In re Halton's Estate

• Decision Date: 30 July 1932
• Citation: 161 A. 809
• Parties: In re HALTON'S ESTATE.
• Court: New Jersey Supreme Court

161 A. 809

In re HALTON'S ESTATE.

Prerogative Court of New Jersey.

July 30, 1932.

Syllabus by the Court.

1. The presumption of law is in favor of testamentary capacity, and those who insist upon the contrary have the burden of proof.

2. The question of testamentary capacity is one of fact to be determined by the court, and opinions, expert or otherwise, are mere aids to the court in reaching such determination, but are in no sense binding.

3. The test of testamentary capacity is: Were the testator's mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will?

4. This court will not reject a will merely because its provisions appear to the court to be unnatural or unjust; to do so would be to substitute the court's judgment for that of the testator whose right it is to dispose of his property as he pleases, unrestricted except by the law of his domicile.

5. In the absence of an attestation clause, the proponent of a will has the burden of proving affirmatively that all the requirements of the statute respecting execution have been met.

6. The requisite formalities are: (1) The will must be in writing; (2) it must be signed by the testator; (3) the testator must sign, or acknowledge his signature, in the presence of two witnesses, both present at the same time; (4) the writing must be declared by the testator to be his last will in the presence of two witnesses, both present at the same time; (5) the two witnesses must subscribe their names to the will, as witnesses, in the presence of the testator.

7. Everything required to be done by the testator must precede, in point of time, the subscription of the testamentary witnesses.

8. It is not necessary that the testator actually sign the will in the presence of the witnesses, or that they actually see him sign it, providing he acknowledges the signature thereto to be his will in the presence of both witnesses.

9. No particular formality in the publication of a will by a testator is required. Such publication may be by words, acts, or signs, either by the testator or some one in his presence and with his knowledge, sufficient to make known to the witnesses the fact that the paper produced is his will and that they are desired to attest it as such.

10. Such publication may be made by the testator before, after, or contemporaneously with the making or acknowledgment of the signature by him.

11. The making of a scroll or seal by the testator after his signature is a sufficient acknowledgment of the signature even though no words are spoken.

12. The proponent of a will is not bound by the testimony of a subscribing witness whom he calls to the witness stand. If such a witness unexpectedly proves hostile, and testifies that some one or more of the statutory requirements have not been complied with, or testifies against the testamentary capacity of the testator, he may be contradicted by other witnesses; and inconsistent statements previously made by such witness to counsel may be proved by such counsel who may, with propriety, be sworn for that purpose.

13. As a matter of law, a person who as a subscribing witness to a will goes upon the stand and upon his oath asserts to be false that which in the execution of the will he, by a most solemn act, asserted to be true, deserves to be discredited and is worthy of little belief.

Appeal from Orphans' Court, Ocean County.

Proceedings in the matter of the estate of James D. Halton, deceased, wherein a petition was filed for the probate of an alleged last will and testament. From an order denying probate of the alleged last will and testament, from part of an order allowing counsel fees to the proctors for the caveatrix, and from an order directing the administrator pendente lite to pay to, the widow certain moneys from the estate, appeals were taken.

First order reversed; appeal from the second order dismissed by consent; and third order set aside, in accordance with opinion.

James Mercer Davis, of Camden, and W. Horace Hepburn, Jr., of Philadelphia, Pa., for appellants.

McCarthy & McTague, of Jersey City, for respondents.

BERRY, Vice Ordinary.

This is an appeal from an order of the Ocean county orphans' court denying probate of the alleged last will and testament of James D. Halton, deceased, and from the allowance of counsel fees to the proctors for the caveatrix-respondent. The appeal also brings up for review an order of the Ocean county orphans' court directing the administrator pendente lite to pay to the widow of the decedent an undetermined amount sufficient to pay outstanding bills for necessities incurred by the widow between the date of the decedent's death and the entry of said order on March 31, 1932, and also directing said administrator to pay the said widow $50 per week "for her support and maintenance," "from the income accruing to her interest in said estate." The widow, Mae U. Halton, filed a caveat against the probate of the alleged will, which was drawn by Thomas H. Halton, a brother of the decedent, at about 9 a. m. on May 6, 1930, in the decedent's room at Paul Kimball Hospital, Lakewood, N. J., a few moments before the decedent was taken to the operating room of said hospital for an operation from which he subsequently died. The will is in the following form:

"Last Will and Testament of James D. Halton.

"I, James D. Halton being of sound mind do hereby bequeth to my wife May one-half of my total estate, after payment of debts, eighty per cent to be held in trust for her during her life and at her death to paid to my nephews and neices Thomas Halton, Jr., Elsie Halton Asbury, Thomas Lake and May Ellen Lake.

"The remaining one half of my estate to be given to the nephews and neices above mentioned in equal portions.

"My body to be cremated and the ashes scattered over Barnegat Bay.

"Signed and witnesses this 6th day of May 1930.

"[Seal.] James D. Halton [Seal.] "Witnesses: [Seal.]

"Jules Bierach M D

"T. H. Halton."

The grounds upon which this alleged will is attacked are stated by the court below to be:

1. That it was not executed in accordance with the statutory requirements.

2. Mental incapacity of the decedent.

3. That it was the product of undue influence.

The orphans' court decided that the will was not executed in accordance with the statutory requirements and denied probate on that ground alone, and for that reason deemed it unnecessary to pass upon the other two grounds of attack.

I have carefully read and considered the voluminous testimony taken below, together with that taken in this court on this appeal, and have also considered the briefs of counsel.

I will now dispose of the grounds of attack on the alleged will in the inverse order of their statement by the orphans' court.

I. Undue Influence.

There is, in the whole record, not a scintilla of evidence indicating that the alleged will was the product of any influence, undue or otherwise, exerted upon the mind of the decedent by any person or persons, and this ground of attack may be dismissed without further consideration.

II. Mental Incapacity.

The presumption of law is in favor of testamentary capacity, and those who insist upon the contrary have the burden of proof. Whitenack v. Stryker, 2 N. J. Eq. 8; Elkinton v. Brick, 44 N. J. Eq. 154, 15 A. 391, 1 L. R. A. 161; McCoon v. Allen, 45 N. J. Eq. 708, 17 A. 820; In re Craft's Estate, 85 N. J. Eq. 125, 94 A. 606; In re Shimer's Will (N. J. Prerog.) 103 A. 383; 1 Underhill, 106, par. 86.

In the court below there was the usual array of medical experts, some of whom testified that the decedent was of insufficient mental capacity to make a will, and others of whom testified that he was fully capable. In number these witnesses were about equally divided. Other witnesses also expressed their opinions of the decedent's mental capacity; but the court is not obliged to accept the opinion of any witness or group of witnesses, medical or otherwise. In Loveridge v. Brown, 98 N. J. Eq. 381, 129 A. 131, 133, the Court of Errors and Appeals, adopting the opinion of Judge Flannagan of the Essex county orphans' court, held that such abstract opinions were of no importance, and "that no judicial tribunal would be justified in deciding against the capacity of a testator upon the mere opinion of witnesses, however numerous or respectable. The opinion of a witness must be brought to the test of facts, that the court may judge to what weight the opinion is entitled." See, also, Stackhouse v. Horton, 15 N. J. Eq. 202, at page 208; Waddington v. Buzby, 45 N. J. Eq. 173, 16 A. 690, 14 Am. St. Rep. 706. The question of testamentary capacity is one of fact to be determined by the court, and opinions, expert or otherwise, are mere aids to the court in reaching such determination but are in no sense binding. In view of the facts disclosed by the record, I have no hesitancy in saying that the decedent was mentally competent to make a will at the time the paper writing here involved was prepared and executed. This finding is not necessarily any reflection upon those expert medical men who gave it as their opinion that the decedent was incompetent to make a will. Their opinions, and, indeed, I think the opinions of most, if not all, of the medical experts who testified on this point, were apparently based upon a mistaken idea of what constitutes testamentary capacity. As is usual in cases of this kind, the hypothetical questions propounded in the court below to these experts were couched in impressive language, which, I think, tended to magnify the thought that an extraordinary, or at least an ordinary, mentality is required for testamentary capacity. This impression often results from the continued repetition of such words as "sound and disposing mind and memory," "comprehension of the character, nature and location of his property and the natural objects of his bounty," and the like formulae by...