In Re Heim's Will. Heim v. Bauer.

• Decision Date: 04 January 1945
• Docket Number: No. 228.,228.
• Citation: 40 A.2d 651
• Parties: In re HEIM'S WILL. HEIM et al. v. BAUER.
• Court: New Jersey Supreme Court

40 A.2d 651

In re HEIM'S WILL.HEIM et al.

v.BAUER.

No. 228.

Court of Errors and Appeals of New Jersey.

Jan. 4, 1945.

Appeal from Prerogative Court.

Proceeding in the matter of the probate of the alleged will of Julius Heim, deceased, by Howard Heim and others against Frederick E. Bauer. From a decree of the Prerogative Court, 39 A.2d 248, 22 N.J.Misc. 241, re-establishing probate and reversing decree of orphans' court confirming a master's report and setting aside probate allowed by surrogate, respondents appeal.

Decree reversed in accordance with opinion.

1. Where testamentary incapacity is alleged to arise from physical condition and mental derangement depending thereon, the burden of proving the incompetency is upon the contestants against probate.

2. The burden of proving undue influence to execute a will rests upon him who alleges it; but, while such burden does not shift merely because of a confidential relationship, without more, nevertheless other facts added thereto, as, for example, that the testator's mentality was so enfeebled that it could not well resist improper influence, or solicitude and action on the part of the dominant mind to see that the will was prepared and executed, or an arrangement for the presence of particular testamentary witnesses, or some such self-serving and suspicious element, will cause the burden to shift.

3. When, on a charge of exercising undue influence in the execution of a will, the person to whom the burden of proof has shifted is an attorney at law, acting in his professional capacity for a client, and is a beneficiary under the will, the testimony required to countervail the presumption must be impeccable and convincing.

4. An attorney at law, summoned to ‘settle the affairs' of a very sick client, suggested to the client that the latter ought to make a will and the client acquiesced and undertook to make a will, and gave directions as a result of which a will was drawn by the attorney leaving the great bulk of the estate to him, and he attended at the execution, bringing with him as witnesses two younger men who had been law students in his office and were then his law partners, and had no one else in the room, although the execution was at a hospital where presumably impartial persons were available as witnesses or observers, the burden on the issue of undue influence by the attorney in the execution of the will shifts to the attorney.

5. To be competent to execute a will a testator should be able to comprehend the property he is about to dispose of, the objects of his bounty, the meaning of the business in which he is engaged, the relation of each of these factors to the others, and the manner of distribution set forth in the will.

6. The facts of the case considered, and held that the proponent of the will, charged with the presumption of undue influence over the testator in the execution of the will, had not countervailed that presumption by testimony that was impeccable and convincing and that the probate of the will should be set aside.

John Drewen and Drewen & Nugent, all of Jersey City, for proponent of will.

Joseph Keane and Milton, McNulty & Augelli, all of Jersey City, and Kenneth J. Dawes and Constantine Donato, both of Trenton, for those opposing probate.

CASE, Justice.

Julius Heim, ninety years of age, died October 29, 1942, in the North Hudson Hospital, whither he had been taken on July 14th, preceding. A will was produced for probate by Frederick E. Bauer, respondent herein, an attorney at law of Union City, who had taken the data for the instrument on said July 14th, drawn and supervised the execution of the document on July 15th and was given, by the therms thereof, the entire estate of nearly $90,000 except decedent's realty-several lots in Union City, containing some dilapidated and almost untenantable houses, of the gross value of approximately $6,000. Heim, a widower, had lived alone in one of his houses. He was survived by a brother and a sister (Mr. Charles Heim and Mrs. Adeline Butterfield) who lived in California, by another sister (Mrs. Pauline Roggenbrodt) who lived in Union City and by children of deceased brothers and sisters. All of the next of kin, except one, challenged the validity of the will upon two grounds, (1) that the testator was incompetent, and (2) that the will was procured through the fraud and undue influence of the scrivener and favored legatee. Probate was allowed by the Surrogate of Hudson County. On appeal, the Hudson County Orphans' Court referred the matter to a master to take testimony and report. The Master's report, confirmed after the filing of exceptions, found that Heimlacked testamentary capacity on July 15, 1942, and that the disputed instrument was procured by undue and illegal influence exerted upon him by Bauer. The decree of the Orphans' Court setting aside the probate was appealed to the Prerogative Court and there reversed. We have the Prerogative Court decree reestablishing the probate before us for review.

We shall first state the fundamental legal principles regarding presumptions and burden of proof and then weigh the proofs upon those principles.

Where testamentary incapacity is alleged to arise from physical condition and mental derangement depending thereon, the burden of proving the incompetency is upon the contestants. In re McKinney's Estate, 86 N.J.Eq. 211, 98 A. 452.

The burden of proving undue influence to execute a will rests upon him who alleges it; but, while such burden does not shift merely because of the existence of a confidential relationship, without more, nevertheless other facts added thereto, as for example, that the testator's mentality was so enfeebled that it could not well resist improper influence, or solicitude and action on the part of the dominant mind to see that the will was prepared and executed, or an arrangement for the presence of particular testamentary witnesses, or some such self-serving and suspicious element, will cause the burden to shift. In re Neuman's Estate, 133 N.J.Eq. 532, 32 A.2d 826. And beyond that, where the person to whom the burden has shifted is an attorney at law and the will is drawn by him in his capacity as attorney and legal adviser to the testator and in his own favor, we think that the testimony required to countervail the presumption should be impeccable and convincing; a standard applied by Vice Chancellor Backes in Re Morrisey's Will, 91 N.J.Eq. 480, 111 A. 26, to persons occupying a confidential relationship even though not of professional origin. Upon those rules and the facts stated and yet to be stated, we find that a presumption of undue influence arose and that the burden of proof thereon was shifted to the respondent herein; and respondent concedes that he is properly charged with the burden upon that issue.

On June 2l, 1942, Charles Lincoln Heim, a nephew of the testator, in the habit of visiting the latter every two weeks, received a post card from one Frank Bakgardt (said to be Balgaretti) of 510 Eighth Street, Union City, stating that Julius Heim wished to see him on a ‘very important’ matter. Charles went to his uncle that afternoon. His testimony was that Julius was alone in the house, in bed, fully dressed even as to shoes and overcoat, and the bed was in ‘terrible’ condition from excrement. Julius was incoherent, and failed to recognize the witness. Charles again, on Sunday, July 12th, called upon Julius, and his testimony with regard to that visit was that there was the same physical and mental condition on the part of Julius and a like condition of filth of the bed (then extended to the floor); that Julius had one stocking and one shoe on and one stocking and one shoe off, but otherwise was fully clothed, including overcoat, with many bedclothes over him although the day was hot, the windows closed and the house stifling; that Julius was lying with his face toward the wall; that the witness shook him without response, raised him up in bed and said, ‘Uncle Julius, this is Charlie’ but got no recognition; that the sick man mumbled and made rambling, inept remarks not in accord with the facts. The witness was there for two hours and throughout that time was not recognized by his uncle.

On three different occasions during the first half of July, 1942, police cars were summoned to the Heim house. Officer Cereghino testified that in the ‘early part of July’ he was in a radio patrol car and received the call from headquarters. He went with his companion officer and saw Heim and also a neighbor, a young Italian woman named Millie Balgaretti. Heim was in bed with his clothes on. The house was upset and very dirty. The bed was soiled by bowel movements. The witness asked Heim what the matter was and got no answer. He asked Heim if he was sick and got no answer. Miss Balgaretti asked the officers to get Heim to the bathroom. They did that and brought him back to the bed and left. And Heim, whom the witness knew, said nothing to them during the entire time.

Officer Smith testified that he, too, was dispatched, by radio from headquarters, about July 7th, to Heim's home. He found Heim lying on the floor, dressed in long underwear, alongside the bed. No one else was in the house. The witness was there about twenty minutes. He questioned Heim but without response-‘could not get any information at all from him’-‘no answer at all.’ The witness, with his companion officer, put Heim back in bed. The witness saw one of Mr. Bauer's business cards, showing telephone number, lying on the table. He telephoned to the number and was asked to try to get Heim to go to the hospital and replied, ‘I cannot get any information whatever out of the man.’

Officer Shatajian, with a fellow officer, while in a radio car on July 11, 1942, received a like call and was instructed to investigate; ‘they figured it was a sick call, so they wanted to find out whether it would be an ambulance job.’ The officers found Heim fully...