Campbell v. Cavanaugh

• Decision Date: 20 June 1923
• Citation: 125 A. 569
• Parties: CAMPBELL v. CAVANAUGH et al.
• Court: New Jersey Court of Chancery

125 A. 569

CAMPBELL

v. CAVANAUGH et al.

Court of Chancery of New Jersey.

June 20, 1923.

Suit by George William Campbell against Edward F. Cavanaugh and others, in which defendants filed a counterclaim. Decree in accordance with opinion.

Decree affirmed, Campbell v. Smullen (Err. & App.) 125 Atl. 926.

Frank H. Hennessy, of New York City, for complainant.

R. Robinson Chance, of Jersey City, for defendants.

ROSENBERG, Adv. M. The bill of complaint is filed to establish a will of Mary Frances Campbell alleged to have been made and executed on the 1st day of March, 1915, and thereafter lost. The complainant is the husband of the testatrix. He claims to be the sole legatee and devisee under that will and executor thereof. The defendants are the brother and two sisters of the decedent and the husband of one of the sisters.

The bill alleges further that the two sisters of the decedent, namely, Kathryn V. Burns and A. Aloysia Smullen, and William H. Smullen, husband of A. Aloysia Smullen, by deed dated the 3d day of March, 1921, and recorded on the 8th day of March, 1921, conveyed to the complainant their interest in the lands and premises which were owned by the said testatrix at the time of her death. This allegation has in reality no relevancy to the questions raised by the bill itself.

The defendants have filed answers, the substance whereof is that they do not admit or deny the allegations of the bill of complaint, hut state they have no information sufficient to form a belief and put the complainant upon strict proof.

The defendants A. Aloysia Smullen and Kathryn V. Burns have filed a counterclaim in which they allege that the deeds which they made to the said complainant were obtained by fraud and pray that they may be set aside.

1. On or about the 1st of March, 1915, the complainant and his wife executed their wills, in which each devised to the other all his or her property, real or personal, and appointed the other as executor of the will. It is sufficiently established to my satisfaction that these wills were drawn by Charles A. Burr, a lawyer in New York, and were duly executed in the presence of two witnesses, and that the same were executed and attested in entire accordance with the laws of this state.

During the summer of 1919, Mrs. Campbell consulted Frederick C. Simons, a lawyer at Great Neclc, Long Island, and handed him a carbon copy of the will which her husband had made, saying to him that she had lost her will, and he thereupon prepared two wills, one for himself and one for her husband. These wills were intended to he identical in their provisions and phraseology with the will which had been executed in March, 1915. The carbon copy of the will of 1915 drawn by Mrs. Campbell was produced in evidence before me, as well as the draft of the will which was prepared by Mr. Simons in 1919. This will that was drawn in 1919 was delivered by Mr. Simons to Mrs. Campbell. Mr. Simons testifies that—

"Subsequently, I had another talk with Mrs. Campbell, and she said that they were going to come down and fix up these wills. I" says, 'Haven't you found the old one yet?' and she said no, they hadn't found it."

They never came, and these new wills were never executed. The will of March, 1915, has never been found.

As I have above indicated, I am entirely satisfied that the will in the form set forth in the bill of complaint was duly executed on the 1st of March, 1915. The question then before me is: Can this will of March, 1915, be established as a lost will?

Before determining that question, it may be necessary to say a few words on the preliminary questions raised by the defendants as to the admissibility of the evidence adduced before me. The first claim is that the declarations of the alleged testatrix are not admissible. The cases which are cited in support of this point are all cases where the declarations of the testator were offered as to the contents of a will which was actually produced and proved. None of these cases go to the question of the evidence of the testator as to the loss or disposition of a will or the contents of a lost paper. That the declarations of the testator both before and after the making of the will are admissible in a case such as this was decided in the famous case of Sugden v. St. Leonards, L. R. 1 Probate Division, 154, which has been cited and followed in this state.

Secondly, the objection is also made to the testimony of the attorney who drew the wills on the ground that the statements to him of Mrs. Campbell and her instructions to him were privileged communications and not admissible. Merely to state this objection is to refute it, to say nothing of the fact that no objection was made on this ground at the hearing. It is, however, unnecessary to deal at any length with these objections in view of the conclusions I have come to as to the case itself. On the whole case, and on the entire evidence that has been produced, I am of the opinion that the will of March 1, 1915. cannot be established and proved as a lost will, and I may say that I have come to this conclusion after great hesitation and much to my regret.

It is a well-established principle that when a will is left in the hands of the testator and is not found at the time of his death, a presumption of a revocation arises. And it is equally well settled that this presumption may be overcome by proof.

All the cases, however, are in accord that where the will is lost or destroyed while in the possession of the testator, the loss or destruction must be without his knowledge, or the presumption of revocation is not overcome. Sugden v. St. Leonards, supra; McBeth v. McBeth, 11 Ala. 596; Dawson v. Smith, 3 Houst. (Del.) 335; In re Deaves, 140 Pa. 242, 21 Atl. 395. Whatever would have been the situation before the time the testatrix went to Mr. Simons to have a new will drawn, it is unnecessary to consider.

At that time, six or seven months before her death, she knew that her will was lost or was where it could not readily be found. She realized that under those circumstances she would, if she died, be considered, or at least be in danger of being considered, to have died intestate. That must have been the reason why she had a new will drawn. Yet she never executed the new will —with all the opportunity for doing so, she must be presumed to have had a good reason for not executing it. Every one is charged with knowledge of the legal consequences of his acts and his omissions. It is clear that the decedent realized the possible situation at the time of her death and with the opportunity to provide against it did nothing.

There is evidence that the decedent was ill during that time, but she was not so ill that she could not have gone through the simple formality of having her will attested. In fact, there would be the more inducement if her health had been in her judgment precarious, to have this done. That she may have continued to have the intention to leave all her property to her husband does not affect the result, so long as she did not put that intention into the form which the law has devised for her.

There is evidence on the part of the defendants that the decedent was not living happily with her husband. It is true that at the time of her death she was living apart from him,—whether because of any disagreement or for other reasons the testimony is in some conflict. It is established, to my mind, that the husband advanced to the decedent the money for the real estate whereof she died seised. These various considerations are, in view of the legal situation, it seems to me, of no importance.

The following language of Chief Justice Paxson, in Deaves' Appeal, supra, is peculiarly applicable to the case in point:

"This was an attempt to probate a will alleged to have been lost during the lifetime of the testator. There is no doubt that when it is shown that the will of a testator was in existence, unrevoked, at the time of his death and was afterwards lost or destroyed, its contents may be proved by parol, and the will, as thus reproduced, may be admitted to probate. So much was decided in Foster's Appeal, 87 Pa. St. 67. The weak spot in the appellant's case is that there was no proof that the testator left behind him an unrevoked will, or any will whatever. On the contrary, it is an admitted fact that the will, which it was alleged the testator had executed, was lost or destroyed in his lifetime, and that its loss was known to him months before his death. There was proof of his declarations that he intended to make another will, possibly containing the same provisions, but he never did so. Knowing that he had no will, he declined or neglected to make one. From this a presumption of revocation may fairly be inferred. It would not be safe to place too much reliance upon the declarations of a testator under such circumstances. For anything we know, he may have destroyed his will because he was not satisfied with its provisions, and yet have decided to conceal the knowledge of that fact to avoid importunity."

See, also, McBeth v. McBeth, supra.

...