In re McKinney's Estate

• Decision Date: 19 June 1916
• Docket Number: Nos. 78, 85.,s. 78, 85.
• Citation: 98 A. 452
• Parties: In re McKINNEY'S ESTATE.
• Court: New Jersey Supreme Court

98 A. 452

In re McKINNEY'S ESTATE.

Nos. 78, 85.

Court of Errors and Appeals of New Jersey.

June 19, 1916.

Appeal from Prerogative Court.

In the matter of the estate of Frederica C. McKinney, deceased. From a decree of the orphans' court that testatrix lacked testamentary capacity, and that probate of her will be refused, there was an appeal to the prerogative court, and an appeal from its decree affirming. Decree reversed in part and affirmed in part.

Ralph E. Lum, of Newark, for appellant, Robert H. McCarter and Arthur F. Egner, both of Newark, for appellee.

KALISCH, J. The controversy in this case concerned the execution of a paper writing purporting to be the last will and testament of Frederica C. McKinney, deceased. The respondent filed a caveat against the probate of the will. His attack upon it was: Firstly, that the testatrix, at the time of its alleged execution, lacked testamentary capacity to make a will; secondly, that the will was the result of undue influence exercised by the beneficiaries named therein. The Essex county orphans' court decided that the testatrix lacked testamentary capacity and decreed that probate of the will be refused. From that decree the appellants appealed to the prerogative court, and that court affirmed the decree of the orphans' court upon the like ground. The case is before us for review on an appeal by the appellants from the decree of the prerogative court.

The two principal questions presented for decision by this appeal are whether the testimony before the court below, and now under review, will reasonably support a finding that the testatrix lacked testamentary capacity when she executed the will, and, if the testimony fails in that respect, whether it will reasonably support a finding to the effect that the beneficiaries named in the will exercised undue influence upon the testatrix.

An examination of the testimony in the case shows that the testatrix was 79 years of age, and that she made the will in dispute In her last illness, and about 24 hours before she died. The only property that she owned was a piece of improved real estate, estimated to be worth from $15,000 to $20,000, which she originally acquired by her husband's will for "the term of her natural life or widowhood." The testatrix remained a widow. The property was subject to a mortgage. By the terms of the will the testatrix was obliged to keep up the premises and to have the appellant "carefully instructed and educated at the expense of the estate" until he shall have attained the age of 16 years. It appears that the appellant, McKinney, was an orphan and no relation to either the testatrix or her husband, but was taken by them, treated and reared as a member of the family from the time that he was an infant. At the time of the death of the husband of the testatrix the appellant, McKinney, was between 11 and 12 years of age. The case shows that the testatrix was obliged to expend considerable sums of money in carrying out the behests of her husband's will and in supporting the father of the respondent, who occupied a portion of the demised premises free of rent, and another member of the family, which caused the interest on the mortgage and taxes to fall in arrear; the mortgage was foreclosed, and the property sold and the testatrix bought in the same, In July, 1888, negotiating a new mortgage to cover the arrears. Charles F. McKinney, the grandson and respondent in this case, was the only descendant lineally. In 1909, the testatrix made her will, and after making bequests to various friends of specific sums of money and a bequest to the appellant, McKinney, whom she designated as her godchild, she bequeathed and devised the rest of her personal and real estate to the respondent, and made him one of her executors. Some time subsequent to the making of the will the testatrix consulted with John Monteith, her lawyer, who drew the will, as to her legal rights to sell the real estate. It appears that this inquiry was prompted by statements made to the testatrix by her grandson, to the effect that she had only a life interest in the property, and therefore no legal right to dispose of the fee, and that if she attempted to make any disposition of the same, he would start legal proceedings to restrain her. In the month of January, 1914, the respondent filed his bill of complaint in the Court of Chancery against his grandmother, attacking her title to the property, and claiming the same in his own right, as remainderman, and asking that she be made to account for the income received by her from the property, and that she be made to pay and cancel a mortgage of $1,000 which existed on the property. The testatrix was in poor financial circumstances. Her income from the property, when fully rented, was about $71 a month. The suit against her proved a source of great anguish and a burden to her because of the undutiful conduct of her grandson, and because she was compelled to go to the expense of $100 in employing Mr. Monteith to defend her, which sum she could ill afford to pay, but which she did manage to pay, in two installments.

Bearing in mind the foregoing facts it is not to be wondered at that the testatrix deemed the respondent to be unworthy as an object of her bounty. Indeed, it would have been a solecism in human conduct if the testatrix, in view of the anguish her grandson had deliberately added to the infirmities of her age, had noticed him in the will, made in her last illness. While it is true that the respondent had agreed with Mr. Monteith to discontinue the suit against his grandmother, before she made the will in dispute it could hardly be expected that the sting of the respondent's ungrateful behavior which put his grandmother to expense and financial strait, of which she bitterly complained, and the exhibition of the respondent's selfish conduct throughout, had been effaced from her thoughts when she was called upon, by the lawyer who drew the will, to mention those who were to benefit by its provisions.

We now approach the consideration of the first contention of counsel for respondent that the testatrix, at the time the will in dispute was executed lacked testamentary capacity. The specific charge made is that at the time when it is alleged that the will in controversy was executed by the testatrix she was unconscious, and hence incapable of making a will. The burden of establishing this proposition was on the contestant. The facts surrounding the making of the will are briefly these: On Friday, June 19, 1914, the testatrix was taken seriously ill. Dr. Phelan, the family physician, found her suffering from edema of the lungs and part of the throat, which, as he testified, caused difficulty in swallowing and air hunger. She had difficulty in breathing and speaking. On the following day, Saturday, he found her a "little improved." On the next day, Sunday morning, he found that the edema had not progressed much, and thought that she was a little bit improved. On the succeeding Monday, the 22d day of June, the doctor visited his patient three times. His first visit was made at 10 o'clock in the morning, and he testified that he found her a great deal worse than on Sunday; there was an extension of the edema. The doctor on his direct examination was asked:

"Q. Did you have any difficulty on your Monday morning visit, in getting her attention?"

He answered:

"Why, her eyes seemed active, but there was no conversation."

When asked whether he could get her attention, he said he could, but could not get her to speak. The doctor visited his patient the second time on that day about 10 minutes after 4 o'clock, and remained with her about 20 minutes. He testified that he found the edema spreading and the condition of the patient worse; that the intelligence of a patient in that condition is all right, but the difficulty in breathing occupies the patient's mind to such an extent as to prevent giving attention to anything else. On his cross-examination, the...