In re Middleton's Will

• Citation: 59 A. 454,68 N.J.E. 584
• Parties: In re MIDDLETON'S WILL.
• Decision Date: 22 November 1904
• Court: United States State Supreme Court (New Jersey)

59 A. 454

68 N.J.E. 584

In re MIDDLETON'S WILL.

Prerogative Court of New Jersey.

Nov. 22, 1904.

Appeal from Orphans' Court, Cumberland County.

Proceedings to probate the will of Benjamin Middleton, deceased. His widow, Ellie J. Middleton, filed a caveat against the probate of the will, and from a decree admitting it to probate she and others appeal. Affirmed.

Samuel K. Robbins and Louis H. Miller, for appellants.

Martin W. Lane and James S. Ware, for appellees.

BERGEN, Vice Ordinary. This appeal requires the consideration of the decree of the orphans' court of the county of Cumberland admitting to probate the last will and testament of Benjamin Middleton, deceased.

The testator died on the 7th day of January, 1904, leaving a last will and testament and surviving him, as next of kin, as appears in the petition for probate, a widow, Ellie J. Middleton, residing in Philadelphia; Louis Middleton, a brother, residing in Tioga, Pa.; and Bushrod Hotteck, a nephew, residing in the city of Philadelphia. The will bears date the 6th day of January, 1904, and, after providing for the payment of his debts, funeral expenses, and place of burial, and the erection of suitable tombstones at his grave, disposed of his estate as follows: To Benjamin, the son of John Lahner, the sum of $500 when he arrives at age; to his wife, Elite, his parlor furniture, piano, sewing machine, and whatever she might be entitled to for dower in his estate, with the recital that she had deserted his home on the 4th day of October, 1890; to his brother, Louis, his watch, chain, diamond stud, Masonic emblems, and all family pictures; to Minnie Watson Gilbert, substantially all of his house furnishings, by a somewhat particular description, together with his undivided one-half interest in the stock and fixtures of a millinery business then carried on by himself and Minnie Watson Gilbert as partners; and also the sum of $300 to pay her for taking care of his dog, "Trix," during its life; to the said Minnie Watson Gilbert, the residue of his estate. Minnie W. Gilbert and the Cumberland Trust Company were appointed executors, with power to sell his real estate.

The widow filed a caveat against the probate of the will, and on the hearing it was contended in support of the caveat, first, that the testator was of unsound mind when the will was executed; and, second, that he was unduly influenced by Mrs. Gilbert in the making of his will. The evidence shows that the first objection has no foundation. The testator undoubtedly was an excessive drinker of intoxicants during the last 10 or 15 years of his life, with the exception of about 3 months before his death, when the testimony shows he practically abstained, and there is nothing in the "evidence which shows that when this will was executed his mind was not what is usually called "sound and disposing." All the written memoranda given to the attorney who drew the will were prepared by the testator by erasures and interlineations of a previous will, indicating the changes he desired made, so far as he could do so, and to this were added certain oral instructions as to the disposition of certain property not in existence when the former will was executed. The care and method exercised in doing this, and the testimony of the witnesses as to his mental capacity, convince me that the first objection has not been sustained.

The material facts upon which it is sought to sustain the charge of undue influence are as follows: In 1890 the appellant left the home of her husband, and has never since resided with him. They were married in the year 1870, and resided in Philadelphia for about 12 years thereafter, when they removed to a farm near Moorestown, in the hope, as the appellant testifies, that he would reform, he being at that time an excessive drinker; but, according to her statement, this hope was not realized, for, although he continued to attend to his business, he was habitually drunk, and cruel to her, for which reason she left him, but, after staying away three or four months, returned. The date of the first separation does not appear, but I gather from the testimony that it was in the year 1886, and she returned because her husband constantly wrote to her, insisting on her coming back. The reasons she gives for leaving him finally in 1890 appear in the testimony as follows: "Q. What was the cause of your leaving him the last time? A, Cruel treatment. I couldn't stand him. Q. That you made up your mind to leave? A. I had to leave. Q. That was quitting, wasn't it? A. Yes, I was afraid of my life—a man who would run around the house and put up a pistol. Q. Then you had made up your mind to quit him as long as he acted the way he was acting? A. Yes; that was right" So far as the evidence in this case shows, the reasons given by the wife for deserting her husband were his drunkenness and cruel treatment of her. After his wife left him the testator met Mrs. Gilbert at Atlantic City, and I feel...