Ayers v. Ayers

• Court: New Jersey Supreme Court
• Writing for the Court: MCGILL, Ordinary.
• Citation: Ayers v. Ayers, 12 A. 621, 43 N.J.E. 565 (N.J. 1887)
• Decision Date: 07 October 1887
• Parties: AYERS v. AYERS et al.

12 A. 621

43 N.J.E. 565

AYERS

v. AYERS et al.

Prerogative Court of New Jersey.

October 7, 1887.

Appeal from orphans' court, Middlesex county; COWENHOVEN, O'GORMAN, and NEWTON, Judges.

This is an appeal by Anna M. Ayers from a decree of the orphans' court admitting to probate a document as the last will and testament of her husband, Ellis M. Ayers, deceased.

Garret Berry, for appellant. W. Strong & Sons, for respondents.

MCGILL, Ordinary. Ellis M. Ayers executed the paper which is the subject of this contest on Sunday, the 19th day of June, 1887, at about 3 o'clock in the afternoon, and died the next day at about 11 o'clock at night. His estate consisted of the undivided half of a small farm of about 32 acres, situated near Railway, and some household furniture and farming implements. The farm was owned by the testator and his brother, Samuel. The testator resided in the dwelling-house upon the farm with his mother and wife, and his two children, both of whom were under two years of age at his death. The brother, Samuel, assisted in working the farm, but did not reside upon it. The will was drawn by two cousins of the decedent, Joseph Ayers, a physician of Newark, and his sister, Sarah M. Noe, who, with their father, had come to pass the day at the farm. At the time the paper was executed, the testator was confined to his bed in the last stages of consumption. His physician, Walter E. Cladek, who was sworn for the caveatrix, says that his patient was feverish, and at times just prior to his death delirious. The will was prepared at the suggestion of the brother, Samuel, to his cousin Joseph Ayers, in a conversation in the barn just prior to the making the instrument. This entire conversation is not given, but from the fragments disclosed by the evidence I gather the fact that Samuel suggested the propriety of a will. It is insisted for the appellant that the brother's design in procuring such paper was that he might be relieved of the burden of the maintenance of his mother, and at the same time retain possession and control of the entire farm, and prevent any portion of it going into the possession of the appellant's father, who occupies adjoining lands. This insistment is based solely upon proof of the fact that Samuel suggested the propriety of a will, coupled with the subsequent production of an instrument so framed that provision is made for the support of the mother, and the brother may possibly, for a time at least, retain possession and control of the farm. That instrument provides that the executors may sell the real and personal estate; that one-third of the income of the estate shall go to the support of the testator's mother for life, and that the remainder shall go to the support and education of his two children; that, if either child shall die before he or she shall reach the age of 18 years, his or her interest in the estate shall go to the surviving child; and that, if both shall die before that age, the income of the estate shall go to the wife for life, and the principal to the testator's next of kin. It appoints the wife guardian of the children; and the brother, Samuel, and an uncle, Ezra Ayers, executors of the will. The decedent's wife, Anna M. Ayers, was the caveatrix below, and is the appellant here. She contests the admission of the paper to probate as her husband's will, alleging, as grounds for so doing—First, that the decedent's cousins made the will for him, and that he signed it without, at the time, understanding it provisions, or possessing sufficient mental capacity to understand them; and, second, that the paper was not executed with the formalities required by the statute.

There can be no doubt that the testator was very ill at the time the will was executed. His lungs were in such a condition that he was in a continual struggle for breath. His strength was certainly leaving him, despite the stimulants with which he was sustained. He was feverish, but I think not affected to delirium. His physician, who visited him seven times, gives it as his opinion that his patient was at times delirious; grounding his opinion upon the patient's insistment that he was better, or had slept well, when the contrary appeared to be the truth. I cannot agree that this is a safe criterion by which delirium may be determined, for it is well known that many of those who suffer with consumption, when in full possession of their faculties, will hope and deceive themselves to the very end of life. The testator's remarks to Mrs. Noe, when she left him to return to her home, and said that she did not expect to see him again "this side of the river," that he did not know, that perhaps he would rally, indicates that he was not an exception to this class. Dr. Cladek seemed to be daily expecting his patient's death. Possibly, the patient's assurances may have sprung from a desire to encourage his despondent doctor by good, though perhaps not truthful, accounts of his condition. Both Mrs. Noe and Ezra Ayers speak of conversations had with the testator on the day, and about the time, the will was executed, at which he gave no indication of being delirious. Joseph Ayers, who took a principal part in the preparation of the will, is a physician. He swears most positively that the testator was rational, and understood the instrument as it was made. He says that he first took the testator's instructions for the will, and put them in proper form, and read them to him, and then had the will prepared, and read that to him, and that at each reading the testator expressed himself as fully satisfied with the document. The caveatrix does not swear that her husband was delirious, but shows that he was in so nervous a condition that he directed her to go out of the room, with the remark, "This excitement will kill me." She thinks that his excitement was attributable to the constant moving of persons about the room of the sick man. I think that the weight of evidence clearly establishes that the testator had capacity to understand, and did fully comprehend and intend, the provision of the will. I fail to find anything in the case to justify even a reasonable suspicion that any fraud was practiced upon him for the benefit of Samuel.

The second ground of contest is based upon the insistment that the formalities required by the statute were not complied with. The statute requires that the will (1) shall be in writing; (2) shall be signed by the testator; (3) his signature shah be made by the testator, or the making thereof acknowledged by him; (4) and such writing declared to be his last will in the presence of two witnesses present at...