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relationship must be accompanied by other Counsel for the contestants strongly opposed circumstances in order to raise the presump- the introduction of this kind of evidence. tion of undue influence. In Spark's Case, 63 Its competency cannot be questioned. In N. J. Eq. 242, 51 Atl. 118, it was held by Marx v. McGlynn, 88 N. Y. 374, Earl, J., held the Prerogative Court that: “The confidential that diaries kept and letters written by a relation existing between a testator and his testator, either before or after the execution spiritual, as well as secular, adviser, who of the will, while proper evidence, as bearwas made residuary legatee, is not alone suf-ing upon the mental capacity and the condificient to raise a presumption of undue influ- tion of mind of the testator, with reference ence. The rule which raises such a pre to the object of his bounty, are not compesumption in transactions inter vivos does not tent evidence of the facts stated in them, or apply to testamentary gifts. Slight circum- to prove fraud or undue influence. The stances, in addition to such relation, will court said: “They are in the nature of hearthrow upon the beneficiary the burden show- say evidence, declarations of the deceased, ing that the testator's mind was not unduly which are incompetent for the purpose of influenced.' See, also, Wheeler y. Whipple, defeating or destroying the will or any of its 44 N. J. Eq. 141, 145, 14 Atl. 275. The 'slight provisions. They are competent only as circumstances in addition,' called for under bearing upon the condition of the mind of the Spark's Case, are sufficiently shown in the testator at the time of the execution of Axtell's action in attending to the prepara- the will. Such memoranda or declarations, tion of the will and codicil, in drafting the whether made before or after the execution residuary clause of the will in his own favor of the will, are competent as bearing upon and in selecting the witnesses. In Farnum the testator's mental capacity. They are v. Boyd, 56 N. J. Eq. 766, 41 Atl. 422, it was also competent as bearing upon the condi. held that: 'A lawyer, employed by a testa- tion of the testator's mind with reference to trix with unsettled testamentary notions as the objects of his bounty. They may be to the disposition of her entire estate, to given in evidence for the purpose of showing draw her will, can participate in her bounty, his relations to the people around him, and in a material degree, only after a very clear to the persons named in the will as benefiexhibition that his conduct was fair and un- ciaries. They are, however, entitled to no objectionable, and that the testatrix exercis- weight, in proving external acts, either of ed, with relation to her bounty to him, a fraud or undue influence.' This interpretajudgment independent of the confidence in- tion of the law is viewed with approval in duced by his confidential relationship to her.' Hobson v. Moorman, 115 Tenn. 73, 90 S. W. There is no question but that, under the law 152, 3 L. R. A. (N. S.) 749, and Tenn. Supt. as applied to the facts in this case, Axtell Ct. Dec. 1905, a case in which the question must overcome the presumption of undue in of the effect of the statements and declara. fluence before he can benefit by the will of tions made by a testatoris exhaustively testatrix.

treated. This construction is also in line “The circumstances surrounding the execu- with the decisions of this state. See Rusling tion of her will and codicil have made neces- v. Rusling, 36 N. J. Eq. 603, 607, 608; Pem. sary the rigid and exhaustive investigation berton's Case, 40 N. J. Eq. 520, 4 Atl. 770. which has been made in this case. To re- "Before reaching my conclusion in this lieve himself of the burden of showing that case I carefully considered: (1) The charthe will in question, with its accompanying acter and quality of the mind of testatrix, codicil, resulted from the free and uncon- her physical condition and habits of life; strained action of the testatrix, without any (2) the nature of her will, with special remoral or physical coercion on his part, Ax-gard, as to whether it is reasonable and tell has placed a large number of witnesses natural in its treatment of the natural obon the stand, and has introduced consider-jects of her bounty and other relatives and able documentary evidence. It is for this friends and her mental attitude toward court to determine whether he has sustained them; (3) the amount of her property and the burden which has been thrust upon him. her realization of its value; (4) her knowlIn my opinion he has done so. The reasons edge and appreciation of the testamentary for my conclusions I will give at length; but, disposition she had made of her estate; (5) before discussing them, I will briefly con- the question whether, in view of all the evisider the law controlling the admission in dence, her principal beneficiary has succeed. evidence of statements and declarations ed in sustaining the burden placed upon him made by the decedent. Great light has been by his indiscreet conduct. thrown upon the mental attitude of testa- "1. Mrs. Cooper, considering her advanced trix toward her surroundings by the wit- age at the time she made her will and the nesses, who have testified to many declara- subsequent codicil, was a woman of unusutions made by her with regard to her rela- al mental and physical vigor. She kept an tives and friends. A large number of let- active supervision over her affairs, had an ters written by her have also been introduc- intimate knowledge of her investments, and ed in evidence. They were almost all writ- saw that her interest was promptly collected. ten after the making of the will, and both she was of a genial and kindly disposition, to her by others. She generally had a rela- | before the court, exactly the same amount of tive staying with her, but kept control of money as he or she would have received if her domestic establishment. There is not the will of 1888 had now been admitted to the slightest suspicion that she was mental- probate, with the single exception of Henry ly weak or unsound. Dr. A. A. Lewis, who | H. Pruden, the half-brother of testatrix. Of had been her family physician for at least the 11 beneficiaries under the will of 1888 he 20 years, testifies to her good mental condi- is the only one to suffer from the new will. tion during the time he had known her. He Had the will of 1888 been probated at this says her mind remained clear 'up to the last time Henry H. Pruden would not only have 48 hours' of her life. He also shows that been the executor, but he would, owing to she liked conversation and company. In the marriage of Myra, have received more speaking of his business relations with her than Charles F. Axtell can now receive unhe says 'she was always very precise with der the will and codicil in question because me. From all the evidence it is clear that of the legacies now given to Edwin Pruden she was a self-reliant woman, with consider- and Esther L. Marks. Under the will and able shrewdness and decision of character. codicil now offered for probate Henry H. She enjoyed traveling. During the winter of Pruden receives the vacant lot of 25 acres 1901 and 1902 she spent several months at situated near Morristown, which is nonpro West Palm Beach, Fla. Several times after ductive and of uncertain value and which I the execution of the will of 1900 she visited should judge from the evidence is worth cerher so-called adopted daughter Mrs. Marks tainly under $5,000. It is well to note in at her home in New York state. She showed this connection, however, that, had Myra nevin many ways that life was very pleasant er married, Henry H. Pruden would not, notwithstanding the burden of years. aside from the executorship, have received

“2. I will now review the evidence to de any benefit under the will of 1888 until Mytermine whether the will and codicil in ques- ra's death, showing that in 1888 Mrs. Cooper tion are unnatural or unjust, and in that con- did not think it necessary to make special nection will first compare the treatment provision for her half-brother, and was not which the several beneficiaries received un- particularly solicitous about his welfare. der the canceled will (which is said to have "A comparison of the wills of 1888 and been executed by her on December 19, 1888, 1900, taken in connection with the testimony and which has been offered in evidence) with of the several witnesses, and all the other that bestowed upon them by the will of evidence, shows pretty conclusively that Mrs. May 26, 1900, and its codicil.

Marks, Mrs. Lydia Wolfe, Clarence Pruden, “(1) Mrs. Marks. By the earlier will Mrs. Henry H. Pruden, and his six children were Marks (then unmarried and styled 'my adopt the persons of whom testatrix was especially ed daughter Myra Kenward Cooper') re- fond. They were the persons with whom she ceived $1,000 in cash, and the household was thrown in contact, and with whom she goods and furniture absolutely. She was al- was in constant intercourse. Mrs. Marks, to so given the use of the homestead for life, be sure, was not a relative nor even a legalor 'until she marries, together with the use ly adopted daughter. She is, however, called of the residuary estate for life 'or until she her adopted daughter in both wills and in marries. Under the new will and codicil the codicil. She lived with Mrs. Cooper from Mrs. Marks receives $1,000 in cash, but not the age of 5 years until she was married at the furniture and household goods. Mrs. the age of 21, and was apparently nearer and Marks' daughter, born since 1888, receives dearer to her than any one else. Without $500 under the codicil. Aside from the loss any child of her own the affections of testa. of the furniture and household goods, Mrs. trix were centered upon Mrs. Marks, and Marks receives the same amounts as she those of her relatives who lived near her, would have received under the will of 1888 and who had in many ways become endearhad it now been admitted to probate, while ed to her. These nine relatives (Lydia her daughter also now receives the sum of Wolfe, Clarence Pruden, Henry H. Pruden, $500. Myra married Rufus B. Marks in 1889. and his children), together with Mrs. Marks

"(2) Mrs. Lydia Wolfe. Under the earlier and the wife of Henry H. Pruden, were the will she was left $1,000. Under the later only persons remembered in the will of 1888, will and codicil she will receive exactly the and are also the only persons mentioned in same amount, $1,000.

the will of 1900 and the codicil, excepting "(3) Mrs. Carrie Pruden, wife of Henry Stephen H. Pruden, Edwin Pruden, and the H. Pruden. The bequest to her remains daughter of Mrs. Marks and the Axtells. I identical with that in the earlier will.

have attached to these conclusions a memo "(4) The six children of Henry H. Pruden randum, showing the several persons named receive under the will of 1900 the same iden- as relatives of Mrs. Cooper in the petition tical amounts left them under the will of for probate. It appears that the great ma1888.

jority of these relatives did not live in Mor"(5) Clarence C. Pruden now receives the ristown. The testimony shows that testasame amount left him under the will of 1888. trix had seen some of them at rare inter

"In brief every beneficiary under the will of vals, and that many of them she had never told Lydia Pruden that 'she had not remem- , the English and American courts. See A. bered the Guering in her will'; that they & E. Ency. of L. (2d Ed.) vol. 29, p. 108. So were amply provided for without any of her far as I am aware, the question has never money.' I am convinced that the persons of been passed upon in this state. See, howwhom she was especially fond, and who ever, the comment made in Harris V. Vanmight properly be called the natural objects derveer's Ex'r, 21 N. J. Eq. 561, at page of her bounty, were Mrs. Marks and the nine 575. If Mrs. Cooper's will had been tainted relatives whom I have enumerated, namely, by fraud or undue influence, all of it would Mrs. Wolfe, Clarence Pruden, Henry H. Pru- have to be set aside. To my mind a division den, and his six children, Lydia, Minnie, Da- of the estate of testatrix under the statutes vid, Harry L., Emma, and Gertrude. Curi- of descent and distribution would be more ously enough not a single one of these per- unnatural and inequitable than if made pursons is objecting to the probate of the will suant to the will and codicil in question. and codicil now in question. How would “The removal from the operation of the these persons in whom Mrs. Cooper was es bounty of testatrix of those in whom she pecially interested be benefited if the will is was particularly interested, on the ground set aside? If testatrix can be held to have that her provisions for them had not been died intestate, Mrs. Marks and her daughter sufficiently ample, would, in effect, give the would receive nothing. Henry H. Pruden bulk of her property to relatives for whom being of the half-blood would have no inter- she did not care, in whom she took no inest in any of the real estate, and his share terest, and many of whom she had never of the personal estate would probably prove seen, and would work great injustice. It is to be no more valuable, if as valuable, as the true that by so doing we would defeat her real estate devised to bim in the will now provisions for Axtell and his son. But is presented for probate. The six children of there anything unnatural in those provi. Henry H. Pruden, who receive $2,600 in all, sions? Mrs. Cooper was a very warm friend under will of 1900, would receive absolutely of Axtell and his wife. She had become acnothing, as their father is still living. Mrs. quainted with Mrs. Axtell in 1883, and had Wolfe might receive a trifle more, for, wbile known her husband much longer. In more she would receive less cash, she would have than 25 of the numerous letters from Mrs. a small interest in the real estate, which Cooper to Axtell she refers in affectionate might a little more than offset the loss in terms to Mrs. Axtell. In some of these let. cash. Clarence Pruden would unquestionab- ters she expresses her appreciation of littie ly be benefited if the will should be broken, acts of kindness extended to her by Mrs. but he is the only one of those who may be | Axtell. It appears from the evidence of Dr. considered the natural objects of the bounty Lewis that Mrs. Cooper was very fond of of testatrix, who would be substantially ben- Mrs. Axtell, and displayed great sympathy efited.

at the time Mrs. Axtell was threatened with “With regard to the suggestion of counsel blindness. Minnie Pruden testifies that tes. that this court has power to set aside that tatrix would frequently go and see Mrs. Ar part of the will under which the Axtells ben- tell. The letters also show the high esteem efit, and should exercise that power, I will in which Mr. Axtell was held. In one of state that, aside from the fact that I do not them she addresses him as ‘my very dearest believe that any fraud or undue influence was friend.' They also show that her lonely life exercised as to any part of the will or codi- was brightened through her association with cil, I feel certain that, in no view of this the Axtell family. Considering the relations case would it be proper to permit the partial of Mrs. Cooper with the Axtells, the provi. Intestacy that would result from such action. sion for the head of that family can hardIt would be impossible to determine to what | ly be called unnatural, however we may extent the specific legacies, aná in particular question the wisdom of its bountiful charthe devise to Henry H. Pruden, had been acter. It is not unnatural that she should tainted and improperly reduced. In Cuth- have wished to substantially remember a bertson's Appeal, 97 Pa. 163, 173, Chief Jus- dear friend with whom, apparently, her busitice Sharswood, speaking for the Supreme ness relations had always been satisfactory, Court of Pennsylvania, says: "There may and to whose wife and family she had bebe a case where the alleged undue influence come greatly attached by pleasant social inis applicable only to a single independent tercourse extending over many years. The provision in a will, and that provision may only reason that this court has considered fail, leaving the rest of the will to stand. It at length the question as to whether the will is certainly not this case, where the clause is natural or unnatural is for the purpose objected to is a residue, and that residue of ascertaining whether its provisions sprang made up, or largely increased, by alterations from the natural impulse of the testatrix made, as a jury may conclude, under the or resulted from coercion. Except from that same influence for that purpose.' I do not standpoint, this court is not concerned in its moubt but that, in a proper case, part of a reasonableness or justice, as any one har. will can be set aside because of undue in- ing mental capacity, and acting freely on his right to make an unjust will. The possibility | mortgage liability, and retained the tract to of establishing the will of 1888 on the ground the north of the Baskingridge road (devised that it was canceled through fraud or un- to Henry H. Pruden) free and clear of all due influence will not be considered by me, mortgage incumbrance. Axtell states that because I feel certain it was not so can- at one time testatrix told him she was sarceled, and further because the question as ing from $800 to $1,000 a year, but it does to its cancellation is one in which the par- not appear over what period she believed she ties to this proceeding are not interested. was saving in that manner. She apparently Not one of the 11 contestants, and neither thought that she had increased her estate of the 2 proponents, would be in any way through her habits of economy and thrift. benefited by its probate.

I am unable to determine from the evidence "3. Mrs. Cooper was possessed of a suff- just what Mrs. Cooper was worth in 1900, cient income and estate to support her in or prior to that time. Her written and oral comfort. She was a woman of simple tastes, statements in that regard are only competent very economical in her mode of life, and as they tend to show us her point of view. very thrifty. She had the life use of the in- In that respect they are extremely valuable, come from the estate of her husband, wlio but cannot, as above shown, be received died in about the year 1877. The evidence as substantive evidence of the facts stated. shows that estate to have been worth in the Enough has been developed in this case to neighborhood of $29,000. After the death show that testatrix was a shrewd, capable of J. C. Youngblood in 1897, some partial set-manager, and, though very careful of her tlement and distribution of the James J. expenditures, was exact and just in her dealCooper estate was made, so that its amount ings with others. If she believed that her eswas reduced to about $18,000. It does not tate was increased through her own care and appear what amount of cash Mrs. Cooper re-economical management, she may for that ceived through the settlement and distribu- reason 'have felt that the increase was pe tion. Mrs. Cooper at the time of her death culiarly her own, and that no one of her had personal property, consisting principally relatives could complain if she acted in acof bonds and mortgages, which has since cordance with her own wishes and judgment, been inventoried at $21,692.39. This amount and made Axtell a large beneficiary under included the value of her furniture and her will. She may also have looked upon household goods, appraised at $486.23. The that increase as a fund upon which she could inventoried value of her personal estate will make heavy drafts, in case she was obliged be considerably decreased by the expenses to live the life of an invalid for any conof administration and other charges. No evi- siderable period before her death. There dence has been presented to me in this pro- is no doubt in my mind but that she was ceeding showing what the indebtedness and fully acquainted with the character of her other charges against her estate would property and realized its value. amount to. She owned a house and lot on "4. I will next consider whether Mrs. Coop High street, Morristown, worth $5,500 or er fully understood the nature of hér will. $6,000, and a vacant piece of land, consist- The contention that she did not realize the ing of about 25 acres, on the north side of effect of the residuary clause, and that she the Baskingridge road near Morristown. really believed that her brother Henry was What this 25-acre piece is worth does not the principal recipient of her bounty, strikes appear. Testatrix valued it at $5,000, but me as being absolutely without force. It is that valuation, in view of other evidence, is claimed that the specific legacy of $500 to probably somewhat excessive. Testatrix kept Axtell tends to prove that Mrs. Cooper did close track of her investments. In her let- not appreciate the value of her estate, and ter to Rufus B. Marks, dated May 28, 1900, thought the residue, after the payment of she inclosed a statement showing that she the specific legacies, would be small. As a then thought she was worth $13,800 aside matter of fact, two days after the execution from her real estate. Astell testifies that of the will, in her letter to Mr. Marks, above two or three years ago testatrix gave a thou- referred to, she inclosed a list of her se sand dollar bond to her niece Lydia Pruden. curities, showing that she believed that she This would seem to have been a proper rec- had a considerable estate. That letter cerognition of the devoted service rendered to tainly shows a secretive mind, and it may her by a favorite niece, who resided with her be that she did not object to having Marks a good many years, and whose fixed com- believe that his wife would receive some conpensation was extremely meager.

siderable portion of her estate. While the "What appears to have been an advantage letter shows a lack of frankness, it does not ous conversion of some of her real estate show that she was ignorant of what she had into personalty was made in 1902, when she done with her estate. I feel certain that she sold her land on the South side of the Bask- knew the contents of her will and codicil and Ingridge road to her nephew Harry Pruden the effect of their provisions. Axtell says for $5,000, subject to a mortgage of $3,360. the will was read over to her in her presence In this way she apparently obtained $1,640 at the time of its execution. Witte, one of said she had read over the will and knew, will, and she thought some people would not what was in it.' So far as the codicil con- be satisfied'-also indicates that she was cerned Axtell says that at the time of its aware of its contents.

He further says that he delivered the will to tained the burden placed upon him by his her on the day of its execution, and did not indiscreet conduct in the matter of drawing see it again until he drew the codicil, and and attending to the execution of the will that after the codicil was drawn, Mrs. Coop- and codicil presented for probate has been er retained both will and codicil.

answered by the evidence. He placed him. "Even if the will was in the safe deposit self in a very indelicate and highly impropbox for one year, as is claimed, and I have er position, which made it necessary for him no doubt but that such was the fact, she had to produce voluminous testimony before this equal control over it with Axtell. Axtell's court. I am satisfied by the documentary statement that both will and codicil were left and oral proofs (without regard to Axtell's with Mrs. Cooper at the time the codicil was testimony and his emphatic statements that executed is corroborated by other evidence. he in no way influenced testatrix) that at the It appears that both will and codicil were time the will was drawn, as well as at the in her possession about a year and a half be time the codicil was drawn, Mrs. Cooper had fore her death, as she then handed to Mrs. fixed testamentary ideas as to the disposition J. H. Van Doren an envelope containing both of her estate. She knew what she wanted, documents, and Mrs. Van Doren, pursuant gave her instructions to Axtell, and he folto instructions from testatrix, immediately lowed them. In this respect this case is handed it to her husband, the executor ap- different from Farnum v. Boyd, above cited, pointed under the codicil to serve with Ar where the testatrix bad 'unsettled testamentell. For the 142 years that the will and tary notions.' The 'independent judgment codicil were in the custody of Mr. Van Doren required under Farnum against Boyd has they were of course under the control of tes- also been exercised by testatrix in this case. tatrix, and could have been canceled and re- All the evidence points to that conclusion, placed at any time without the knowledge or "In particular it is indicated, by the state consent of Axtell. The possession of the willments and actions of testatrix in regard to and codicil by testatrix, taken in connection the custody of her will and her statement to with opportunity to cancel them which she Minnie Pruden, above quoted, that she had had over a long period of time, is strong given much thought to its making. The rule indication that she was aware of their con- requiring that a person disposing of bis tents. It has been recently held in the Pre- property by will must exercise a judgment rogative Court of this state that: 'Where a independent of the confidence induced by his testatris, after the execution of a will, drawn confidential relationship with his legal adaccording to instructions given one who con- viser must not be confused with the rule reveyed them to the draftsman, has the execut- quiring 'proper independent advice,' which ed will in her possession a sufficient length is applicable in the case of a person who of time, and with the opportunity and ability makes a voluntary deed, to take effect in his to acquaint herself with its contents, and she own lifetime, to one upon whom he is dethen preserves it, it will be conclusively pre-pendent for advice. The law guards with sumed that the will was prepared according peculiar care a person of advanced years to her instructions, especially when it follow- who, like King Lear, voluntarily deprives ed her pronounced intentions, and provides himself of his means of support in his old for no unnatural disposition of her estate.' age, but is not so strict in the case of a In re Catharine McLaughlin's Will, 69 N. J. person giving away his property by an inEq. 479, 59 Atl. 892. See, also, Brick v. strument taking effect at his death, when he Brick, 44 N. J. Eq. 282, 18 Atl. 58, where it no longer has any use for it himself. In the was held that, if a will is shown to have former case it must be shown that the been in a testatrix's possession long enough donor had 'proper independent advice.' In for her to read it, the proponent need not the latter case it need only be shown that prove that any one saw her read it, or heard the testator exercised his 'independent judg. it read to her, or in her presence, because, ment.' Mrs. Cooper has been shown to have if she had the intelligence and capacity to displayed independent judgment, and to have read it herself, the law will presume, if the been free from that improper and undue inopportunity was afforded her, that she was fluence which has been defined to consist in acquainted with its contents.' The existence the exercise of sufficient control over the of the codicil, drawn in 1904, which in ex- person, the validity of whose act is brought press terms confirms the will, tends to prove in question to destroy his free agency and that testatrix was well acquainted with the constrain him to do what he would not have provisions of the will, as she would not have done if such control had not been exercised.' been likely to have made changes in it with Bennett v. Bennett, 50 N. J. Eq. 439, 26 Atl. out familiarizing herself with its contents. 573. ' Axtell has supplemented the other eviHer statement to Minnie Pruden that she dence by repeatedly and emphatically deny. had made a will and remembered us. She ing ever having directly or indirectly influ

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