Elkinton v. Brick

• Decision Date: 24 September 1888
• Citation: 44 N.J.E. 154,15 A. 391
• Parties: ELKINTON v. BRICK.
• Court: New Jersey Supreme Court

15 A. 391

44 N.J.E. 154

ELKINTON

v. BRICK.

Prerogative Court of New Jersey.

September 24, 1888.

(Syllabus by the Court.)

Appeal from orphans' court, Salem county; WOOD, PLUMMER, and HITCHNER, Judges.

M. P. Grey and S. H. Grey, for appellant. C. H. Sinnickson and W. E. Potter, for appellee.

MCGILL, Ordinary. This appeal is from a decree of the Salem orphans' court, which admits to probate, with the last will of Charles Elkinton, a paper purporting to be a codicil to that will. The will bears date on the 28th day of October, 1876, and the codicil on November 28, 1879. When the will was made, the testator was about 70 years of age, and resided at the village of Pennsgrove, in Salem county. His wife was dead. The natural objects of his bounty were his four sons. By the will he divided his property into four equal parts,—one of those parts he gave to his son George; another to the wife and children of his son Joseph; another to the wife and children of his son James; and the remaining part to the wife and children of his son Franklin. He directed that each son's indebtedness to his estate should be deducted from the share which should come to that son, or to his wife and children. He had taken from each of his sons a bond for moneys that had been advanced to him; and, of these bonds, that which was given by Franklin bore date on July 2, 1872, and was to secure the payment of $6,607.33—a much larger sum than any of the other bonds secured. Franklin, however, when sworn as a witness, acknowledged that he gave the bond to his father, without complaint that it exceeded his just indebtedness. The principal and interest due upon this bond, and a small additional indebtedness of Franklin, will absorb the entire share that his wife and children will take under the father's will. The real contention is whether the share that is to go to Franklin's family shall pay the amount due upon this bond. In the appellant's behalf, it is claimed that the testator gave Franklin's bond to his wife in 1878; and that the disputed codicil to the will, which expressly charges the bond against Franklin's share of the estate, must be rejected. On the other hand, it is contended that the bond was stolen from Charles Elkinton; and that the codicil was made to provide against the consequences of that theft, and is valid, and should be admitted to probate. The validity of the codicil is the subject of the present inquiry. That instrument contains the following recital: "Whereas, since making my last will and testament, I have lost out of my possession a certain bond, bearing date some time in the year 1871, for six thousand and six hundred dollars, and bearing interest at seven per cent. per annum, which I held against my son Franklin B. Elkinton, as evidence (in part) of his indebtedness to me, at that time;" and directs that the amount of that bond, with the interest accrued thereon at the testator's death, be deducted from the share of the estate which, by the will, was bequeathed to Franklin's wife and children, and further charges against that share of the estate an additional indebtedness of $535, and interest. The appellant, who is the wife of Franklin Elkinton, assails the codicil on three grounds: First, that Charles Elkinton did not possess testamentary capacity at the time he signed it; second, that it was the product of undue imfluence, exercised by George Elkinton; third, that Charles Elkinton did not, in the presence of two witnesses, declare it to be a codicil to his will.

The proofs fail to sustain the first insistment. At best, they establish that the testator was addicted to the habitual use of intoxicating liquors about the period when the codicil was made; that he was occasionally drunk, and that, before he died, he was afflicted with softening of the brain, and became imbecile; but I am entirely satisfied by them that, when the codicil was made, Mr Elkinton possessed testamentary capacity. The witnesses produced by the appellant, to show mental incapacity, are few, and may be all subject to the criticism that their interest is with the appellant. Charles Elkinton is the appellant's son, and he is accused of stealing from his grandfather the bond which the codicil is designed to re-establish. Catharine Culin, for eight years, has been the appellant's servant at her residence in Philadelphia. Mrs. Vance, who resides at Wilmington, Del., is connected with the Elkinton family, and, by issues in this controversy, is put in an attitude of defense against the proponent's attack, and of friendship for the appellant. Dresden McCarthy has had differences with George Elkinton, who is accused of having influenced or procured his father to make the codicil in dispute. They all testify to instances of absence of mental power in the testator during the fall and summer of 1879; but McCarthy qualified his testimony by adding that he could not say that the mental condition that he instanced was continuous. On the other hand, the proponent produced a number of apparently disinterested witnesses, who had been neighbors and friends of the testator, or, so situated with reference to him, that they had abundant opportunity to judge of his mental condition. William Walker was a witness to the codicil, and is a barber in Pennsgrove. He states that in the summer and fall of 1879 the testator frequently came to his barber-shop, and there engaged in conversation, without exhibiting any mental impairment. Dr. Johnson, a physician, also saw the testator frequently in the summer and fall of that year, but failed to notice indications of mental unsoundness. He states that, in his opinion, the testator was sound in mind in that year. He says that the testator would drink, and that, while under the influence of liquor, he would act and talk strangely, but that when he was sober his mind was sound. He says that this continued until the year 1881, when the mind began to fail, but that until the year 1883 Mr. Elkinton was not imbecile. The orphans' court attached importance to the testimony of this witness, and I think justly, for he seems to have had full opportunity for observation, and to have intelligently taken advantage of it. He appears to be entirely disinterested in the event of this contest, and to be entitled to full credence. Charles Leap was the manager of the Pitman Meadow Bank Company, in which Mr. Elkinton was interested. He states that between November 10 and December 4, 1879, while working on a meadow bank, he dealt with the testator, and advised with him about the construction of a sluice, and was then impressed that the testator was of sound mind. James Casey, who was a farmer tenant of the testator, mentions dealings that he had with Mr. Elkinton in the summer and fall of 1879, which indicate that the testator had a good memory and capacity for business. Besides these witnesses, others, more or less interested in the event of this suit, testify to the soundness of the testator's mind.

The presumption of law is in favor of testamentary capacity, and those who insist on the contrary have the burden of proof. They may shift the burden by showing that insanity existed prior to the making of the disputed paper. After such proof, the proponents must show that the execution of the will was during a lucid interval. Turner v. Chessman, 15 N. J. Eq. 243; Trumbull v. Gibbons, 22 N J. Law, 155; Whitenack v. Stryker, 2 N. J. Eq. 11; Sloan v. Maxwell, 3 N. J Eq. 563; Bay v Day, Id. 549; Turnure v. Turnure, 35 N. J. Eq. 441. The burden of proof, as to the want of testamentary capacity in this case, was upon the appellant. I think that she has failed to bear it, and that the proponent, by his proofs, has fully established that which the law, in the absence of proof, presumes. To prove that the testator, about the time of the execution of the codicil, was addicted to the habitual use of intoxicating liquors, to such an extent that he was occasionally drunk, was not sufficient to render it incumbent upon the proponent to show that, at the time the codicil was executed, he was free from incapacitating intoxication. Andress v. Weller, 3 N. J. Eq. 608. The person who asserts such drunkenness must show affirmatively that it existed at the very time the will was made. Peck v. Cary, 27 N. Y. 9, 17; Andress v. Weller, 3 N. J. Eq. 608.

2. The appellant's second insistment is that the codicil was the product of undue influence, exercised by George Elkinton over his father. George was the youngest son, and remained near his father while his brothers were at a distance; Franklin resided at Philadelphia, where he engaged in business; James lived at Bridgetown, and worked upon a steam-boat plying between that place and Philadelphia; and Joseph, although maintaining a home for his family at Pennsgrove, was a fisherman in the waters of North Carolina, and consequently almost always away from home. The father resided with Joseph's family, with whom Jacob Nixon, a witness for the respondent, also lived. Nixon was employed by Joseph as a clerk, in a small store that Joseph maintained in the basement in his dwelling. Nixon says that in September or October, 1869, he had occasion to be in Charles Elkinton's room, in Joseph's house; that Elkinton had been drinking, and had some papers, out of his iron safe, spread upon the bed; that he requested Nixon to put these papers in the safe, and that he, Nixon, did as he was directed, first, however, noticing that they consisted of four bonds, including one indorsed with the name of Franklin Elkinton. He also states that, on the following day, Franklin Elkinton's wife and his son Charles, then about 16 years old, and Louisa Vance, who is a daughter of the testator's sister, visited the house; that when they came the testator was under the influence of liquor; that the grandson Charles induced his grandfather to take him to the grandfather's room, from which, after three-quarters of an hour, he passed out through the...