O'Brien v. Dwyer

• Decision Date: 24 May 1889
• Citation: 45 N.J.E. 689,17 A. 777
• Parties: O'BRIEN v. DWYER et al.
• Court: New Jersey Supreme Court

17 A. 777

45 N.J.E. 689

O'BRIEN

v. DWYER et al.

Prerogative Court of New Jersey.

May 24, 1889.

Appeal from orphans' court, Hudson county; LIPPINCOTT, PAXTON, and BEACH, JJ.

James O'Brien appeals from a decree allowing an instrument as the will of Hannah Dwyer, deceased, by which decedent's estate is given to the respondents, Edward and Mary Dwyer.

James F. Minturn and Leon Abbett, for appellant. John C. Besson, for respondents.

MCGILL, Ordinary. This case presents the question whether Hannah Dwyer, who died on the 16th day of December, 1886, of pulmonary consumption, possessed capacity five hours before her death to make the will in dispute. The will is in favor of her husband and his daughter, to the exclusion of the appellant, her only brother and next of kin. It devises real estate valued at about $3,000 and bequeaths personal property worth less than $300. The property was derived from the mother of the testatrix, who died in 1883, leaving her estate to her two children, Hannah and James O'Brien, and consists mainly of tenement-house property in the city of Hoboken. At her death the testatrix was 31 years old. She had been married about four months to Edward Dwyer, an itinerant tea merchant. Dwyer and his daughter boarded with the O'Brien about 13 years before his marriage to the testatrix, from a time shortly after the death of Dwyer's first wife, when his child was little more than three years old. From that time the child had been the special care of Hannah O'Brien, had been trained and educated by her, and was the recipient of her affection. Dwyer was about nine years his wife's senior. He had been attentive and kind to her for years before he became her husband, and was affectionate and loving to her after she became his wife. The testatrix was ill for several weeks before she died, and during that time her husband abandoned his business, and devoted his entire time to her care. The appellant, James O'Brien, was two years his sister's junior. He had not married, but had made his home with his sister and her husband in one of the houses that belonged to his sister and himself. He appears to have enjoyed a full share of his sister's affection. The only shadow of disagreement that seems to have existed in the family thus composed was Mrs. Dwyer's occasional reproach of her husband when he would accuse the appellant of intemperance and irregularity in his habits, and that amounted to little more than remonstrance when the husband saw fit to censure a brother whom the wife evidently loved. It does not, however, appear that such reproaches disturbed the affectionate relations that existed between Mrs. Dwyer and her husband and his daughter.

The evidence credibly establishes that the testamentary disposition of the testatrix immediately previous to the execution of the disputed instrument was in favor of her husband. On the 14th of December,—two days before her death,—she gave Dwyer authority in writing to draw some money from her account in a savings bank. The bank was unwilling to honor her order until her signature should be attested by some one with whom its officers were acquainted. John R. Wiggins, a merchant of Hoboken, of unexceptional character and standing, was agreed upon as a proper witness to her signature, and on the evening of the day indicated he visited Mrs. Dwyer. When he called at her residence she was seated upon a lounge, and, although evidently an invalid, was bright and talkative. He says that he then thought that she would live three or four months; that she had one or two fits of coughing while he was there, but had sufficient strength to walk to a table, signed the paper that he was to witness, and returned to the sofa, unassisted. He further states that he remained in conversation with her for more than a hour, and that in that conversation she told him that during her sickness her husband had been "kind," "faithful," and "loving" to her, and "that his business had gone behind;" and expressed to him a hope that she would recover, and a desire to make a will in her husband's favor. Continuing, this witness says: "She said she desired to reward him for his services to her,—his loyalty and kindness to her. Then she commenced talking in a general way about the relations between husbands and wives; that she thought that the most sacred relationship upon the globe. She said her husband had been her best friend, even before they were married; that on three different occasions they were to be married, but that death intervened every time. Her mother died at one time, and some one else died at another time, and in consequence the wedding was postponed. She said that, but for her husband's prudence and wisdom in managing the estate for her and her mother, the estate would have been dissipated; that it was largely through his wisdom and care that the estate had increased in extent; and she thought that it was her duty, before she died, to make a will giving him what she had, both real and personal. I think she said she had a brother and had cousins, and she would not like to see other parties 'come in and take away what I think should properly go to my husband; and as soon as 1 get a chance I will make a will willing all that I have to Ed.'" The day following this conversation the testatrix was much worse, and, at the solicitation of a neighbor, a priest was sent for, who administered to her the last rites of the Roman Catholic Church. After that visitation, the fortitude that had sustained her seemed to succumb to her disease, and she became almost unconscious. Her husband says that she repeatedly asked to have a lawyer summoned, and that in the evening John C. Besson (a solicitor of this court, of unquestioned integrity) was sent for, and that between 7 and 8 o'clock he waited upon Mrs. Dwyer. Mr. Besson testifies as follows: "I met Mr. Dwyer, and he told me that his wife wanted to make her will. I went into the room where she was lying in bed. I found her in a very low state. She was very sick,—seemed to be somewhat in a stupor. He raised her up, and told her that Mr. Besson was here, and she seemed to revive a little. Then I asked her if she wanted to make her will. She seemed to nod her head as an indication that she did. I asked her how she wanted to make her will, and she made an effort to speak, and said something which I couldn't understand. He interpreted it to me, and said that she wanted to give her property to him and his daughter,—Mamie, I think they called her. I then said to him that as she was in such a state that I would not be willing to sign a will as a witness that night, that I thought that she ought to be left to rest during the night, and that I would prepare a will for her as he told me that she had said she wanted it, and that I would come in the morning, and that in the mean time he could send for a doctor and have him there; that it was a case that might be doubtful whether she was in a condition to make a will or not, and that I would not consent to be a witness unless the doctor was present to examine her, and see her condition."

Another circumstance is put in evidence as indicative of her condition that evening. An hour after Mr. Besson left, the appellant came from New York, bringing with him one Josephine Kiely, who had been an acquaintance of the sick woman. In the presence of Mr. Dwyer and of a Mrs. Hanka and one John Powers, who were neighbors, and Edward Rogers, who was a friend of Mr. Dwyer, O'Brien took Miss Kiely to his sister's bedside, and said to his sister that "Joe Kiely" was there, and asked his sister if she knew her. There is some contradiction between the witnesses at this point. O'Brien says that his sister replied to his question, "What? Who is Joe Kiely? I don't know Joe;" and that he explained, "Joe, of Rondout;" and she answered faintly, "No; I don't know Joe." Mrs. Hanka, who was...