Bennett v. Bennett

• Decision Date: 15 March 1893
• Citation: 26 A. 573,50 N.J.E. 489
• Parties: BENNETT et al. v. BENNETT et al.
• Court: New Jersey Supreme Court

26 A. 573

50 N.J.E. 489

BENNETT et al.

v. BENNETT et al.

Prerogative Court of New Jersey.

March 15, 1893.

(Syllabus by the Court.)

On application for probate of an instrument purporting to be the will and testament of Henry Bennett, deceased, by Charles A. Bennett, Sr., and Charles A. Bennett, Jr., proponents, and the caveat filed by Hudson Bennett and Samuel L. Bennett. Application granted.

Frank P. McDermott and E. W. Arrowsmith, for proponents.

Samuel C. Cowart, John S. Voorhees, and William H. Vredenburgh, for caveators.

VAN FLEET, Vice Ordinary. The question in dispute in this, case is whether or not a writing purporting to be the will of Henry Bennett, deceased, is his will, and as such entitled to be admitted to probate. This writing bears date the 15th day of March, 1889, and the testator died in August, 1892. He was in his eighty-second year when he died, and within a day of being seventy-eight yearn old when he signed this paper. He died a bachelor, leaving as his nearest next of kin two brothers and thirteen nephews and nieces. His nephews and nieces were the children of two deceased brothers and two deceased sisters. He belonged to a family of seven children,—five sons and two daughters. Two daughters and two sons died before him, leaving children. He left property, consisting of both real and personal estate, worth about $25,000. By the writing on trial he gives about two fifths of his estate to his nephew Charles A. Bennett, Jr. Charles drew the writing and superintended its execution. Next after the gift to Charles, a gift of electric light and gas stocks, worth about $500, is made to Charles' father, a brother of the testator. The residue of his estate, with the exception of the chattels in his dwelling and barn, he directs to be divided into six equal shares, and he gives one share to each of his surviving brothers. Three other shares are given, per stirpes, to the children of one of his deceased sisters and his two deceased brothers, and the remaining share, or one sixth, is given to two of the four children of his other deceased sister. The only next of kin excluded by the writing who would take if no will existed are two sons of one of his deceased sisters, and the only person who takes under the writing who would not take if there was no will is his nephew Charles A. Bennett, Jr. This is, in substance, the disposition the writing makes of the decedent's estate.

That the writing was executed in strict compliance with the requirements of the statute is not disputed, but its admission to probate is resisted on two grounds: First, it is said that, when it was made, the testator did not possess sufficient capacity to make a valid will; and, second, it is charged that the writing is the product of fraud.

In attempting to establish the first ground the caveators have proved that, when the testator was a lad, he was thrown or fell from a horse, and fractured his skull, and that subsequently, to relieve his brain from the pressure thus produced, a small piece of his skull was removed, and a silver plate put in its place. He afterwards, however, learned the tailor's trade, and carried on the business of a tailor for some years. He was always slow of speech. One witness says that he was slow to apprehend, and appeared to think with very great effort, and to express himself with very great effort; while another says that he thought lie was weak-minded, because he lacked perception, and did not quickly discover when he was the subject of ridicule or jest; and a third says that he thought his mind was a little below the average in quickness of perception. He was never able to talk fluently. For many years, it is known, that in telling a story or narrating an incident he would sometimes pause and hesitate, as if searching for a word; but, until a few years before his death, he was always able to find the word he wanted, and would, when he found it, proceed with his narrative. As he advanced in years this infirmity increased, and during the last four or five years of his life a few instances are proved when, either because his memory failed to give him the word he wanted, or the continuity of his thought became broken, he was unable to finish what he commenced to say. He was a religious man, and formerly frequently prayed in public. His prayers, during the last years of his life, are described as somewhat incoherent. One witness says that during this period, in praying in public, he would start off quite fluently, and then would pause and hesitate, and, when he resumed, would give expression to a thought different from that which he was attempting to utter when he ceased speaking. This witness also says that, the last time he heard him attempt to pray in public, he commenced, and, after uttering a few sentences, he paused for a long time, and then sat down abruptly, and that from that time forth he never again attempted to pray in public. Another witness says that he has been present on more than one occasion when the testator, after commencing a prayer, would stop, apparently for the want of words to express his thought, and, after hesitating for a while, would sit down before the sentence he was attempting to utter was completed, or, in the language of the witness, "right in the midst of a sentence." It is also shown that, about the time he executed the writing in question, his carriage and walk indicated a failure of physical vigor. His step became less elastic, and his gait slower, and during the last two years of his life, some of the witnesses say, he sometimes shuffled when he walked. He also repeated his stories to the same person, manifesting the same zest in their repetition that he did in their first narration. Both prior and subsequent to the execution of his will, it is shown that his recollection of localities was somewhat faded and confused, and that on two occasions he confounded one place with another, both of which he had lived near and known well all his life. He thought he was at one place, when in fact he was at another, more than three miles distant from the place where he supposed he was; and his brother Hudson, one of the caveators, swears that, more than three years before the writing in question was executed, the testator, after complaining to him of his head, said: "I am getting so I aint fit for business. I tell you I am demented." This summary, I believe, embraces every fact to be found in the evidence possessing the slightest weight or force in proof of incapacity.

The evidence offered to prove capacity shows that, prior to the execution of the will, the testator was a director of three corporations,—a fire insurance company, a gas company, and an electric light company,—and that he continued in these offices, discharging the duties of each, up to the time of his death. So far as appears, none of his fellow directors or any stockholder of either corporation ever doubted his competency or fitness. He retained control of all his business affairs up to the time of his death, and managed them with prudence and sagacity. On the 19th day of April, 1889, a little over a month after the execution of his will, he negotiated a contract for having his buildings painted, and reduced the contract to writing. The part he took in this transaction, as described by one of the persons with whom the contract was made, shows not only that at that time he had a sound mind, and knew how to make a good bargain, but also that he knew how to guard and protect his rights. The contract was put in writing at his suggestion, and he wrote it himself, without assistance. One of the parties to the contract says that he mentioned everything he wanted painted as he wrote the contract. In the spring of 1892 he negotiated the sale of a lot of land in Freehold to the gas company of which ho was a director. When the negotiations were opened, he asked $1,500 for the lot. It was worth, as the evidence shows, about $1,000. He knew the company needed it, and could not get along very well without it, as it was one of a very few lots that were available for its purposes. At last he agreed to take $1,400, and the lot was conveyed to the company at that price. His book of account, extending from 1872 up to the time of his death, is in evidence. The entries up to the time of his death are nearly all in his own handwriting, and the book appears to contain a full record of all his business transactions, showing not only the state of his account with his tenants and other persons with whom he had had dealings, but also the times when and the amounts paid by him for taxes and insurance premiums. The entries made subsequent to the date of the will—and they are numerous—are precisely of the same character as those made before, and evince the same business intelligence, skill, and care. The will now before the court is a second draft. When the first draft was read to the testator, its draughtsman swears that he asked what was to become of his chattels, and that he was told that under his will, as it was then written, they would have to be sold. He at once said that he did not want that done, and that his will in that respect must be changed; that he wanted his chattels divided, but, as he was not then prepared to state just how they should be divided, he directed that his will should be so drawn as to give them to his executors, and he would subsequently give directions as to how they should be divided. The draughtsman also swears that in reading the first draft, when he read the clause giving one sixth of the residue to the four children of one of his deceased sisters, the testator directed him to stop, and then said that he scarcely knew his sister's two sons, and had not seen them for a long time, and guessed they did not care any more for him than he did for them, and thereupon directed that their names should be...