Smith v. Smith

Citation25 A. 11,48 N.J.E. 566
PartiesSMITH et al. v. SMITH et al.
Decision Date31 May 1891
CourtUnited States State Supreme Court (New Jersey)

Appeal from orphans' court, Burlington county.

On petition of Andrew J. Smith and others a paper was admitted to probate as the last will of Hezekiah B. Smith. Eveline Verona Smith and others appealed, and the order admitting the will to probate was reversed. Andrew J. Smith and others appeal. Reversed.

Mark R. Sooy and Theodore Runyon, for appellants.

Joseph H. Gaskill, Sammi H. Grey, and Cortlandt Parker, for respondents.

MCGILL, Ordinary. The decree complained of reverses an order of the surrogate of Burlington county, made on the 14th day of November, A. D. 1887, which admitted to probate, as the last will of Hezekiah B. Smith, a paper, bearing date the 4th day of August, A. D. 1886, purporting to be such will, and at the same time refused to admit that paper to probate as the will indicated. Hezekiah B. Smith died at Smithville, in Burlington county, on the 3d day of November, A. D. 1887, one year and three months after the disputed paper was signed by him. Eleven days after his death the paper was offered for probate to the surrogate of Burlington county by nine persons named in it as its executors, and by the surrogate's order was duly admitted to probate as Mr. Smith's last will. In the petition for probate it was alleged that the testator's heirs at law and next of kin were Laura Cobb, a sister, and Elliott Smith, a brother. On the 8th of January, A. D. 1888, Eveline Verona Smith, Ella A. Fuller, Elton A. Smith, and Eugene Smith, claiming to be respectively the widow and children of Hezekiah B. Smith, appealed from the surrogate's order for probate to the orphans' court of Burlington county. In their answer to the petition of appeal the executors, among other things, denied the status claimed by the appellants as widow and children of the decedent, and thereupon the hearing of the appeal was stayed until an action commenced by Eveline Verona Smith against the executors for the recovery of dower could be determined. The dower suit was duly tried, resulting in a judgment in favor of the plaintiff, which was thereafter sustained in the supreme court, and also in the court of errors and appeals. Smith v. Smith, 52 N. J. Law, 207, 19 Atl. Rep. 255. Upon the affirmance of that judgment by the court of errors and appeals, the executors amended their answer to the petition of appeal to the orphans court by striking out of it their denial of the legal status claimed for the appellants, and thereupon, on the 9th day of April, A. D. 1889, under authority of the statute, (Revision, p. 756,) the orphans' court certified the questions involved in the appeal to the circuit court of Burlington county for trial before a jury. Later, in May, A. D. 1890, the judge holding the circuit court framed issues for the trial of the cause. Those issues were as follows: "First. Whether the paper purporting to be the last will and testament of Hezekiah B. Smith deceased, presented for probate, was 'signed, witnessed, published, and declared by him as his last will and testament, according to the statute in such case made and provided. Second. Whether the said Hezekiah B. Smith was, at the time of making and declaring said paper purporting to be a will, of sound mind, memory, and understanding sufficient to make and publish a will. Whether the making, signing, and publishing of said paper purporting to he a will was procured through undue influence, imposition, or fraud from or by the devisees or legatees named in said paper writing, or by any other person or persons. Fourth. Whether the said paper purporting to be a last will, propounded for probate by the propondents, was the' last will and testament of Hezekiah B. Smith, deceased." Upon these issues the case was brought to trial in October, A. D. 1890. The trial resulted in an affirmative answer upon the first issue, and a negative answer upon each of the remaining issues; so that, while it was held that the paper was duly executed as a will, and that such execution was not procured by fraud, imposition, or undue influence, it was decided that at the time the paper was executed as a will Hezekiah B. Smith was not of Bound mind, memory, and understanding sufficient to make a will, and that the disputed paper was not his will. When the trial was concluded, the circuit judge made return to the orphans' court as the statute requires, and thereupon the orphans' court made the decree here appealed from.

The jurisdiction of the ordinary, in a case of this kind, is not limited to a review of the propriety of the decree of the orphans' court upon the matters submitted to that court's judgment, nor is it restricted in any way by the determination of the issues considered at the trial in the circuit court. Whether the paper shall be admitted to probate as a will is presented to him as an original question, which he may determine either upon the evidence taken at the trial in the circuit, or upon that evidence supplemented by other proofs, or upon new proofs, at his discretion. Rusling v. Rusling, 36 N. J. Eq. 603. The case at the circuit was ably and exhaustively presented to the jury, and it has not been suggested that other material evidence upon the issues it presents can be had. I then approach the question I am to deal with upon the proofs that were considered by the jury at the circuit. That question, shortly stated, is whether the disputed paper is the last will and testament of Hezekiah B. Smith. The paper provides that the remainder of Mr. Smith's estate, after the payment of his debts, shall go to nine persons named, as a board of trustees, (they having power to fill vacancies in their number,) in trust, and the trust is defined as follows: "The property and estate herein bequeathed is to be held in trust by the said hoard of trustees for the following objects, namely: I desire that my estate, with its accumulations, shall be used in establishing and conducting a school for apprentices and young mechanics, on plans to be hereafter described by me, or, in case of my death before perfecting said plan's, the school above named is to be conducted on plans which I have from time to time described to most of the board of trustees herein named, and who shall approve of final practical plans in keeping therewith." In the argument before me the admission of this paper to probate was contested upon two grounds, viz.: First, that because of an insane delusion on the part of Smith that he had not been able to procreate his children, he failed, at the time when the paper was executed, to comprehend his children as natural objects of his bounty; and, second, because the paper was the product of an undue influence, exerted by a deceased paramour. That the paper was executed with all the formalities which the statute requires was not questioned. It has been held in repeated adjudications in this state that it is necessary to testamentary capacity that at the time of making his will the' testator must possess ability to comprehend those who appear as natural objects of his bounty, and appreciate the duty which recommends them for consideration. It is not required that he shall in fact correctly ascertain the legal status of each person who apparently stands in natural relation to him. In the exercise of reason, he may move upon premises established by false or insufficient evidence, or by mistake of law, and thus determine to exclude from his bounty those whom, but for his error, he would have recognized. The test is his ability to exercise reason and reach a rational conclusion, however erroneous, with reference to them. Stupid error in either his reasoning or conclusion is not lack of testamentary capacity. But it is otherwise if he sutlers from delusion. A delusion is the mind's spontaneous conception and acceptance of that as a fact which has no real existence except in its imagination, and its persistent adherence to it against all evidence. Middleditch v. Williams, 45 N. J. Eq. 726,17 Atl. Rep. 826. Mistake, whether of fact or law, moves from some external influence, which is weighed by reason. Delusion arises from morbid internal impulse, and has no basis in reason. The insistment in behalf of the respondents here is that Hezekiah B. Smith could not comprehend them, because when he made his will he labored under the delusion that he was childless, and never had had power to procreate a child. The burden is upon the respondents to clearly establish the truth of this proposition. The presumption of law is in favor of capacity. The law looks upon an inofficious will with suspicion, but if it can be accounted for on other reasonable hypotheses it will not be attributed to mental incapacity.

The legal status of Eveline Verona Smith as the wife of Hezekiah B. Smith is fully established in this case, both by uncontradicted evidence and the record in the dower suit. She was married to Smith in 1846. Two months after the marriage she gave birth to the respondent, Ella Fuller, and while Smith cohabited with her as her husband she gave birth to three sons: Elton, who was born in March, 1848; Eugene, who was born in May, 1850; and Edward, who was born in May, 1853, and died in 1879. In this inquiry the endeavor is to ascertain Mr. Smith's mental condition, and, notwithstanding there can now be no question as to Mrs. Smith's legal status as his wife it is important to know whether there were any circumstances to lead Smith, in the exercise of his reason, rightly or wrongly to otherwise regard it. His repeated declarations to several persons that she was not his wife indicate his rejection of the status that the courts have accorded her. How did he reach his conclusion? He said to one person that she came to him in trouble, and he took her to Charlestown, Mass., and had a friend marry them, and to another that he pretended to marry her in Boston. It has never been affirmatively proved that...

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