In Re Alper's Will.

• Decision Date: 29 July 1948
• Parties: In re ALPER'S WILL.
• Court: New Jersey Prerogative Court

60 A.2d 320

In re ALPER'S WILL.

Prerogative Court of New Jersey.

July 29, 1948.

Proceeding in the matter of the appeal from the decree of the Essex County Orphans' Court admitting to probate a certain paper and writing as the last will and testament of Morris Alper, deceased.

Decree affirmed.

Syllabus by the Court

.

1. It is neither unnatural nor unjust for a testator to bestow a larger share of his estate upon that one of his several children who devoted many years of her life in ministering to him during long, sustained illness. Such kindness and self-sacrifice may influence provisions of the will but do not constitute undue influence.

2. Declarations alleged to have been made by an attesting witness, since deceased, which seek or tend to contradict facts stated or implicit in the attestation clause, are inadmissible. They constitute hearsay. Even if received, the declarant may be regarded as discredited and his declarations entitled to little weight.

3. Where a testator retains possession of his will for more than six years following its execution, such retention is strong proof of the testator's continuing approval of the provisions of the will and strongly negates a charge of undue influence.

4. Where a testator requests another to keep confidential and unrevealed the fact of the making of his will, the observance of such request does not constitute concealment.

5. Proofs examined and held to establish, as found by the Orphans' Court, that the will was not the product of undue influence.

Milton M. & Adrian M. Unger, of Newark (Milton M. Unger, of Newark, of counsel), for caveatrix-appellant.

Ruback & Albach, of Newark (Meyer E. Ruback and Joseph A. Weisman, both of Newark, of counsel), for proponent-respondent.

STEIN, Vice Ordinary.

This is an appeal from an order of the Essex County Orphans' Court, entered April 9, 1948, admitting to probate the document offered as the last will and testament of Morris Alper, deceased. The proponent, Theresa Alper, is a daughter of the testator, as is the caveatrix, Goldye A. Shapiro. In the court below the caveat was sought to be sustained, both in the ‘Grounds of Caveat’ and in the testimony adduced by the caveatrix, on the ground that the will was the product of undue influence exerted upon the testator by his daughter Theresa, she being named in the will as the largest single beneficiary and as the sole executrix. After a very searching trial of the facts heard by Advisory Master Alfred C. Clapp, to whom the contest was referred by the Essex County Orphans' Court, the conclusion reached was that the offered will was not the product of any undue influence. In its opinion the Orphans' Court expressed the view that the provisions in the will in favor of the proponent (she was to receive 40% as against 60% to the other beneficiaries) were not unnatural in view of ‘the attentions and care which Theresa gave to her father.’

The testator made his will on May 4, 1939. He died more than six years later, on July 12, 1945. In his will he devised all his real estate, described in the will by specific location, to seven of his eight children and to the children of an eighth child. That eighth child is the daughter Goldye, the appellant herein. The said real estate was devised to them in the following stated proportions:

To Theresa Alper (daughter) an undivided 40%

To Jerome Alper (son) an undivided 5%

To Pearl Alper (daughter) an undivided 10%

To Cele Weitzman (daughter) an undivided 5%

To Mildred Alper (daughter) an undivided 10%

To Nathaniel Alper (son) an undivided 10%

To Harold Alper (son) an undivided 10%

To Theresa Alper, as trustee for Lauretta Shapiro, Elaine Hinda Shapiro, Roberta Shapiro and Roslyn Shapiro (children of the daughter Goldye A. Shapiro) an undivided 10%.

It is undisputed that for about sixteen or seventeen years preceding his death the testator suffered from cardiac disease, bronchial distrubance, hernia and other physical disorders. No claim has been made that any of these ailments in any degree affected the testator's mind or impaired his memory. In fact, the testimony shows that one of his sons, a practicing lawyer, prepared and submitted for execution by the testator a power of attorney and a deed of conveyance several times within the few weeks of the latter's death, the last time being the night before the testator died. The only medical testimony in the case was furnished by Doctor Edwin Steiner, who treated the testator for about sixteen years next preceding his death. Concerning that witness the Orphans' Court in its opinion expressed its strong impression of his veracity. The doctor testified that the testator's mind was very acute and free of disturbances and that this healthy state of mind continued throughout all the years up to the time of death. The medical proof also established that at all times up to the occurrence of death the testator's blood pressure was ‘perfectly normal.’ On cross-examination the doctor was asked whether the bodily ailments from which the testator was suffering left him less liable to resist outside influences. The medical opinion was that those bodily ailments in no way affected the testator's mind. It was also established that throughout the years of his physical disability the testator kept in his own handwriting books of account relating to the management of several tenement houses from which he was receiving a monthly rental yield, that he was a reader of the daily press and read with regularity the liturgy of his faith. The Orphans' Court described the testator as ‘a man of some will power,’ and there exists in my mind no doubt that despite his feebleness of body the testator was at the time of the making of the will a person of sharp mind and unimpaired mentality and that this condition continued unchanged to the time of his death. It is also significant that in the contest over his will, which was fought with great bitterness by those dissatisfied with its terms, there has been no suggestion of testamentary inadequacy. The contest was limited strictly to undue influence charged against the daughter Theresa.

At the time of the testator's death his daughter Theresa was about 49 years of age. Until she was about 33 years of age she worked at various employments, the earnings of which were turned over to her parents. In April of 1929 the mother died and Theresa took over the management of her father's home. He never remarried. From that time until his death, sixteen years later, she did the shopping, cooking, mending and cleaning required by the family, which consisted of her father and those of the children who remained at home until their respective marriages. That this was a considerable task would appear from the fact that at the time the mother died the household consisted of the father and six children and the homestead contained ten rooms. In addition to these domestic duties, she ministered to her father's needs, he being already an invalid. She prepared his meals, and as his illness progressed took care of bathing, dressing and feeding him. She also attended to his business needs, his income being derived from some tenement houses. Theresa supervised the making and repairs and personally did the collecting of the rents. The testimony shows that she herself performed manual labor in relation to these tenement houses, cleaning out and fixing up vacant apartments so as to make them presentable for renting. Occasionally she herself would do the painting of the flats and perform minor plumbing and carpenter work. On the whole, she not only ran a large household but also conducted her father's only business, that of managing cold water tenements. Her devotion to him was constant. In the winter of 1937-1938, while in Florida, he became seriously ill and remained there in a hospital for about six weeks. She immediately went to Florida and while there cooked his food for him and brought it to the hospital, thereby enabling him to eat according to the Hebrew dietary laws. She was more than a housekeeper; she was her father's practical nurse. As early as 1926 she had taken a course in hygiene and practical nursing and bedside care and sterilization. During the sixteen years that Theresa ministered not alone to her father but to all the children who remained at home, those children either went to business or pursued professional studies, and eventually each of those other children was married and founded his or her own separate home, with the single exception of the son Harold, who, though married, seems to have remained at home except for a period of absence in the military service. While the other children were at home they enjoyed opportunities which somehow seem to have been denied to Theresa. In 1928 both parents went to Europe for about three months, taking with them the son Jerome. In 1929 the father went to Florida and took with him his daughter Pearl and his son Nathaniel. In 1931 he again went to Europe and took Nathaniel with him. In 1933 he made a third trip to Europe, this time taking his daughter Mildred with him. Theresa was never taken on any of these holidays but was promised future consideration.

Theresa never married. We need not speculate about the reason for this, for it is not an unknown thing for a daughter so to devote herself to the interest of a parent as to make that interest a paramount influence and purpose in life. That the father was not insensible to Theresa's devotion and service appears from the lips of the disinterested witnesses. He talked to Doctor Steiner about Theresa. He said that he was concerned about her because she was the only one in the family that was really alone with no means of taking care of herself, and he told the doctor that he wished to make provision for her. He spoke of her as the girl ‘who was taking care of all his needs day and night, with no chance of enjoyment of anything, because she was taking care of him all the time.’ The...