Brick v. Brick

• Decision Date: 25 October 1887
• Citation: 10 A. 869,43 N.J.E. 167
• Parties: BRICK v. BRICK.
• Court: New Jersey Supreme Court

10 A. 869

43 N.J.E. 167

BRICK

v. BRICK.

Prerogative Court of New Jersey.

October 25, 1887.

Appeal from orphans' court, Burlington county; Lee, Black, and Glasgow, Judges.

M. R. Sooy, for appellant. Joseph H. Gaskill, for respondent.

MCGILL, Ordinary. This is an appeal from an order and decree of the orphans' court of Burlington county, dated January 3, 1887, admitting to probate a paper purporting to be the last will and testament of Rebecca Brick. At her death, on the tenth day of August, 1885, Mrs. Brick was in the seventy-seventh year of her age. The paper in question was executed by her on the sixth day of January, 1883. She suffered from dropsy for 18 months prior to her death, and during that time was unable to leave her house, and for a greater part of it was confined to her room. She was a woman of fair business capacity, and of sound mind, memory, and understanding, at the time the paper was executed. Her husband died in 1868, leaving her with six children, five sons and one daughter, all of whom are now of full age. Of these sons, Joseph, the respondent in this appeal, became her adviser and agent in all her ordinary business affairs. He appears to have devoted himself for many years to the service of his mother, and consequently to have gained her gratitude and full confidence. In the paper offered for probate, Joseph is made the executor; specific legacies of household furniture are bequeathed to the several children; the homestead, a small farm of about 37 acres, with the farming implements thereon, is devised to Joseph, and he is directed to pay into the residue of the estate $6,000 for this property and the farming implements; and the residue of the estate is divided in equal shares among all Mrs. Brick's children. The share of John I. Brick, the eldest son, is directed to be paid to a trustee, and to be held in trust so that the income shall be paid to John, during his life, and the principal to his children after his death.

The appellant, "William F. Brick, a son, resists the admission of this paper to probate as his mother's will, on the ground that the execution of it as a will was procured by the respondent by fraud or undue influence. He urges in support of his position the following facts, which are established by the proofs: That the will was drawn by Charles E. Merritt, a member of the bar of this state, resident at Mount Holly; that Merritt was consulted in reference to the will by the respondent only; that he requested instructions in writing, and that they were furnished to him by the respondent; that when the draft of the will was made it was either mailed or delivered to the respondent; that the respondent paid Mr. Merritt for drawing the paper; that the witnesses to the execution of the document by Mrs. Brick were called by the respondent; that the respondent was present at and superintended the execution of the paper; that he requested both the witnesses to maintain secrecy as to its existence; that he took possession of the paper after its execution, and retained it in his private safe until after his mother's death; that he kept secret the fact of the existence of a will through the mother's sickness, and until after her funeral, notwithstanding he was at times put in a position in which it would have been natural and proper for him to have spoken of it; also, that Mrs. Brick had more than once said that she did not think it would be wise for her to make a will, that the law would make a proper disposition of her property; also, that she said that although her eldest son, John, had spent all that he had received from his father's estate in a prodigal manner, and was apt to do the same with that which she would leave him, she did not wish to "entail" his share of her estate, for fear he would speak harshly of her after she was dead; and also that shortly before her death, seemingly ignorant of the fact that ...