In re Merrill, No. 3792.

• Court: United States State Supreme Court (New Jersey)
• Citation: 88 N.J.Eq. 261,102 A. 400
• Docket Number: No. 3792.
• Parties: In re MERRILL.
• Decision Date: 31 August 1917

102 A. 400
88 N.J.Eq. 261

In re MERRILL.

No. 3792.

Prerogative Court of New Jersey.

Aug. 31, 1917.

(Syllabus by the Court.)

102 A. 401

Rule issued by original act on the part of the Chancellor against Victor Merrill to show cause why he should not be attached for contempt of the Prerogative Court in facie curia?.

WALKER, Ordinary. Probate having been denied by the Middlesex county orphans' court of a paper writing purporting to be the last will and testament of Mary Van Orden Parker, deceased, an appeal was taken to the Prerogative Court from the decree denying such probate, by Victor Merrill, the executor and residuary legatee named in the alleged will, and such proceedings were thereupon had in the Prerogative Court that the cause on appeal came on to be heard before the Ordinary, at the state house in Trenton on Tuesday, July 10, 1917, and was argued by Winfield S. Angleman, Esq., of counsel for appellant, Victor Merrill, and by Roger Hinds, Esq., and by Edward F. Clark, Esq. (of the New York bar), of counsel for the respondents, on the transcript of proceedings and evidence and exhibits sent up to the Prerogative Court by the Middlesex county orphans' court, the Ordinaiy reserving decision of the question submitted.

After such submission, and on July 12, 1917, a letter bearing that date, addressed to "Hon. E. R. Walker, Trenton, N. J.," and postmarked "New York, July 12, 7 p. m. (1917)," with proper postage stamps thereon, was received by the Ordinary, in due course of mail, at his chambers in the city of Trenton, on the morning of July 13, 1917, the body of which letter is in typewriting, but which letter is signed in manuscript, and certain interlineations in the body thereof are also in manuscript, and by comparison by the Ordinary of the signature of Victor Merrill to the letter, and also the handwriting thereon, with documents admitted in evidence on the trial of the application for probate in the Middlesex county orphans' court, and sent up with the transcript and testimony, which were proved to be the handwriting of Victor Merrill, it appears that the letter so mailed to, and received by, the Ordinary, was signed by Victor Merrill in his own proper handwriting and is his letter, a true copy of which is as follows:

"July 12, 1917. "Hon. E. R. Walker, Trenton, N. J.—Most Honorable Sir: I hope and pray that you will pardon the step I have taken in obeying the irresistible impulse of my aching heart in its clamor for justice to send you these papers which are intended solely for your own private information only.

"It is not the gain of the money which legally and morally belongs to me which I am after nor its loss which hurts me; but it is the vindication of my character, the assurance of the right interpretation of my pure motives toward this testatrix, whom I highly esteemed and respected, that I seek and which have been so ruthlessly transformed into a conspiracy by these unscrupulous lawyers, in order to receive the 50 per cent. which the grandson has agreed to give them in case of success.

"As a proof to this, I am willing to sign any agreement that, if the will of Mary Van Orden Parker is probated, after my lawyers and other expenses are paid, I will turn over every dollar to any church, to any charitable or benevolent institution, that your honor, or any one selected by you, may direct. Not one penny do I want out of it. Certain prominent men and politicians of Perth Amboy, Elizabeth, and Metuchen have been so incensed by the conduct of these lawyers in their endeavor to break this will at any cost, and the attitude of the judge in allowing such a mass of irrelevant evidence, all tending to confuse and obscure the real issue. Their attention was so especially called to the judge's peculiar action when he actually declared to a Mrs. Schuenck (when on the witness stand) that he wanted to break the will and asked her to go home and make up some story to help him in breaking it (you will find in the record this astounding fact) that they decided to assign a man to attend to every session of the trial and keep a strict record of the case. This man's report resulted in the formation of a complaint of 54 legal size typewritten pages of very interesting reading, which they intend to place before the Legislature, a copy of which was sent to me for my signature, which I still i have unsigned, and if you so desire to look it

102 A. 402

up, I will mail it to you at any address that you may suggest. In this complaint Judge Daly is charged specifically with espousing the contestant's side, and showing malice and prejudice against the proponent. Then with a violation of all rules of law and evidence, etc., they make a heavy stress on the fact that he kept his decision pending for 6 months, and that when he finally did file his conclusion they declared that it was neither more or less than a mass of self-contradiction on the face of it, making the testatrix sane at one time and insane at another; a criminal evasion of the real issue, distortion of facts, and in many instances actual falsehoods. Then the fact that the judge has annexed the contestant's brief to his conclusion, and made it a part thereof, is too significant of either knavery or idiocy to require much explanation, although they do explain it to a considerable extent. My lawyer, Mr. Angleman, thought that this woman Passage was only indicted, when the truth is that she was convicted four times; once for assault and battery on her own mother, for which she served almost two years, twice for soliciting and disorderly conduct, serving 6 months on the Island under the name of Jennie Le Claire, and then convicted again for larceny and receiving stolen goods. This is her record as far as the detective which we have assigned to look her up could find But in her home town the Reverend Mr. Mortin declared to the detective that she is a degenerate of a type that would baffle the criminologist under what heading she could be properly classified. She is looked upon in her town as a contamination to other girls, and that sne will be arrested at sight if she is found there, as her carnal inclinations are bestial and unprintable, that she is a thief by nature, and truth and veracity are absolutely unknown virtues to her, and that even her own mother could not have her in the house.

"Begging your forgiveness for this liberty, have the honor, honorable sir, of being your most humble servant, the proponent,

"Victor Merrill, Plamfield, N. J.

«p g _Unfortunately that the day that this woman Passage was placed on the stand 1 was home sick, and my lawyers knew nothing of her, and this event was planned by the contestant's lawyer, as they had her in Klien s Hotel in New Brunswick."

In thus communicating privately to the Ordinary concerning the cause on appeal after the same was submitted to the Ordinary, and while it remained pending before him undecided, Victor Merrill, the proponent of Mrs. Mary Van Orden Parker's will for probate, has attempted to improperly influence the due administration of justice in the cause, for which, in the opinion of the Ordinary, he should be charged with contempt of the power, authority, dignity, and integrity of the Prerogative Court, and be required to answer the charge. On its face the contempt appears to be plain, and the question arises: Has the Prerogative Court power to punish for contempt, and, if so, what is the method of procedure?

However, before taking up those questions it will not be amiss to make some general analysis of Merrill's letter, and show why and to what extent it is a contempt.

Merrill's offer to sign an agreement that, if the will of Mary Van Orden Parker is probated, after his lawyers and other expenses are paid, he will turn over every dollar to any church, charitable or benevolent institution that the Ordinary or any one selected by him may direct, is in effect and in terms an offer to bribe the Ordinary; not with personal gain for him, it is true, but indirectly, by offering to donate the avails of the litigation to his nominee.

The assertion that certain prominent men and politicians have been incensed by the conduct of the lawyers for Mrs. Parker's heirs in their endeavor to defeat the will and the charge against them of a conspiracy in order to receive a percentage which the testatrix's grandson, it is alleged, has agreed to give them in case of success, is a contempt. It is a contempt of the dignity of the court for one of the litigants before it to denounce and abuse to the judge the lawyers representing the adversary party, because lawyers are officers of the court.

The abuse heaped upon Judge Daly in the letter is also a contempt of the dignity of the court, although Judge Daly, in his capacity of judge of the orphans' court of Middlesex county is not an officer of the Prerogative Court.

Statements in the letter going to impeach the witness Passage are also a contempt it is, of course, an impertinence and contempt for any one secretly to endeavor to disparage and impeach the reputation of a witness who has testified in open court. The time and place for such impeachment is in the court on the trial. In passing I perhaps should remark that very little, if anything, said against the Passage woman in the letter would be competent evidence to impeach her. Only convictions, not indictments, for crime, can be given in evidence to impeach a witness, and also evidence that in the community in which she lives her general reputation for truth and veracity is bad. I ought perhaps to state that Merrill inclosed to me a copy of an indictment, but not a conviction, of the Passage woman.

On the question of contempt, while the cases generally refer to contempts as against the power, authority, and dignity of the court, I am persuaded to add another term, namely, the integrity of the court, where, as in this case, the contempt includes the offer of a bribe; for surely a man who would...