In re Morrisey's Will

• Citation: 111 A. 26
• Parties: In re MORRISEY'S WILL.
• Decision Date: 11 June 1920
• Court: New Jersey Supreme Court

111 A. 26

In re MORRISEY'S WILL.

Prerogative Court of New Jersey.

June 11, 1920.

In the matter of the probate of the last will and testament of Catherine Morrisey. Probate denied.

See, also, 107 Atl. 70; 89 N. J. Eq. 237, 107 Atl. 895.

William D. WolfsKeil, of Elizabeth, and Edward Maxson, of Summit, for proponents.

Herbert Clark Gilson and William C. Gebhardt, both of Jersey City, for caveators.

BACKES, Vice Ordinary. This is a will contest. Catherine Morrisey executed her last will and testament in due statutory form February 9, 1916. She was a widow, and childless. Her next of kin were nephews and nieces. She gave her estate to the children of a deceased nephew, Frank and Leonard O'Brien and Anna O'Brien Flemming. The nephews and nieces oppose probate on the ground of incompetence, undue influence, and conspiracy.

Mrs. Morrisey was 80 and more when she died in March, 1919. She was of sturdy Irish stock, and in her time was rugged of body and strong of mind, illiterate, but keenly intelligent. Mrs. Morrisey and her husband came to Summit some 50 years ago. He kept a hotel, and she helped, and they accumulated considerable property. He died in the early nineties, and she continued the hotel business, and added to her possessions, leaving an estate valued at $40,000. After his death, the father of the beneficiaries was employed in the management of the hotel, and he and his family made their home with the widow until 1905, when another nephew and his family took their place. This nephew died three years later, and the hotel was given up. His family, known in this litigation as the "Grace Kelleys," stayed on and kept house for Mrs. Morrisey until December, 1915, when they were dispossessed, and Anna O'Brien Flemming, one of the beneficiaries, was installed, with her family. Two months later the will was executed in her and her brothers' favor. Mrs. Morrisey continued with the Flemmings until her death. The change from the Kelleys to the Flemmings came about in this manner: Mrs. Morrisey conceived, and not without cause, that her home had become the rendezvous of undesirables (low and dissolute Polacks, Italians and negroes); that drink was the order of the day; and that she had been robbed. That her home had been debauched and that the surroundings had become repulsive, and that she had, in fact, been robbed of $120 by one of the Kelley boys, is believable from Grace Kelley's testimony, and from what she told others. On the witness stand Grace blasely testified that the whisky bottle was ever-present and that they all drank freely, including Mrs. Morrisey. In her dilemma Mrs. Morrisey appealed to a Miss Rooney, whose home and mother she had visited daily for years, to get Frank O'Brien to rid her of the Kelleys, and on an afternoon in November, 1915, Frank and Mrs. Flemming spirited the old lady from the Rooney house to the home of their mother. It took a fortnight to eject the Kelleys, and when this was accomplished Mrs. Morrisey returned to her home in the care of the Flemmings. Mrs. Morrisey had not been apprised of the plan for getting rid of the Kelleys, and was undoubtedly taken by surprise when suddenly removed from the Rooney home; indeed, it is questionable whether, in her precarious condition, she comprehended at all the things that were being done, for it appears that then and for some time afterwards her mental faculties were seriously impaired.

1. Counsel characterized the incident of Mrs. Morrisey's removal to the O'Brien home as kidnapping, and as the initial step in a conspiracy to reach the old lady's fortune. The charge of ulterior motive and evil design upon her estate is completely refuted by this single outstanding fact: When Mrs. Morrisey was taken to the O'Brien home, Mary Ann Kelley, of Carbondale, Pa., the leading spirit of the contestants, and who claims to have been her aunt's favorite niece, was sent for by the O'Briens, and she and her brother responded with their mourning trappings, expecting to attend their aunt's funeral. Mary Ann, being apprised of her aunt's predicament, was asked by the O'Briens to make her home with Mrs. Morrisey and care for her. This she flatly refused to do, saying she cared more "for a little corner in Carbondale than the whole of Summit." Surely, if the O'Briens had schemed to possess themselves of Mrs. Morrisey's property, by gift or will, they would not have put Mary Ann in position to spoil the opportunity at the very inception.

2. In July, 1917, a commission de lunatico inquirendo issued out of the Court of Chancery on the motion of the present contestants, or some of them, and Mrs. Morrisey was found to be of unsound mind as of July 3, 1916, approximately five mouths after she had made her will. The issue of insanity was bitterly contested, and counsel agreed to use at this hearing the testimony there taken.

Mrs. Morrisey was a senile dement at the time of her death; she died of pneumonia. She had been a victim of this disease—mental degeneracy due to old age—for at least ten years. Three months before the will was executed, and shortly after she had been taken to the O'Brien home, Dr. Thomas P. Prout, a specialist in mental diseases, examined her to determine whether she had testamentary capacity, and found her hopelessly incompetent. Later Mr. McAdams, her attorney, who had meanwhile been pressed by Mrs. Morrisey to draw her will, observed improvement in her condition and asked Dr. Prout to again examine her. The doctor was skeptical, but, demurringly consented, and was amazed at the change. Two or three more visits, and careful tests at each, convinced him that Mrs. Morrisey had revived sufficiently to dispose of her property by will, and so informed Mr. McAdams. On the witness stand he expressed confidence in his judgment and reiterated his unqualified opinion of Mrs. Morrisey's fitness. On the other hand, the late Dr. Britton D. Evans, of Morris Plains Asylum, who examined Mrs. Morrisey in August, 1917, with a view to testifying in the lunacy proceedings, and found her bereft, there and here stated that she was incompetent when she made her will, Drs. William J. Arlitz and George W. King, gentlemen distinguished in the treatment of mental disorders, basing their opinion upon the facts related by Dr. Evans of his examination, also gave as their judgment that the testatrix lacked testamentary capacity in February, 1916.

The four physicians were of one mind— that the disease had its incipiency at least ten years before the will was made, and that at the time of the lunacy proceedings, in the latter part of 1917, it was terminal in type. And upon this diagnosis Drs. Evans, Arlitz, and King expressed the conviction that in view of the inexorable ravages of the disease the restoration of Mrs. Morrisey's faculties, as described by Dr. Prout, was impossible. Dr. Evans went so far as to say that if it occurred it was a miracle. The truth, however, is that...