18 A. 525 (N.J.Eq. 1889), In re Propounding for Probate A Paper Writing Purporting To Be Last Will & Testament of Lee

Citation:18 A. 525, 46 N.J.Eq. 193
Opinion Judge:THE ORDINARY
Party Name:In the matter of the propounding for probate a paper writing purporting to be the last will and testament of FRAZEE LEE, and another paper purporting to be a codicil thereto
Attorney:Mr. William R. Coddington and Mr. Theodore Runyon, for the proponents. Mr. R. V. Lindabury, for Ezra D. and Daniel Hetfield. Mr. Garret Berry, for William H. Randolph.
Case Date:October 01, 1889
Court:Supreme Court of New Jersey
 
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Page 525

18 A. 525 (N.J.Eq. 1889)

46 N.J.Eq. 193

In the matter of the propounding for probate a paper writing purporting to be the last will and testament of FRAZEE LEE, and another paper purporting to be a codicil thereto

Prerogative Court of New Jersey

October 1, 1889

Mr. William R. Coddington and Mr. Theodore Runyon, for the proponents.

Mr. R. V. Lindabury, for Ezra D. and Daniel Hetfield.

Mr. Garret Berry, for William H. Randolph.

OPINION

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[46 N.J.Eq. 194] THE ORDINARY

The testator, Frazee Lee, died at his residence in Fanwood township, in Union county, on the 11th of August, 1888, at the age of eighty years. On the 9th of July in the same year he executed a paper, which is here offered for probate, as his last will and testament, and on the 21st day of the same month he executed another paper, which is offered as a codicil to that will.

The admission of these papers to probate is resisted upon the ground that at the times when they were respectively executed the testator did not possess testamentary capacity.

The principal contestants are two maternal uncles, who are testator's next of kin; one of them, Ezra D. Hetfield, is ninety-three years of age, and the other, Daniel Hetfield, is ninety. Neither of them was sworn as a witness, and neither of them appears to have taken an active part in this contest. The other contestants are of the blood of the testator's father, and claim an interest in the lands descended from him.

Frazee Lee never married. He had no sisters and only one brother, Daniel H. Lee, who died on July 8th, 1888, at the age of seventy-six years. The brothers lived with their parents until their father died, some thirty or more years ago, and then made their home on a farm with their mother until she died, in 1880. After that they lived together for the remainder of their lives, the younger, Daniel, dying a month before his brother. Their business ventures were, in the main, made jointly, and their property was held in common, even to a joint bank account. The most devoted and brotherly affection existed between them. By close economy and persistent industry, combined with business sagacity, they succeeded in amassing considerable fortunes. The relatives with whom they appear principally [46 N.J.Eq. 195] to have come in contact were William Hetfield, a son of the contestant Daniel Hetfield, Sarah House, a widowed cousin, about fifty-eight years of age, the daughter of Ezra D. Hetfield, the other of the principal contestants, and Maria Garthwaithe, seventy-three years old, a double first cousin whose parents are dead.

William Hetfield lived upon a farm near them and was accustomed at times to render them little services which he calls chores. Mrs. House and Mrs. Garthwaithe at several times of sickness assisted them. It does not appear that these services were paid for or that payment for them was ever demanded. When Mrs. House became a widow, the brothers proposed to her that she should permanently reside with them, but she refused to do so. Early in life the testator became a member of the Scotch Plains Baptist Church, in which his mother was a communicant, but for many years previous to his death failed to attend it and was delinquent in his duties to it. In 1883 a committee, termed a disciplinary committee, was appointed to wait upon him. This committee visited him several times. He represented to it that his health would not admit of his attendance upon church services, and at the same time gave it $ 20 for the church, and agreed to thereafter contribute $ 5 towards each semi-annual payment of interest upon the church debt of $ 5,000. Repeated applications to him for contributions to the church, because of his parsimony, evidently annoyed him. Yet his consideration for it seems to have been such that, instead of rudely refusing to give, he strove to excuse his refusals and to conciliate the church people by promises. To one of these people he said that he would remember the church when he died, if there was anything left. To another he said that he would keep what he had while he lived, and that when he was through with it the people of Scotch Plains church would be very much surprised. To yet another he gave as an excuse, that by strict economy he and his brother had gotten the little together, but it was going like the early dew and the morning cloud. When asked to remember the church when he made his will, he said that when he was done with his property it should be "judiciously invested." There [46 N.J.Eq. 196] can be but little doubt that he intended to devote at least a substantial part of his fortune to good purposes, and that the claims of the church were conspicuously before him. During the illness of Daniel Lee, Mr. Parks, the pastor of the Scotch Plains church, called to see the brothers, and had a conversation with them upon the subject of religion, and prayed with them. Daniel was not a member of the church, and was then more seriously ill than Frazee, consequently Mr. Parks's attention was particularly directed to him. Both the brothers appear at this time to have inquired as to the welfare of the church and to have expressed much interest in it. Neither of them was then confined to his bed. Perhaps William Hetfield exhibits more strongly than any other witness the interest that the testator took in the Scotch Plains church, when, in his testimony, he says that he was impressed that Frazee might leave it enough to pay its $ 5,000 debt, but not the bulk of his estate. The testator's remark to a witness named Manning, who, about the middle of June, 1888, sought to interest him in a young men's Christian association at Plainfield, that he hoped, at his death, his money would be used for good purposes, in the light of subsequent developments, is of important significance upon the question of testamentary intention.

In the course of their business dealings the brothers had frequent occasion for the services of lawyers, and became the clients of

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Messrs. Jackson & Coddington, a law firm at Plainfield. The senior member of this firm, Mr. Jackson, for a number of years preceding their death, advised them in all their legal business and difficulties. Two or three years before they died they talked with him as to the disposition that the law would make of the property of one of them if he should die, and were advised that it would go to the survivor of them, and that they need not make wills unless they desired to make bequests or devises to others. After this advice they apparently dismissed the subject of will-making from their minds until the summer of 1888. In June of that year Daniel became seriously sick, and determined to make a will. Whether Frazee reached a similar conclusion does not distinctly appear, but the indications are [46 N.J.Eq. 197] that the brothers determined to make their wills together. On the 25th of June Frazee wrote to Mr. Jackson as follows:

"June 25th, 1888.

"MR. JOHN H. JACKSON

"Dear Sir--We desire you to call and see us between the hours of 2 and 6 P. M. to-morrow if you can conveniently. If not, as soon after as you can.

"F. and D. H. LEE."

[Endorsed]--"Confidentially to J. H. Jackson."

This letter was delivered by Monroe B. Long, Daniel's physician, to Mr. Coddington on the day it was written. On the following day, at three o'clock in the afternoon, Mr. Jackson drove out from Plainfield, a distance of three and a half miles, to see the Lees. He says that he found Daniel lying on a cot in the parlor of their house, and Frazee walking about the room. Frazee shook hands with him, and said that Daniel desired to make a will, and would give Mr. Jackson instructions. Daniel, who was evidently quite sick, sat up in his cot, and then got up and sat at the table with Mr. Jackson, and gave him instructions for the preparation of his will, which were duly noted in writing. The will was then drawn and read over to Daniel in Frazee's presence, and then executed by Daniel, Doctor Long, who was there, and Mr. Jackson, being the witnesses to it. Frazee then said that he, also, would have his will drawn, and he then proceeded to give instructions, which were duly noted in writing. His will was then prepared and read to him in Daniel's presence, and executed according to the statutory requirements, in the presence of Mr. Jackson and Doctor Long as witnesses. To Mr. Jackson both Daniel and Frazee appeared to be in full possession of their faculties. After the wills were completed and delivered to the brothers, Frazee asked the lawyer what the charge for his services was, and upon being told that it was $ 10, remonstrated, saying that he had drawn a good many wills himself and had never charged more than twenty-five cents, except upon one occasion, when he had been required to redraft the will three or four times, and then his charge had only been a dollar. He also inquired about the collection of some interest money that was due to him, and was told that Mr. Coddington had it, and [46 N.J.Eq. 198] then he asked whether a chancery suit in which he was interested had been decided, and finally he instructed Mr. Jackson that, as he was not able to go to Plainfield, he wished Jackson to look after his business interests for him.

By his will thus made, Daniel gave $ 5,000 to a namesake, Daniel Lee Bonnell; $ 1,250 to Sarah House; $ 1,250 to Hettie M. Garthwaithe; $ 500 to William Hetfield; $ 500 to Henry Hetfield; $ 250 to Thomas Lee; $ 500 to the Scotch Plains Baptist Church, to be applied to the payment of its debt, and the residue of his estate to his brother Frazee. Frazee, by his will, gave $ 5,000 to Frazee Lee Bonnell, who was named for him; $ 500 to Sarah House; $ 500 to Hettie M. Garthwaithe; $ 500 to William Hetfield; $ 500 to Henry Hetfield; $...

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