded a preliminary injunction re- The city had laid an assessment on the comstraining the defendant, the city of Millville, plainant's lands, which, by the city charter, and its officers, from collecting or accepting was an incumbrance. The assessment was payments of any of the assessments, “until invalid. No suit was pending in which the an assessment shall be made upon the prop- validity of the incumbrance could be tested. erties liable to assessment, but omitted there. The complainant filed a bill under the stat. from and a reassessment made upon other ute against the city to settle the title to the properties to conform thereto according to land and determine the validity of the inlaw."

cumbrance. This court denied relief on the This appeal raises the question of the propriety of such injunction. The remedy relief by a writ of certiorari, which he had

ground that the complainant might have had for an irregularity or error in the imposition of taxes or assessments is by a writ of lost by his own laches. To justify resort to certiorari. To warrant the interference of a court of equity to stay the collection of

public revenues, the party must make a a court of equity, there must be some peculiar ground of equity jurisdiction. Jersey case strictly within the bounds of equity City v. Lembeck, 31 N. J. Eq. 255; Hoboken jurisdiction-an injury otherwise not reme. Land & Improvement Co. v. Hoboken, 31 diable—and he must seek and prosecute his

In the present N. J. Eq. 461, 463. In the present case the remedy with promptitude. Vice Chancellor was of the opinion that the case, as we have seen, the complainant had complainant as a taxpayer, irrespective of his remedy at law which he lost by his own

laches. the assessment against his property, was en

He cannot, therefore, resort to a titled to restrain the city from enforcing its court of equity on that ground. illegal assessments, the enforcement of

Nor can the interference of the court of which would operate to burden the city with equity be justified upon the ground of the a charge that the statute requires individual prevention of a multiplicity of suits, as was properties to bear. This equitable relief suggested at the argument. The bill appears seems to proceed upon the theory that the to have been filed by the complainant in complainant's remedy was not at law. To his own behalf only, and there is no indicathis we do not agree. In Jersey City v. Lem- tion that any other person is threatening beck, 31 N. J. Eq. 255, it was pointed out suit. Moreover, any other taxpayer or landthat the jurisdiction of the Supreme Court owner atfected is presumably in the same to review and correct the errors or irregu- position as the complainant with respect to larities of such assessments is exclusive. It laches, and for that reason would not be en

The decree under review should be revers-17. WILLS (8 161*) – UNDUE INFLUENCE — INed, and the complainant's bill dismissed, with


Where it is impossible to determine to what extent specific legacies have been tainted

by undue influence, the whole will, if at all, 175 N. J. E. 177)

must be set aside on the ground of undue in

fluence. In re COOPER'S WILL,

[10d. Note. For other cases, see Wills, Cent. (Prerogative Court of New Jersey. Jan. 2, Dig. § 374; Dec. Dig. & 161.*] 1909.)


FLUENCE CONFIDENTIAL RELATIONS - AT- The fact that testatrix was in possession TORNEY AND CLIENT-PRESUMPTIONS-Bus- of her will and codicil for a year and a half DEN OF PROOF.

with opportunity during that time to cancel the An attorney, who had been the legal ad- same, is a strong indication that she was aware viser of testatrix for some years, prepared her of their contents. will and codicil, whereby he was appointed ex- [Ed. Note. For other cases, see Wills, Cent. ecutor and received a specific legacy, and a large Dig. § 702; Dec. Dig. $ 302.* ] share of the estate as residuary legatee. His son also was given a specific legacy by the will. 9. WILLS ($ 289*) - EXECUTION-KNOWLEDGE The attorney also procured the witnesses to the

OF TESTATRIX-EVIDENCE. will and codicil, and both were executed under

Where a testatrix, after the execution of a his personal supervision. Held, that there was will, drawn according to instructions given one à presumption of undue influence on his part, who conveyed them to the draftsman, has the and the burden of proof that the will was the executed will in her possession a sufficient free act of testatrix was on him.

length of time, and opportunity and ability to [Ed. Note.-For other cases, see Wills, Cent. acquaint herself with its contents, and she pre

serves it, it will be conclusively presumed that Dig. $8 338 403; Dec. Dig. § 103.*]

the will was prepared according to her instruc 2. GIFTS ($ 47*) — INTER Vivos — UNDUE IN- tions, especially when it followed her pronouncFLUENCE-PRÉSUMPTIONS.

ed intentions, and provided for no unnatural In transactions inter vivos, the presumption disposition of her estate. of undue influence is raised solely because of

[Ed. Note.-For other cases, see Wills, Cent. the dependent confidential relation existing be- Dig. $ 653; Dec. Dig. $ 259.*] tween donor and donee; and the donee, to establish the gift, must show that independent ad-10. Wills (8 302*)-EXECUTION-KNOWLEDGE vice was relied on by the donor.

OF TESTATRIX-EVIDENCE. [Ed. Note.--For other cases, see Gifts, Cent. which in express terms confirms the will, but

The fact that testatrix executed a codicil, Dig. $ 86; Dec. Dig. 47.*]

which makes changes therein, tends to prove 3. WILLS (8 163*) — EXECUTION - UNDUE IN- that testatrix was acquainted with the will. FLUENCE-CONFIDENTIAL RELATIONS-BUB

[Ed. Note.-For other cases, see Wills, Dec. DEN OF PROOF.

Dig. $ 302.*] Where, in a testamentary transaction, the facts show the existence of confidential 'rela- 11. WILLS ( 297*) — EXECUTION DECLARA tion between testatrix and a beneficiary, slight TIONS OF TESTATRIX-EVIDENCE. circumstances in addition to such relation will Declarations of testatrix that she had made throw on the beneficiary the burden of showing a will and remembered certain persons, and that testatrix's mind was not unduly influenced that she had thought a good deal about making

[Ed. Note. For other cases, see Wills, Cent. the will, and that some people would not be Dig. $ 390; Dec. Dig. § 103.*]

satisfied, were admissible to show that she was

aware of the contents of the will, contested on 4. WILLS (8 54*) — PROBATE-CONTESTS/-Evi- the ground of undue influence. UNDUE INFLUENCE LETTERS OF

[Ed. Note.-For other cases, see Wills, Cent. TESTATRIX.

In proceedings to probate a will and cod- Dig. § 690 ; Dec. Dig. & 297.*] icil, contested on the ground of undue influence, 12. WILLS ($ 166*) - EXECUTION-UNDUE INletters written by testatrix after the making of FLUENCE. the will, and before and after the making of Where the evidence showed that testatrix the codicil, a re admissible as bearing on the had fixed testamentary ideas as to the disposimental condition of testatrix, but are not com- tion of her estate, and gave instructions to the petent evidence of the facts stated in the letters. attorney who drew the will, and that he follow.

[Ed. Note.-For other cases, see Wills, Cent. ed the instructions, there was evidence that Dig. $8 131-134; Dec. Dig. 34.*]

she exercised independent judgment essential to

sustain the will containing a gift to the attor5. WILLS (8 160*)--PROBATE_CONTESTS-UNDUE INFLUENCE-EVIDENCE-SUFFICIENCY.

[Ed. 'Note.-For other cases, see Wills, Cent. In proceedings to probate a will, contested on the ground of undue influence, evidence of Dig. $$ 421-437; Dec. Dig. 8 166.*] the physical and mental condition of testatrix, 13. WILLS (8 157*)–EXECUTION-UNDUE INof the reasonableness of the gifts made by the FLUENCE. will as compared with a prior will, of her knowl- The rule requiring a person disposing of edge and appreciation of the testamentary dis- his property by will to exercise a judgment in. position made. held to show absence of undue dependent of the confidence induced by his coninfluence by the principal beneficiary occupy- tidential relationship with his legal adviser only ing the confidential relation of attorney.

requires that testator exercise his independent [Ed. Note.--For other cases, see Wills, Cent. judgment, and does not require proof of proper Dig. $$ 421-437; Dec. Dig. § 166.*]

independent advice. 6. Wills (8 161*) — UNDUE INFLUENCE — IN

(Ed. Note.-For other cases, see Wills, Dec. VALIDITY IN PART.

Dig. 8 157.*] In a proper case, part of a will may be set 14. Wills (166*)—UNDUE INFLUENCE-Eviaside because of undue influence.

TEd. Note.-For other cases, see Wills, Cent. The testimony of a legatee, charged with Dig. 8 374; Dec. Dig. $ 161.*]

having obtained the will by undue influence,






cannot be arbitrarily disregarded, where such , about 80 years of age in 1900. Axtell had testimony is not contradicted by other credible been her sole legal adviser since January, testimony or discredited by its improbability,

[Ed. Note.-For other cases, see Wills, Dec. 1898, and had acted for her in some matters Dig. § 166.*]

before that time, beginning at least as early

as 1888. He had known her well for many 15. WILLS (8 157*)-EXECUTION-UNDUE IN

years, and intimately since 1883. · She apEvery person competent to make a will has pears to have had great confidence in his a right to the aid of any person he may think judgment and integrity. He claims that, actproper to select, when he desires to put his testamentary wishes in legal form; and, if he ing under instructions from her, he prepared exercises this right without improper influence, the rough draft of the will executed in 1900, though he selects the person he intends to make and that of the codicil executed in 1904. his beneficiary, that fact, in the absence of evi- Each draft was copied by hand, and prepared dence showing an abuse of confidence, is no reason why probate should be denied' to the for execution by a young man named Grifwill.

fith, who was employed by Axtell in a clerical (Ed. Note.-For other cases, see Wills, Cent. capacity in 1900, and specially employed for Dig. § 428; Dec. Dig. 157.*]

the express purpose of copying the draft of 16. WILLS (8 157*)-EXECUTION-UNDUE IN- the codicil in 1904. Under the will of 1900

Axtell receives a specific legacy of $500, and The contention that an attorney who sustained toward one the confidential orelation of is the sole beneficiary under the clause dislegal adviser should refuse to accept his tes- posing of the entire residue of the estate of tamentary bounty is one of professional ethics, testatrix, receiving thereunder a large part and is not involved in proceedings to probate of the whole estate, nearly two-thirds therethe will, making such attorney the principal of. His son Roland P. receives a legacy of . beneficiary and executor.

[Ed. Yote.--For other cases, see Wills, Dec. $250. In addition Axtell is the sole executor Dig. § 157.*]

named in the will, Joseph H. Van Doren havAppeal from Orphans' Court, Morris ing been added as an executor under the

codicil of 1904. Axtell also procured the witCounty.

In the matter of the probate of the will of nesses to both the will and codicil, and each Esther J. Cooper, deceased, in which Carrie document was executed under his personal

advice and supervision. Under this state L. G. Harrison and others appeared as contestants. From a decree of the orphans' ment of facts it is clear that the legal pre court admitting the will of the deceased to sumption of undue influence has been raised,

and that the burden of proving that the will probate, the contestants appeal. Affirmed.

is the spontaneous act of the decedent was The following is the opinion of Mills, J., thrown upon Axtell, her attorney and confiin the orphans' court:

dential adviser. In so holding I do not con"This is a proceeding brought to test the tend that the presumption of undue influence validity of certain paper writings purporting has been raised solely because of the confito be the last will and testament of Esther dential relation existing between Mrs. CoopJ. Cooper. The will is dated May 26, 1900. er and her legal adviser. I fully realize The codicil accompanying the same is dated that the strict rules that control in the case March 29, 1904. A copy of each has been an. of transactions inter vivos are not applied to nexed to these conclusions. Testatrix was 86 those of a testamentary character. years of age at the time of her death, which “In transactions inter vivos the law is so occurred on October 29, 1906. She was the jealous of the rights of the donor that the widow of James J. Cooper, who died about 30 presumption of undue influence is at once years ago. The validity of the will has been raised solely because of the dependent conchallenged by Carrie L. G. Harrison, the fidential relation, and, when once raised, is caveator, who is a grand niece of testatrix. very difficult to overcome because of the rule Ten other persons, grand nieces and grand never applicable in testamentary cases) re nephews, have joined with her in protesting quiring that independent advice must be against the probate of the will. The attack shown. For example, had Mrs. Cooper made is made on the ground that the will with its Axtell her beneficiary by voluntary irrevocacodicil is the product of undue influence, er- ble deed of conveyance, instead of by will, erted upon the testatrix by Charles F. Axtell, the presumption of undue influence would an attorney and counselor at law of this have been at once raised solely because of state. Both the will and codicil appear to the confidential relation existing between have been properly executed. The attesta-them, and the burden would at once have tion clauses are in proper form, and all the been placed upon Axtell of overcoming that formalities were duly observed at the time presumption by showing that she had the each paper was executed. It is not contend- benefit of 'proper independent advice.' See ed that the testatrix was mentally incapable Post v. Hagan (N. J.) 65 Atl. 1026 (March 4, of making a will, but that, owing to her ad. 1907); Slack v. Rees, 66 N. J. Eq. 447, 59 vanced age, her mind was unable to resist Atl. 466, 69 L. R. A. 393. In a testamentary the improper influences exerted by her friend transaction, however, like the one now be and attorney, Charles F. Axtell. She was fore me the facts showing the confidential

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